Citation Nr: 1804294 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 09-27 717 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, and a depressive / anxiety disorder. 4. Entitlement to a rating in excess of 10 percent for bilateral pes planus. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 21, 1972 to August 25, 1972, and from June 24, 1975, to May 17, 1978. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions by the Cleveland, Ohio, Regional Office (RO). By a rating action in April 2007, the RO denied the Veteran's claim of entitlement to a rating in excess of 10 percent for pes planus. He perfected a timely appeal to that decision. On December 2, 2009, the Veteran appeared at the RO and testified at a videoconference hearing before a Veterans Law Judge. A transcript of that hearing is of record. During the hearing, the Veteran withdrew appeals for service connection for a nervous condition. In May 2011, the Board remanded the case to the RO for evidentiary development of the issue of increased rating for pes planus. Following the requested development, a supplemental statement of the case (SSOC) was issued in September 2011. In December 2012, the Board again remanded the case to the RO for further evidentiary development of the case. By a rating action in August 2013, the RO denied the Veteran's claim of entitlement to service connection for PTSD. He perfected a timely appeal to that decision. The Veterans Law Judge who conducted the December 2009 hearing is no longer employed at the Board. In October 2017, the Board advised the Veteran that it would afford him the opportunity to provide testimony before another Veterans Law Judge. He was also advised that he was to respond within 30 days if he wanted another hearing and that if no response was received within the prescribed time period, the Board would assume that he did not want another hearing. In November 2017, the Veteran notified the Board that he did not want another hearing. The issues of entitlement to service connection for an acquired psychiatric disorder, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2007 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a nervous condition. The Veteran appealed this denial, but later withdrew his appeal. 2. Evidence received since the April 2007 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a nervous condition and raises a reasonable possibility of substantiating the claim. 3. The Veteran's bilateral pes planus has been manifested by moderate foot pain on manipulation and use of the feet, which is not relieved by arch support, but it has not resulted in severe pes planus, as manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. CONCLUSIONS OF LAW 1. The April 2007 rating decision, that denied service connection for a nervous condition, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the final April 2007 rating decision is new and material; therefore, the criteria for reopening the claim of entitlement to service connection for a nervous condition have been met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156 (a), 20.1103 (2017). 3. The criteria for a rating in excess of 10 percent for pes planus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background & Analysis-Claim to reopen S/C-Acquired psychiatric disorder. Unappealed RO decisions are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). Historically, the Veteran initially filed a claim for service connection for a nervous condition (VA Form 119) in April 2006. At that time, the record consisted of the Veteran's service treatment records (STRs). These records are completely silent with respect to any complaints or findings of a nervous condition. Also considered were VA progress notes dated from May 2004 to December 2006. These records reflect treatment for substantive dependence and antisocial personality disorder. They do not reflect any complaints, findings or diagnoses of a nervous disorder. By a rating action in April 2007, the RO denied service connection for a nervous disorder. The decision was denied based on a finding that the evidence failed to show that the disability has been clinically diagnosed. Although the Veteran initially appealed this decision, he withdrew his appeal at the December 2009 videoconference hearing. As such, the April 2007 rating decision is final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim of service connection for a nervous disorder. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran's request to reopen his claim for service connection for a psychiatric disorder, namely PTSD (VA Form 21-0820) was received in October 2011. Submitted in support of the claim was a statement of stressors, dated in November 2011, wherein the Veteran reported being sexually assaulted during basic training by other trainees. The Veteran indicated that he reported that incident to his drill instructors who assured him that they would address the situation. The Veteran related that the violent personal assault caused him to have recurrent thoughts of anger; he stated that the finally decided to seek help in 2011. Also submitted in support of the Veteran's claim were VA progress notes dated from May 1999 to July 2013, which show that the Veteran received ongoing clinical evaluation and treatment for a psychiatric disorder, variously diagnosed. He received psychotherapy related to anxiety and depression. In February 2011, the Veteran was diagnosed with substance induced mood disorder with depressed vs. depressive disorder NOS. A psychology note, dated in March 2011, indicates that the Veteran was seen for a group therapy session. This psychology note reflects a diagnosis of anxiety. A March 2011 treatment note reflects an assessment of depression NOS and anxiety NOS, R/O PTSD. Of record is the report of a DBQ examination, conducted in August 2013. Following the examination, the examiner reported the following diagnoses: PTSD by history; depressive disorder, NOS., and alcohol dependence. The examiner opined that the overall pattern of test results is indicative of malingering affective/emotional symptom disturbance. The examiner observed that the Veteran's self-report of DSM-IV symptoms of PTSD and Depression as well as his report of difficulty coping with these stressors cannot be taken at face value; thus, a diagnosis of PTSD cannot be determined without resorting to speculation. The Board finds that the evidence received since the April 2007 rating decision is both new and material. In the April 2007 rating decision, it was essentially found that there was no evidence of a current nervous disorder. In the instant case, the additional evidence includes a current diagnosis of a psychiatric disorder, variously diagnosed as depression and anxiety disorder, something that was not established in the prior denial in April 2007. Specifically, the evidence is relevant and probative of the issue regarding the presence of a psychiatric disorder and bears directly and substantially upon the facts regarding whether current disability is traceable to his military service. Because the credibility of the evidence is presumed in determining whether new and material evidence has been submitted, this evidence is relevant and probative of the issue of whether the Veteran's current psychiatric disorder is a result of active military service. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Based upon the reasons for the prior denial, the evidence is new and material, and the claim is reopened. Kent v. Nicholson; 38 C.F.R. § 3.156 (a). III. Factual background & Analsysis-I/R pes planus. The Veteran contends that his service-connected bilateral pes planus is more disabling than reflected by the current disability rating assigned by the RO. At his personal hearing in December 2009, the Veteran indicated that he had pain in the arches of the feet; he also reported problems with callus formation on his feet. The Veteran testified that he had the tendency to shift his weight inward which is reflected by the uneven wear on his shoes. The Veteran related that the problems with his feet have caused him to experience cramps in his calf muscles. The Veteran indicated that when he wakes up in the morning, he can barely walk. The Veteran maintained that the condition of his feet is such that they markedly interfere with his daily activities. The Veteran indicated that doctors have not mentioned or proposed any surgical intervention for his feet. He stated that nothing works to relieve the pain, not even steroids. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4. 10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. By a rating action in June 1981, the RO granted service connection for pes planus, bilateral, mild and assigned a 0 percent rating effective July 11, 1980. Subsequently, in April 1986, the RO increased the rating for pes planus from 0 percent to 10 percent from August 15, 1985. The Veteran's claim for an increased rating for his bilateral pes planus (VA Form 21-4138) was received in May 2006. Submitted in support of the claim were VA progress notes dated from May 2004 to June 2006. A VA progress note, dated December 30, 2005, indicates that the Veteran was diagnosed with pes planus and peripheral neuropathy/arch pain, possibly alcohol induced. These records show that the Veteran received follow up evaluation and treatment for complaints of bilateral tingling and foot pain. These records note that the Veteran wore insoles and was taking oral medication prescribed by VA without much relief. As noted above, the Veteran currently receives a 10 percent rating under Diagnostic Code 5276 for his moderate symptoms of his bilateral pes planus. In order to warrant an increased rating, the evidence must show "severe" disability with marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. While this diagnostic code does not define nonspecific words such as "moderate" or "severe," the Board must evaluate all of the evidence to the end that its decision is "equitable and just." See 38 C.F.R. § 4.6. The majority of the evidence concerning the Veteran's bilateral pes planus comes from VA and DBQ examinations conducted in June 2006, March 2009, June 2011, and March 2016. At each examination, the Veteran reported bilateral foot pain and tenderness, which made it difficult to stand for prolonged periods of time and walk long distances. All of the examinations revealed complaints of pain and tenderness. In March 2009, the Veteran reported painful manipulation of the feet. In June 2011, he had mild painful manipulation of the feet. In March 2016, the Veteran reported pain and tenderness in both feet. It was noted that the Veteran also had pain on manipulation of both feet. He also had swelling on use of both feet and he reported extreme tenderness of plantar surfaces of both feet. He reported relief of symptoms with arch supports. Significantly, none of the examinations noted a finding of callouses, pronation or other deformity, or impairment with the Achilles tendon. Based on the above, a rating in excess of 10 percent is not warranted for the Veteran's bilateral pes planus at any time during the period on appeal. Although the Veteran complains of severe pain and functional limitation resulting from his pes planus, his complaints are not consistent with what was observed at the above cited examinations. While not all of the criteria must be present to warrant a 30 percent rating, the symptomatology must rise to a level consistent with "severe" pes planus. Here, even though the Veteran does have pain on use, which would necessarily include weightbearing and active motion, tenderness, and swelling, the evidence does not show marked deformity (pronation, abduction, etc.), characteristic callosities, or any impairment of the Achilles tendon. In this case, the Veteran's pain, tenderness, and swelling are insufficient to warrant a rating in excess of 10 percent. The Board has considered other possible diagnostic codes for evaluating the Veteran's pes planus. However, the examination reports from the period on appeal show that the Veteran's feet are absent for foot conditions contemplated by Diagnostic Codes 5277-5283, namely pes cavus, hallux valgus, hallux rigidus, hammer toe, and malunion/nonunion of the tarsal or metatarsal bones. As to Diagnostic Code 5284, that code also does not apply. Pes planus is specifically rated under Diagnostic Code 5276. When a diagnostic condition is listed in the VA's schedule for rating disabilities, it should be rated under the diagnostic code that specifically pertains to it. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015); 38 C.F.R. § 4.27. Accordingly, the only diagnostic code that applies in this case is Diagnostic Code 5276. In summary, the Veteran's bilateral pes planus does not warrant a rating in excess of 10 percent at any time during the appeal, and his claim must be denied. The Board has considered the VA examination's compliance with 38 C.F.R. § 4.59. The Board finds that the VA examination satisfies Correia as the examiner tested for pain in weight-bearing and nonweight-bearing, but as both feet are affected, it was not possible to test with the range of the opposite joint. The examiner indicated examination on passive and active motion as the report refers to testing on manipulation and refers to weightbearing. Additionally, it is acknowledged that he has reported pain on standing and walking. Accordingly, the Board finds that the preponderance of the evidence establishes that a 30 percent rating is not warranted for the Veteran's service-connected bilateral pes planus. 38 U.S.C. §§ 5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). Hence, the appeal must be denied. Extraschedular consideration is not warranted under 38 C.F.R. § 3.321 (b) (1). The Board finds that the Veteran's symptomatology is fully contemplated by the schedular rating criteria. The Veteran has not been shown to have any symptomatology due to his pes planus that is inadequately recognized by the ratings in effect for that condition. Therefore, the rating schedule is adequate, it is not an exceptional or unusual disability picture, and referral for consideration of an extraschedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is reopened. A rating in excess of 10 percent for bilateral pes planus is denied. REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103. The specific bases for remand are set forth below. A. S/C-Acquired psychiatric disorder. Having determined that the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, VA has a duty to assist the Veteran in the development of evidence pertinent to his claim under 38 U.S.C. § 5107 (b). The military personnel records do reflect that the Veteran had behavioral problems that initially led to an Under Other than Honorable Conditions discharge, but it was subsequently upgraded in February 1980 to Under Honorable Conditions. VA progress notes dated from May 1999 to July 2013 show that the Veteran received ongoing clinical evaluation and treatment for a psychiatric disorder, variously diagnosed as anxiety and depression. In February 2011, the Veteran was diagnosed with substance induced mood disorder with depressed vs. depressive disorder NOS. A psychology note, dated in March 2011, indicates that the Veteran was seen for a group therapy session. This psychology note reflects a diagnosis of anxiety. A March 2011 treatment note reflects an assessment of depression NOS and anxiety NOS, R/O PTSD. The Veteran underwent a DBQ examination for evaluation of his claimed psychiatric disorder in August 2013. The Veteran stated that he was raped in the military by some of his fellow servicemen. The Veteran indicated that he reported the assault to his drill sergeants and he was told that they would handle the situation; however, he stated that nothing became of this report. The Veteran related that, following that incident, he was fearful of being around others taking showers and sleeping. He stated he began sleeping with is weapon and was intent on killing anyone who tried to do this to him again. Following a mental status examination, the examiner reported diagnoses of PTSD by history; depressive disorder, NOS., and alcohol dependence. The examiner opined that the overall pattern of test results is indicative of malingering affective/emotional symptom disturbance. The examiner further noted that the Veteran's self-report of DSM-IV symptoms of PTSD and Depression as well as his report of difficulty coping with these stressors cannot be taken at face value. The examiner then stated that a diagnosis of PTSD cannot be determined without resorting to speculation. This examination is inadequate. The examiner listed a diagnosis of PTSD by history as well as depressive disorder and placed checkmarks for numerous findings in categories for different criterion for PTSD. Then, the examiner appears to communicate that this was based on what the Veteran reported but that the examiner did not have confidence in his reporting but rather believed him to be malingering. What is needed is an examination that provides medical evidence as to whether the various criteria are met and whether the Veteran has PTSD or not and whether any diagnosed psychiatric disorder that he does have is related to service. What is also needed is an explanation by a medical professional as to whether there are markers indicating that the alleged in-service sexual assault occurred. A remand is necessary to provide the Veteran an adequate examination. B. TDIU. The claim for TDIU is inextricably intertwined with the claim of entitlement to service connection for a psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. Send a letter to the Veteran asking him to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his psychiatric disorder. The AOJ should undertake appropriate development to obtain any outstanding, pertinent VA treatment records and associate them with the claims file. 2. Then ensure that the Veteran is schedule for a VA psychiatric examination to determine the nature and etiology of any psychiatric disorder. The examination must be conducted by an examiner who has not previously examined him. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. Based on the review of the claims files and examination of the Veteran, the examiner must accomplish the following: (a) Identify any and all diagnoses of psychiatric disorders. As to PTSD, the examiner must indicate whether each criterion for PTSD, under either the DSM IV or V, is met or not. Any diagnosis must be a medical determination. (b) The examiner must review the claims file, in particular the Veterans service personnel file, and determine whether there are markers sufficient to find that it is at least as likely as not (a 50 percent or greater probability) that the alleged in-service military sexual assault occurred. The examiner must explain any determination in this regard. (c) The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified psychiatric disorder that the Veteran has had its was present during his active service or was caused by his active service. The examiner must explain any determination in this regard. 3. Then, readjudicate the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and entitlement to TDIU which are the subject of this remand. If any benefit sought on appeal remains denied, provide an SSOC to the Veteran and his representative, and allow an appropriate period of time in which to respond thereto before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs