Citation Nr: 1753743	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  11-15 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a right ankle disorder, including as secondary to the service-connected bilateral pes planus with bilateral hallux valgus and left sinus tarsitis.

2.  Entitlement to a higher initial disability rating for the service-connected left ankle traumatic arthritis (left ankle disability) in excess of 10 percent from August 31, 2009.

3.  Entitlement to a higher initial disability rating for the service-connected bilateral pes planus with bilateral hallux valgus and left sinus tarsitis (bilateral foot disability) in excess of 30 percent from August 31, 2009 to September 30, 2015.

4.  Entitlement to a higher initial disability rating for the service-connected adjustment disorder with anxiety (psychiatric disorder) in excess of 70 percent from September 12, 2011.

5.  Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) from August 31, 2009.


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

E. Choi, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from November 1965 to November 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2010, December 2010, and July 2013 rating decisions of the RO in Roanoke, Virginia.  The January 2010 rating decision, in pertinent part, denied service connection for a right ankle disability.  The December 2010 rating decision granted service connection for a left ankle disability and a bilateral foot disability, and assigned initial disability ratings of 10 percent and 30 percent, respectively, from August 31, 2009.  The July 2013 rating decision, in pertinent part, granted service connection for a psychiatric disorder and assigned an initial 70 percent disability rating from September 12, 2011, and denied entitlement to a TDIU.

Additionally, a July 2016 rating decision granted a higher initial rating for the bilateral foot disability, assigning a 50 percent disability rating from September 30, 2015.  Although the maximum rating has been assigned for the bilateral foot disability for part of the initial rating period from September 30, 2015, as reflected in the July 2016 rating decision, the issue remains in appellate status because the maximum rating has not been assigned for the initial rating period from August 31, 2009 to September 30, 2015.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

In June 2017, the Veteran testified at a Board Videoconference hearing in Roanoke, Virginia, before the undersigned Veterans Law Judge sitting in Washington, D.C.  A transcript of the hearing has been associated with the electronic file.  The Board has reviewed the electronic file on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case.


FINDINGS OF FACT

1.	The Veteran does not have a current right ankle disability.

2.	For the entire initial rating period on appeal from August 31, 2009, the service-connected left ankle disability has been manifested by marked limitation of motion, without malunion of the os calcis or astragalus, and/or ankylosis of the ankle, subastragalar joint, or tarsal joint, and the Veteran did not undergo an astragalectomy.

3.	For the initial rating period on appeal from August 31, 2009 to September 20, 2015, the service-connected bilateral foot disability has been manifested by severe bilateral pes planus, objective evidence of moderate deformity, pain on manipulation and use, swelling, and callosities with symptoms relieved by use of custom orthotics, and has not more nearly approximated pronounced bilateral pes planus, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, without improvement by orthopedic shoes or appliances.

4.	For the entire initial rating period on appeal from September 12, 2011, the service-connected psychiatric disorder has been manifested by 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, occasional suicidal thoughts, with symptoms controlled by continuous medication.

5.	For the entire period from August 31, 2009, the Veteran has not been rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as the result of service-connected disabilities.


CONCLUSIONS OF LAW

1.	The criteria for service connection for a right ankle disorder, including as secondary to the service-connected bilateral foot disability, have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017).

2.	Resolving all reasonable doubt in favor of the Veteran, for the initial rating period on appeal from August 31, 2009, the criteria for a higher 20 percent disability rating for the left ankle disability have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).

3.	For the initial rating period on appeal from August 31, 2009 to September 30, 2015, the criteria for a higher initial disability rating in excess of 30 percent for the bilateral foot disability have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017).

4.	For the entire initial rating period on appeal from September 12, 2011, the criteria for a higher initial disability rating in excess of 70 percent for the psychiatric disorder have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9440 (2017).

5.	For the entire period from August 31, 2009, the criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017).  Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the issue of service connection for a right ankle disability, the RO provided notice to the Veteran in September 2009, prior to the January 2010 rating decision that denied service connection.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned.

The Veteran is also challenging the initial disability rating assigned following the grant of service connection for a left ankle disability, bilateral foot disability, and psychiatric disorder.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 
483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of a Notice of Disagreement).  With respect to the issue of a higher initial disability rating for a left ankle disability, bilateral foot disability, and psychiatric disorder, no additional notice is required regarding this downstream element of the service connection claim.  Thus, the Board concludes that VA satisfied its duty to notify the Veteran.

VA has also satisfied its duty to assist the Veteran in the development of the claims by fulfilling its duty to seek and assist in the procurement of relevant records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  Specifically, the information and evidence that have been associated with the claims file includes the military personnel records, service treatment records, VA treatment records, Social Security Administration (SSA) records, private treatment records, VA examination reports, and lay statements.

The Veteran was afforded VA examinations in November 2009, November 2010, August 2012, and September 2015, the examination reports for which are of record.  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The November 2009, November 2010, August 2012, and September 2015 VA examination reports reflect that the VA examiners reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted an in-person examination, and provided detailed findings supported by clinical testing; the November 2010 and August 2012 VA examiners also provided opinions with supporting rationale.

Based on the foregoing, the Board finds that all relevant documentation has been secured and all relevant facts have been developed.  There remains no question as to the substantial completeness of the issues on appeal.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a).

Service Connection for a Right Ankle Disability

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury.  To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 
26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In rendering a decision on appeal, the Board must 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").

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran generally contends that a right ankle disability is the result of an injury sustained during basic training when he was provided with boots that did not properly fit his feet.  The Veteran also asserts that a right ankle disability is caused by the service-connected bilateral foot disability.  Alternatively, the Veteran claims that right ankle arthritis is the result of exposure to contaminated water at Camp Lejeune, North Carolina.  See June 2017 Board hearing transcript.

After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the Veteran complained of right ankle pain during service, but does not have, nor has he had at any time proximate to or during the course of this appeal, a current right ankle disability.  A December 1965 service treatment record shows the Veteran complained of right ankle pain every day since he started basic training; the service examiner diagnosed pes planus, second degree.  Subsequent service treatment records do not contain any complaints, treatment, or diagnosis for a right ankle disability, and November 1966 and November 1969 service examination reports reflect the lower extremities were found to be clinically normal.  Post-service treatment records similarly do not contain any specific complaints, treatment, or diagnosis for a right ankle disability, with the exception of the November 2010 VA examination report.

In November 2010, the Veteran was provided with a VA examination of both ankles.  During the November 2010 VA examination, the Veteran reported that while he injured the left ankle during service, the right ankle did not become symptomatic until approximately 1970, after service separation, when he began using shoe inserts to treat the service-connected bilateral foot disability.  The Veteran also reported that pain medication provided complete relief of the right ankle symptoms.  Additionally, the November 2010 VA examination report shows the Veteran endorsed right ankle symptoms of pain, stiffness, decreased speed of joint motion, and tenderness.

Upon examination in November 2010, the right ankle range of motion was to 10 degrees of dorsiflexion (normal is to 20 degrees), and full range of motion in plantar flexion, without objective evidence of painful motion with dorsiflexion or plantar flexion; the VA examiner noted findings of crepitus in the right ankle, without instability or tendon abnormality.  The November 2010 VA examination report reflects negative findings for constitutional symptoms of arthritis, incapacitating episodes of arthritis, and presence of inflammatory arthritis.  X-rays conducted during the November 2010 VA examination revealed a normal right ankle.  

Nonetheless, the November 2010 VA examiner indicated a diagnosis of right ankle arthritis; however, in providing an opinion that the Veteran's right ankle condition is less likely than not due to the right ankle pain reported during service or secondary to any diagnosed bilateral foot disability, the VA examiner explained that current VA treatment records do not indicate any sequela of the in-service right ankle pain or an ongoing right ankle pathology.  As such, the VA examiner opined that the Veteran's right ankle condition is most likely due to the "wear and tear" of the aging process and less likely due to military service or secondary to the service-connected bilateral foot disability.

Aside from the single indication in the November 2010 VA examination report of a diagnosis for right ankle arthritis, which contradicts the X-ray findings revealing a normal right ankle, subsequent VA examination reports reflect negative findings for arthritis in the right ankle, or any other right ankle pathology.  An August 2012 VA examination report shows a diagnosis was rendered for the left ankle, but no diagnosis was rendered for the right ankle; imaging studies of the ankles only revealed degenerative or traumatic arthritis in the left ankle.

In September 2015, the Veteran underwent another VA examination of both ankles.  The September 2015 VA examination report reflects a diagnosis for traumatic arthritis of the left ankle, but no diagnosis was rendered for the right ankle.  The September 2015 VA examiner noted that the Veteran reported having chronic right ankle pain, but that there is no current diagnosis of a right ankle disability; imaging studies of the right ankle done during the September 2015 VA examination were negative.  

After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of a current right ankle disability.  Although the November 2010 VA examination report indicates a diagnosis for right ankle arthritis, such diagnosis is contrary to X-rays done during the November 2010 VA examination showing a normal right ankle.  Further, subsequent imaging studies of the right ankle done during the August 2012 and September 2015 VA examinations confirm that the right ankle is normal; thus, the single notation in the November 2010 VA examination report of a diagnosis for right ankle arthritis is outweighed by the radiological findings in November 2010, August 2012, and September 2015 revealing negative findings for arthritis in the right ankle.  

While the November 2010, August 2012, and September 2015 VA examination reports reflect various right ankle symptoms and VA and SSA treatment records reflect complaints of general ankle pain, the VA examination reports, VA treatment records, and SSA treatment records do not show a current right ankle disability.  As discussed above, with any claim for service connection, it is necessary for a current disability to be present.  See Moore, 21 Vet. App. at 215; Brammer, 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143-44; McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289.  Moreover, symptoms such as pain alone, without an underlying medical condition, do not constitute a disability for VA compensation purposes.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).

Based on the evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current right ankle disability.  For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for a right ankle disability, and the claim must be denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107; 38 C.F.R. 
§ 3.102.

Disability Rating Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 
38 C.F.R. § 4.25 (2017).  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14 (2017).  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  Here, the Board will evaluate the issue for a higher rating of the original award.  In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Id.  The Board has considered whether a staged rating is warranted with respect to the issues of entitlement to a higher initial rating for the left ankle disability, bilateral foot disability, and psychiatric disorder, and finds that the severity of the left ankle disability and psychiatric disorder has not changed during the course of the appeal so as to warrant staged ratings, as explained below; the RO has already assigned staged ratings for the bilateral foot disability.  

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.  

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  See Barr, 21 Vet. App. 303.


Initial Rating for the Left Ankle Disability

In this case, the Veteran is in receipt of a 10 percent initial rating for the left ankle disability from August 31, 2009 under Diagnostic Code (DC) 5010-5271.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27.  

Diagnostic Code 5010 instructs that traumatic arthritis is to be rated under DC 5003, which in turn, provides a minimum 10 percent disability rating on the basis of painful arthritis and noncompensable limitation of motion caused by pain.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups.  A 20 percent rating is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes.  38 C.F.R. § 4.71a.  If, however, the traumatic arthritis results in a compensable limitation of motion, then DC 5003 directs the disability to be rated under the appropriate Diagnostic Code for the specific joint or joints involved, which in this case would be for the limited motion of the ankle under DC 5271.

Diagnostic Code 5271 contemplates disability of the ankle manifested by limitation of motion.  Under this code, a 10 percent rating is assigned when limitation of motion is moderate, and a 20 percent rating is assigned when limitation of motion is marked.  Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II (2017). 

Throughout the course of this appeal, the Veteran has generally contended that the left ankle disability warrants an initial rating higher than the assigned 10 percent disability rating.  During the June 2017 Board hearing, the Veteran testified to experiencing left ankle pain and swelling on a daily basis.

After a review of all the evidence of record, both lay and medical, the Board finds that, for the initial rating period on appeal from August 31, 2009, the left ankle disability symptoms and limitations more nearly approximate marked limitation of motion, without malunion of the os calcis or astragalus, and/or ankylosis of the ankle, subastragalar joint, or tarsal joint, and the Veteran did not undergo an astragalectomy.  As such, the Board finds that a 20 percent rating under Diagnostic Code 5271 for marked limited motion of the left ankle is warranted.  38 C.F.R. §§ 4.3, 4.7.  

The November 2010 VA examination report reflects left ankle dorsiflexion to 10 degrees and plantar flexion to 45 degrees with objective evidence of painful motion.  Upon repetitive use testing, left ankle dorsiflexion was reduced to 5 degrees and plantar flexion to 30 degrees.  The November 2010 VA examiner assessed that there is additional functional limitation of the left ankle following repetitive use due to pain.

During the October 2015 VA examination, the Veteran reported increased left ankle pain during episodes of flare-ups that were precipitated by prolonged standing and walking.  Left ankle dorsiflexion was measured to 5 degrees and plantar flexion was to 15 degrees, with pain noted upon examination that causes functional loss.  The October 2015 VA examiner assessed that pain significantly limits functional ability of the left ankle with repeated use over time and during episodes of flare-ups.

Based on the above evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that symptoms of the left ankle disability more closely approximates the criteria under Diagnostic Code 5271 for marked limited motion of the left ankle; therefore, the maximum 20 percent disability rating is warranted under Diagnostic Code 5271 from August 31, 2009.  38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

The Board has considered whether a higher initial rating for the left ankle disability in excess of 20 percent may be warranted under Diagnostic Code 5270.  As the November 2010, August 2012, and September 2015 VA examination reports all reflect negative findings for left ankle ankylosis, a higher 30 percent rating is not warranted under Diagnostic Code 5270.  38 C.F.R. §§ 4.3, 4.7, 4.71a.

Initial Rating for the Bilateral Foot Disability

The Veteran is in receipt of an initial 30 percent rating for the bilateral foot disability from August 31, 2009 to September 30, 2015 under Diagnostic Code 5276 for bilateral flatfoot (pes planus); from September 30, 2015 forward, the Veteran is in receipt of the maximum 50 percent disability rating.  The Veteran contends that a higher initial rating in excess of 30 percent for the bilateral foot disability is warranted for the period from August 31, 2009 to September 30, 2015, due to symptoms such as constant pain, swelling, pain on manipulation, severe tenderness of the plantar surfaces, and lower extremity muscle weakness that is not improved by orthopedic shoes or arch supports, and the need to use a walking cane due to bilateral foot pain.  See May 2012 and August 2012 Statements.

Under Diagnostic Code 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling.  Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability.  Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability.  38 C.F.R. § 4.71a.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6 (2017).  Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6 (2017).

On review of all the evidence, both lay and medical, the Board finds that, for the initial rating period on appeal from August 31, 2009 to September 20, 2015, the service-connected bilateral foot disability has been manifested by severe bilateral pes planus, with objective evidence of moderate deformity, pain on manipulation and use, swelling, and callosities with symptoms relieved by use of custom orthotics, and has not more nearly approximated pronounced bilateral pes planus, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, without improvement by orthopedic shoes or appliances.

A May 2009 private treatment record shows the Veteran complained of right foot pain that occasionally became so severe that he could not stand to touch the foot.  Upon examination, the private examiner noted mild crepitation and tracking in both feet, most likely due to arthritic changes.  The private examiner also noted that there was no pain to palpation of the feet plantarly, medially, laterally, or dorsally.  The feet were observed to have mild, pronounced navicular enlargement and tight posterior tibial tendon; upon activating the windlass mechanism, an arch was created upon weight bearing.  The May 2009 private examiner recommended that the Veteran wear orthotic devices as they may decrease symptoms such as pronation.

An August 2009 VA treatment record shows the Veteran complained of left foot pain during a podiatry consultation.  Upon examination, the VA provider was able to elicit pain upon palpation to the sinus tarsi of the left foot, but no other pain was noted.

During a November 2009 VA examination of the feet, the Veteran reported using over the counter shoe inserts and pain medication to treat foot pain.  The November 2009 VA examination report reflects the Veteran endorsed symptoms of pain and swelling in both feet that is constant.  Examination of the feet was negative for painful motion, swelling, instability, weakness, or abnormal weight bearing; only tenderness just below the lateral malleolus of the left foot was found.  The November 2009 VA examination report also shows negative findings for forefoot or midfoot malalignment, pronation, pain on manipulation, and muscle atrophy for both feet.

A December 2009 VA treatment record shows the Veteran reported foot pain was under control with medication and use of orthotics but he was unable to fit the orthotics in most of his shoes.  The Veteran was instructed to continue use of the orthotics and shoes were ordered.  A February 2010 VA treatment record reflects the Veteran reported continuing pain in the left foot and that the shoes and orthotics had not helped; the VA provider ordered custom orthotics for the Veteran to try.  An April 2010 VA treatment record shows the Veteran conveyed the custom orthotics were too wide and the orthotics were adjusted.  An August 2010 VA treatment record reflects the Veteran requested a new pair of custom molded shoes as the last pair was too wide; the Veteran reported that the arch of the feet felt good with the custom orthotics and had no other pedal complaint.

In November 2010, the Veteran was provided with another VA examination of the feet.  The Veteran reported the bilateral foot disability had been getting progressively worse and that he had developed bunions on both feet.  The November 2010 VA examination report reflects the bilateral foot disability was being treated custom orthotic shoes, medication for pain and inflammation, and that response to the current treatment regimen was fair.  The Veteran endorsed symptoms of pain, stiffness, fatigability, and lack of endurance in both feet, with episodes of flare-ups occurring at least weekly and lasting less than a day.  The November 2010 VA examination report shows the Veteran required the use of crutches for the bilateral foot and ankle disabilities and custom shoes for the bilateral foot disability.  

Upon examination of the left foot, the November 2010 VA examiner noted negative findings for swelling, instability, and weakness, and positive findings for painful motion with dorsiflexion, tenderness along the lateral aspect and dorsum of the foot, and abnormal weight bearing evidenced by callosities.  Upon examination of the right foot, the VA examiner noted negative findings for painful motion, swelling, tenderness, instability, weakness, and abnormal weight bearing.  Achilles alignment in both feet were found to be inward bowing on weight bearing that the VA examiner assessed was partially correctable with manipulation that elicited pain.  The November 2010 VA examiner also found moderate pronation of both feet.  

In December 2010, the Veteran testified at a Decision Review Officer (DRO) hearing, the transcript for which is associated with the record.  During the December 2010 DRO hearing, the Veteran testified that he had never been prescribed a cane or crutches for the foot or ankle disability, but would use crutches from a prior knee injury when he occasionally had foot pain upon waking up in the morning.  The Veteran also testified that since he was prescribed diabetic shoes sometime around September 2010, the swelling in the left foot and left ankle had been reduced by 90 percent.

An April 2012 VA treatment record reflects the Veteran complained that the pain and swelling from flatfeet had gotten worse.  Mild pain with palpation to the ankle joint and with range of motion of the subtalar joint was noted upon examination.  The Veteran was instructed to continue use of the orthotics and was advised that the orthotics would not reverse the bilateral foot disability, but could help control the symptoms.

In August 2012, the Veteran underwent another VA examination of the feet.  The August 2012 VA examination report reflects positive findings for pain on use of both feet and accentuated pain on use of the right foot, with symptoms relieved by the use of arch supports, shoes, or other orthotic devices.  The VA examiner noted negative findings for pain on manipulation, swelling on use, calluses, and extreme tenderness of plantar surfaces for both feet.  Further, the August 2012 VA examiner indicated there was no objective evidence of marked deformity or marked pronation of either foot, but found that there was inward bowing of the Achilles' tendon bilaterally without marked inward displacement and severe spasm on manipulation.

An October 2013 VA treatment record shows the Veteran presented for a follow up appointment for pes planus.  During the October 2013 visit, the Veteran conveyed that he was doing well but requested a letter stating that he is unable to work.  Following a pedal examination, the Veteran was advised that the VA provider was unable to make the assertion that the Veteran is unable to work based upon the pedal examination findings.  The Veteran was instructed to return for another follow up appointment in one year.  An October 2014 VA treatment record shows that the Veteran presented for another follow up appointment for pes planus and again reported that he was doing well.  The Veteran was examined and again instructed to return in one year.

Based on the foregoing, the Board finds that the weight of the evidence shows that, for the initial rating period from August 31, 2009 to September 30, 2015, symptoms of the service-connected bilateral foot disability had not more nearly approximated pronounced flatfoot with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, that was not improved by orthopedic shoes or appliances.  Although the Veteran asserts that orthotic devices had not improved the symptoms of the bilateral foot disability, the evidence shows that the Veteran reported that custom orthotics and orthopedic shoes had at least some alleviating effect on his symptoms, and that the Veteran reported he was doing well during annual pedal examinations in October 2013 and October 2014.  For the foregoing reasons, the Board finds that the preponderance of the evidence is against a higher initial rating in excess of 30 percent for the bilateral foot disability for the rating period from August 31, 2009 to September 30, 2015.  38 C.F.R. §§ 4.3, 4.7, 4.71a.

Initial Rating for Psychiatric Disorder

For the entire initial rating period on appeal from September 12, 2011, the service-connected adjustment disorder with anxiety has been assigned an initial 70 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9440.  The Veteran generally contends that a total (100 percent) initial disability rating for the psychiatric disorder is warranted as he is unable to work due to the psychiatric symptoms.  See November 2016 Statement.

Under the General Rating Formula for Mental Disorders, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.  38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.

A 30 percent rating is assigned for 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, and mild memory loss (such as forgetting names, directions, recent events).  Id.

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

A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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 work like setting); and inability to establish and maintain effective relationships.  Id.

A 100 percent rating requires evidence of 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, own occupation, or own name.  Id. 

The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of  the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation.  Id. 

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms."  The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."

In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental 
health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms.  Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).

A GAF score of 21 - 30 indicates "Behavior 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 in almost all areas (e.g., stays in bed all day; no job, home, or friends)."  

A GAF score of 31 - 40 indicates "Some impairment in reality testing or communication (e.g. speech is at times illogical, obscure or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)."   

A GAF score of 41-50 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 51-60 indicates "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or
 co-workers)." 

A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships."  

The GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See Richard, 9 Vet. App at 267; Carpenter v. Brown 8 Vet. App. 240, 243 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue.  The GAF score must be considered in light of the actual symptoms of a veteran's disorder as they reflect on the degree of occupational and social impairment, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126 (a) (2017). 

After a review of all the evidence, both lay and medical, the Board finds that for the entire initial rating period on appeal from September 12, 2011, the service- connected psychiatric disorder has been manifested by 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, occasional suicidal thoughts, with symptoms controlled by continuous medication.

An August 2011 VA mental health treatment record shows the Veteran reported taking sleep medication that helped him sleep soundly for five to six hours a night.  The August 2011 VA provider noted that the Veteran seemed to be doing fairly well and did not have any complaints.  The Veteran was observed to be pleasant, friendly, well groomed, not manic, hypomanic, or psychotic, although his affect and mood seemed to be somewhat dysphoric.  The VA provider's assessment was that the Veteran was mildly dysphoric and assigned a GAF score of 45.

In August 2012, the Veteran underwent a VA examination for psychiatric disorders.  The August 2012 VA examination report reflects a diagnosis of adjustment disorder with anxiety that the VA examiner opined was at least as likely as not due to the stress the Veteran experiences from being unable to engage in the physical activities that he enjoys and difficulty adjusting to chronic foot pain and swelling caused by the service-connected bilateral foot disability.  The August 2012 VA examination report reflects positive findings for symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, speech intermittently illogical, obscure, or irrelevant, and suicidal ideation.  The August 2012 VA examiner assessed that the Veteran is capable of managing his own financial affairs and that the psychiatric disorder likely results in 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; a GAF score of 60 was assigned.

A May 2013 VA mental health treatment record shows the Veteran conveyed a desire to adjust his pain medication but was otherwise doing well and denied any other problems; the Veteran reported his daughter had moved out and he had been taking care of the house.  The Veteran was observed to be well groomed, in good mood and spirit, insightful, motivated, and intelligent, and not manic, hypomanic, psychotic, suicidal, or homicidal.  The May 2013 VA provider assessed the Veteran was fairly stable and again assigned a GAF score of 45.

Similarly, VA mental health treatment records from September 2013, March 2014, September 2014, December 2014, March 2015, and July 2015, all generally reflect that the Veteran was observed to be well groomed, oriented to time, place, person and situation, intelligent, and not manic, hypomanic, psychotic, suicidal, or homicidal; a GAF score of 45 remained unchanged throughout the above VA mental health treatments.  Other VA treatment records throughout this period reflect normal psychiatric examinations with the Veteran endorsing suicidal ideation without intent or plan on one occasion as reflected in a January 2014 VA treatment record.

The Veteran underwent another VA examination for psychiatric disorders in September 2015, during which the Veteran reported having some friends, going to the senior center twice a week to watch others shoot pool, attending church regularly, playing a limited amount of golf, and running his own errands as needed.  The September 2015 VA examination report reflects the psychiatric disorder manifests in symptoms of depressed mood only.  The VA examiner noted that since the August 2012 VA examination, VA mental health treatment records indicate the Veteran has been doing well, responding to medication, is stable, and his psychiatric condition has been described as mild.  

During the September 2015 VA examination, the Veteran's overall affect was broad and his mood appeared euthymic, although the VA examiner noted he appeared briefly dysphoric when discussing how he is no longer able to do all the things he once enjoyed.  The Veteran demonstrated normal eye contact, speech, and behavior, and his memory was intact.  During the September 2015 VA examination, the Veteran denied delusions or hallucinations, panic attacks, obsessive rituals, and suicidal or homicidal ideation.  The Veteran conveyed that at times the thought of suicide had crossed his mind, but was also very clear that he is not presently thinking this way.  The September 2015 VA examiner stated it was clear that the Veteran had never seriously considered suicide and that was not having any true suicidal ideation.  The Veteran denied symptoms of anxiety and conveyed that he does not worry much, but endorsed mood fluctuations and occasionally feeling frustrated by the physical limitations imposed by health issues.  The Veteran also reported taking medication that helps him sleep through the night, although he occasionally wakes up during the night to use the bathroom.  The September 2015 VA examiner assessed that the Veteran is capable of managing his own financial affairs and that the psychiatric disorder likely results in 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; the VA examiner noted that the Veteran seemed to be functioning fairly well overall, getting along with family, maintaining some friendships and social interactions, and being involved in church and staying active with some activities.

VA mental health treatment records from May 2016 and October 2016 show the Veteran was observed to be alert, oriented to time, place, person, and situation, friendly, not manic, hypomanic, psychotic, suicidal or homicidal, and that he reported doing fairly well without any problems.  The October 2016 VA treatment record also notes the Veteran exhibited good short-term, recent, and remote memory and coherent speech that was relevant and appropriate, without loosening of association.

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an initial disability rating in excess of 70 percent (a total 100 percent rating) for the service-connected psychiatric disorder for any period.  For the entire initial rating period on appeal, the Veteran's psychiatric disorder has not been productive of total occupational and social impairment.  The Board notes that the Veteran does not have the significant, to the point of debilitating, symptoms contemplated by a total 100 percent rating, and the symptoms that are present are not of similar severity, frequency, and/or duration as to those symptoms contemplated by a total 100 percent disability rating.  The aforementioned VA treatment records and VA examinations have not reflected that the Veteran's psychiatric disorder has resulted in total social and occupational impairment, including due to such symptoms as persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.  While the Veteran has endorsed occasional thoughts of suicide, the evidence reflects that such suicidal ideation has not been of the severity, frequency, and duration to be persistent as contemplated by a 100 percent rating.  Although many of the VA mental health treatment records throughout the initial rating period reflect a GAF score of 45, those same treatment records show the Veteran has been responding well to medication, generally doing well, and his psychiatric condition has been described as mild as noted by the September 2015 VA examiner.

The Board has considered all of the other symptoms discussed above, including their severity, frequency, and duration, and as they are occupationally and socially impairing.  In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the psychiatric disorder more nearly approximate the degree of social and occupational impairment and symptoms contemplated by a 70 percent disability rating.  Additional evidence also supports the Board's finding that social impairment was not total.  The Veteran has been managing his own financial affairs, running errands as needed, getting along with family, maintaining some friendships and social interactions, and is involved in church and staying active with some activities.  Such evidence reflects that the Veteran's social impairment is not total.  Here, because the Veteran does not have total social impairment, the criteria for a higher rating are not met or more nearly approximated.  A 100 percent rating for the psychiatric disorder requires both total occupational and total social impairment.  38 C.F.R. § 4.130.  For the foregoing reasons, the Board finds that the preponderance of the evidence is against the assignment of a higher initial rating in excess of 70 percent for the service-connected psychiatric disorder for any period from September 12, 2011.  38 C.F.R. §§ 4.3, 4.7, 4.130.


Extraschedular Referral Consideration

The Board has considered whether referral for extraschedular consideration is warranted for the service-connected disabilities.  Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2017).

The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted").  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. at 116.  In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate.  Yancy, 27 Vet. App. at 494-95.

With respect to the first prong of Thun, the Veteran's left ankle disability has been manifested by pain, painful limitation of motion, and swelling.  The schedular rating criteria specifically contemplate such symptomatology.  38 C.F.R. § 4.71a, Diagnostic Codes 5271; DeLuca, 8 Vet. App. 202.  

Further, any functional limitations imposed by the Veteran's left ankle disability, which here includes difficulty with prolonged walking and standing, are primarily the result of the left ankle pain, and such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria).

Therefore, the effects of the Veteran's left ankle pain and associated limitations on occupational and daily life are specifically contemplated by the schedular criteria.  The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C. § 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 specifically contemplated by the criteria discussed above, including the functional limitations and the effects on daily life.

Further, the Board finds that all the symptomatology and impairment caused by the service-connected bilateral foot disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The bilateral foot disability has been manifested by pain, objective evidence of moderate deformity, pain on manipulation and use, swelling, and callosities, which symptoms are specifically contemplated under Diagnostic Code 5276.  38 C.F.R. § 4.71a; DeLuca, 8 Vet. App. 202. 8 Vet. App. 202.  

The Board also finds that the symptomatology and impairment caused by the Veteran's service-connected psychiatric disorder are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The schedular rating criteria, Diagnostic Code 9440, specifically provide for disability ratings based on a combination of history and clinical findings.  In this case, considering the lay and medical evidence, the Veteran's psychiatric disorder has manifested symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, speech intermittently illogical or irrelevant, and suicidal ideation.  These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria.  Mauerhan, 16 Vet. App. at 443.  The levels of occupational and social impairment are also explicitly part of the schedular rating criteria.  In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning.

Comparing the Veteran's disability level and symptomatology of the left ankle disability, bilateral foot disability, and psychiatric disorder to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  There are no additional expressly or reasonably raised issues presented on the record.  Absent any exceptional factors associated with the left ankle disability, bilateral foot disability, and psychiatric disorder, 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).

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 extraschedular 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. 

TDIU from August 31, 2009

The Veteran generally asserts being unable to obtain or maintain substantially gainful employment due to service-connected disabilities.  See November 2013 and September 2015 TDIU claims.  Additionally, entitlement to a TDIU is potentially an element of all rating issues.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Given that the issue of a TDIU has been raised in relation to the rating issues on appeal, the Board will consider whether a TDIU is warranted at any time during the initial rating period on appeal from August 31, 2009.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  38 U.S.C. § 1155.  Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  Total disability may or may not be permanent.  38 C.F.R. § 3.340(a)(1).  Total ratings are authorized for any disability or combination of disabilities for which the rating schedule prescribes a 100 percent rating.  38 C.F.R. § 3.340(a)(2).

A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances.  38 C.F.R. § 4.16(a), (b).

If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16(a).

If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria.  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a).  38 C.F.R. § 4.16(b).  See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board).  Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board).

Individual unemployability must be determined without regard to any non-service- connected disabilities or a veteran's advancing age.  38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment.  Id. at 361.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor.  38 C.F.R. 
§ 4.3.

In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). 

In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).  Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability.  38 C.F.R. § 4.17(a) (2017).

The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case).

Prior to September 12, 2011, the Veteran's service-connected disabilities did not meet the regular schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU.  For the period from August 31, 2009 to September 12, 2011, the Veteran was service connected for a left ankle disability (now rated as 20 percent disabling based on the Board's instant decision) and a bilateral foot disability (30 percent disabling), for a combined disability rating of 50 percent.  Additionally, taken together as occurring under a common etiology, the Veteran still does not meet the criteria for a single disability rated as 60 percent disabling.  See 38 C.F.R. § 4.25.  Beginning on September 12, 2011, the Veteran's service-connected disabilities did meet the regular schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU.  At that time, the Veteran was service connected for a left ankle disability (now rated as 20 percent disabling based on the Board's instant decision), a bilateral foot disability (30 percent disabling), and a psychiatric disorder (70 percent disabling), for a combined disability rating of 90 percent.

After a review of all the evidence, lay and medical, the Board finds that a TDIU is not warranted for any period from August 31, 2009.  Further, having considered all the evidence of record, lay and medical, the Board finds that referral under 38 C.F.R. § 4.16(b) to the Compensation and Pension Director for extraschedular consideration is not warranted for the period from August 31, 2009 to September 12, 2011.

The evidence of record shows that the Veteran received a general equivalency diploma while in the military and worked at various factory jobs after separating from service.  See August 2012 VA examination report for psychiatric disorders.  The Veteran last worked as a truck driver in January 2008.  See January 2010 SSA Disability Decision. 

A January 2010 SSA Disability Decision reflects the Veteran testified during a SSA hearing that he stopped working in January 2008 when he developed shingles and lost strength in both hands; the Veteran claimed that the shingles caused nerve damage both hands that eventually required surgery in the right hand in April 2009.  Since the surgery, the Veteran experienced symptoms of soreness and flashing pain in the palm and fingers, but that the right hand would shake so badly sometimes that he was unable to write his own name.  The Veteran asserted being unable to work due to a problem with both hands and dizziness, which he was told was a result of the shingles.  The Veteran also testified that he had a driver's license with no restrictions and that he drives everyday if he has to.

Additionally, during the August 2012 VA examinations of the ankles and feet, the VA examiner assessed that the Veteran's service-connected left ankle disability and bilateral foot disability did not impact his ability to work and opined that the disabilities did not prevent gainful employment as the Veteran was able to complete a full career and retired in spite of the service-connected disabilities.  Further, the August 2012 VA examiner assessed that the Veteran may benefit from vocational retraining if employment was desired. 

As discussed above, the October 2013 VA treatment record reflects that the Veteran requested a letter stating he is unable to work based on the service-connected bilateral foot disability, but that the VA provider did not provide the requested letter as the findings from a pedal examination did not support the notion that the Veteran is unable to work due to the service connected bilateral foot disability.  Moreover, a September 2015 VA examination report for foot conditions, upon which the maximum 50 percent initial disability rating was awarded under DC 5276, reflects functional impact of the bilateral foot disability was described as difficulty with prolonged standing or walking.  Similarly, the lay and medical evidence discussed above shows the service-connected psychiatric disorder has primarily manifested in mild symptoms and that the Veteran's psychiatric condition has been fairly stable, and did not impair the Veteran's ability to maintain relationships with family members and friends.  

The Veteran points to a September 2013 VA mental health treatment record in support of his claim for a TDIU.  The September 2013 VA treatment record shows the Veteran was being treated for depression and anxiety.  Separate from the Veteran's service-connected disabilities, the September 2013 VA provider noted the Veteran also suffers from pituitary adenoma, headache, carpal tunnel syndrome, pain in the joints in the hands, dermatitis, hypertension, benign hyperplasia of the prostate, and restless leg syndrome.  Then, the September 2013 VA provider conveyed that due to the nature of all of the Veteran's medical problems, including psychiatric issues, he is not capable of obtaining or maintaining any part-time or full-time gainful employment. 

Having reviewed all of the evidence of record, both lay and medical, the Board finds that the weight of the lay and medical evidence demonstrates that the criteria for TDIU have not been met for any period from August 31, 2009.  The evidence reflects that the Veteran last worked as a truck driver in January 2008, but has reported various reasons for why he stopped working.  The January 2010 SSA Disability Decision reflects the Veteran testified that he stopped working in January 2008 when he developed shingles, and not due to service-connected disabilities.

Further, while the evidence establishes that the service-connected disabilities resulted in some level of occupational impact, the evidence does not establish that the Veteran is unable to obtain or maintain substantially gainful employment solely due to the service-connected left ankle disability, bilateral foot disability, and/or the psychiatric disability.  On the contrary, the September 2013 VA mental health treatment record shows the VA provider's assessment that the Veteran is unable to obtain or maintain employment due to all of his medical and psychiatric problems.  The evidence shows that the Veteran still holds an unrestricted driver's license, drives every day if needed, and runs his own errands, which indicates that the service-connected disabilities have not prevented him from performing the same occupational functions as were required when he was working as a truck driver.  

Accordingly, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran's service-connected disabilities did not prevent the Veteran from obtaining or maintaining substantially gainful employment for any period from August 31, 2009.  As the preponderance of the lay and medical evidence is against a finding for a TDIU, the benefit-of-the-doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for a right ankle disorder is denied.

For the entire initial rating period from August 31, 2009, a higher initial rating of 20 percent, but no higher, for the left ankle disability is granted.

For the initial rating period from August 31, 2009 to September 30, 2015, a higher initial rating in excess of 30 percent for the bilateral foot disability is denied.

For the entire initial rating period from September 12, 2011, a higher initial disability rating in excess of 70 percent for the psychiatric disorder is denied.

A TDIU for the entire period from August 31, 2009 is denied.





____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs