Citation Nr: 1805687 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 13-00 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with depression, rated as 10 percent disabling prior to November 25, 2014, and as 70 percent disabling beginning on November 25, 2014. 2. Entitlement to a rating in excess of 10 percent for osteomalacia patella of the right knee. 3. Entitlement to a rating in excess of 10 percent for osteomalacia patella of the right knee. 4. Entitlement to an increased rating for lumbar degenerative disc disease with mechanical low back pain, rated as 10 percent disabling prior to May 2, 2017, and as 20 percent disabling beginning on May 2, 2017. 5. Entitlement to a rating in excess of 10 percent for bilateral plantar fasciitis. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear perforated tympanic membrane. 7. Entitlement to service connection for right ear perforated tympanic membrane. 8. Entitlement to service connection for tinnitus. 9. Entitlement to service connection for right ear hearing loss. 10. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) prior to November 25, 2014. REPRESENTATION Appellant represented by: Robin E. Hood, Attorney ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to December 2000 and from January 2003 to March 2004. He received the Combat Infantryman Badge, along with other awards and decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in August 2009 and July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The August 2009 rating decision, in pertinent part, denied reopening the claim of service connection for right ear perforated tympanic membrane and denied service connection for tinnitus and right ear hearing loss. A July 2011 rating decision, in pertinent part, denied ratings in excess of 10 percent for PTSD, osteomalacia of the right knee, osteomalacia of the left knee, lumbar degenerative disc disease and bilateral plantar fasciitis. When the case was previously before the Board in March 2015 it was remanded for additional development. (The Board notes that the March 2015 remand the Board listed the issue of entitlement to an increased rating for bilateral plantar fasciitis as entitlement to an increased rating for bilateral pes planus; however, as addressed further below, service connection for bilateral plantar fasciitis was granted in the August 2009 rating decision and it was rated under Diagnostic Code 5299-5276 pursuant to pes planus, as plantar fasciitis is not a disability for which there is an exact diagnostic code). In an October 2015 rating decision a temporary 100 percent rating was granted based on hospitalization over 21 days (for PTSD), effective from July 27, 2015 through October 31, 2015. In a September 2017 rating decision, the RO, in pertinent part, granted an increased rating of 70 percent for PTSD with depression, effective November 25, 2014, granted an increased rating of 20 percent for lumbar degenerative disc disease effective May 2, 2017, and granted TDIU effective November 25, 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to increased ratings for right and left knee osteomalacia patella and entitlement to an increased rating for lumbar degenerative disc disease with mechanical low back pain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal period the Veteran's PTSD with depression has been manifested by deficiencies in most areas; the evidence is against a finding of total social and occupational impairment. 2. For the time period prior to May 2, 2017 the Veteran's bilateral plantar fasciitis was manifested by pain on manipulation and use accentuated; for the time period beginning May 2, 2017, the Veteran's right foot plantar fasciitis is manifested by extreme tenderness of the plantar surfaces of the feet not improved by orthopedic shoes or appliances; no left foot plantar fasciitis or other disability is shown as of May 2, 2017. 4. An unappealed April 2007 rating decision denied service connection for right ear perforated tympanic membrane. 5. Evidence received since the April 2007 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right ear perforated tympanic membrane. 6. In giving the Veteran the benefit of the doubt, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation prior to November 25, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for PTSD with depression for the time period prior to November 25, 2014 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1 to 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a rating in excess of 70 percent for PTSD with depression have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1 to 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a 30 percent rating, but no higher, for plantar fasciitis are met for the entire time period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5276 and 5284 (2017). 4. The April 2007 rating decision denying service connection for right ear perforated tympanic membrane is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2007). 5. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for right ear perforated tympanic membrane. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for a TDIU for the time period prior to November 25, 2014 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its March 2015 remand. Specifically, the March 2015 Board remand instructed the AOJ to obtain the Veteran's Vocational Rehabilitation file, schedule the Veteran for a PTSD examination and a feet examination, and obtain any outstanding pertinent records, including VA treatment records dating since November 2012. The Vocational Rehabilitation file was obtained and the requested examinations were completed. Up to date VA treatment records were also obtained. Finally, the May 2017 examination reports substantially comply with the Board's March 2015 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis Increased Ratings PTSD The Veteran's PTSD with depression is rated as 10 percent disabling prior to November 25, 2014 and as 70 percent disabling beginning on November 25, 2014, under 38 C.F.R. §4.130, Diagnostic Code 9411. Pursuant to Diagnostic Code 9411, a 10 percent rating is warranted where there is 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. A 30 percent rating is warranted where there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when there is 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, or mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted 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. 38 C.F.R. §4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, 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 (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-V); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. A GAF score of 41-50 is assigned where there are, "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)." See Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-V) The medical evidence of record includes an August 2010 private psychological evaluation which reflects that the Veteran described symptoms of PTSD, depression and history of significant substance abuse. He displayed marked problems with insomnia, and some troubles with irritability, concentration and hypervigilance. The Veteran reported a "medium" mood most days. He has significant fatigue and loss of energy. He also reported feelings of worthlessness and guilt from time to time. Cognitive difficulties, including indecisiveness diminished ability to think, were reported. He denied suicidal ideation but reported that he had been homicidal in general. He reportedly displayed a pattern of randomly directed, intermittent and impulsive ideation in response to certain incidents. He indicated that the only thing that has saved him from going over the edge is his children. On examination he was engaged and very cooperative. He was fully oriented. His attention capability, as evidenced by his circumstantial speech, fell below normal limits. His concentration also fell below normal limits (he was only able to recall one out of three items after an interference task). Immediate memory, recent memory and remote memory were normal. Intelligence was average but insight and judgment were below normal limits. Impulse control, as evidenced by history of angry outbursts and substance abuse, was below normal limits. Speech was normal but form of thought was significant for circumstantiality. Thought content was significant for homicidal ideation. The Veteran reported that his mood was "pretty good" during the examination. Affect was normal, stable, and appropriate during the interview. The Veteran's GAF score was noted to be 48. The November 2010 VA examination report reflects that A March 2014 VA treatment record notes that the Veteran has friends with whom he socializes. It was specifically noted that he visits friends once a week and attends movies with his wife once a week. His mother lives nearby. An August 2015 VA treatment record reflects that the Veteran is close with his mother and he has intermittent contact with his father, a Vietnam Veteran who lives out of state. A November 2014 private treatment record reflects that the Veteran's children, who were residing at his home at his last appointment, have moved out. The Veteran reported that they were likely scared of him due to his unpredictable behavior. He reported that he maintains contact with his son but not his two daughters. He reported that he was terminated from his job with the Sheriff's Office because he violated policy due to behavioral concerns. He reported that he was working doing odd jobs - whatever he could get. He did not have current substance abuse problems. On examination he had no difficulty with visual motor precision, auditory rote recall, serial sevens, or verbal fluency. He had difficulty with naming common animals, receptive language capacities, abstract reasoning, and delayed recall. His GAF score was noted to be 48. A May 2015 private psychological report reflects that the Veteran had marked problems with insomnia and concentration, some troubles with irritability, and hypervigilance. The Veteran reported that he sometimes thinks about throwing things. He reported that he has not worked since 2013. He reported that he and his wife have an excellent marital relationship. They live in his mother's house. His GAF score was noted to be 48. A July 2015 VA treatment record reflects that in terms of the quality of the Veteran's relationships, he has good support from his wife, support from his mother which was described as "better than ever" and some support from his father, children and siblings. The May 2017 VA examination report reflects a diagnosis of PTSD that causes reduced reliability and productivity. The examiner indicated that there was no new social or marital family history, and no new occupational or educational history. The Veteran denied legal and behavioral history, as well as substance abuse history. It was noted that the Veteran experiences depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including a work or work-like setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control with periods of violence, and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. Mental status examination revealed appropriate clothing, guarded attitude at first but then cooperative, and frustrated/depressed mood. Psychomotor behavior included hand wringing and restlessness. Thought process and content were within normal limits, but he discussed his frustration with his lack of improvement. He reported that he thinks of suicide but would never go through with it because of his wife and children. Additional symptoms attributable to the Veteran's PTSD include disorganization, mood swings, difficulty leaving the house, repeatedly checking over things, problem focusing, chronic pain, low energy, and feeling tense, hopeless and nervous. His GAF score was 45. The examiner opined that due to the Veteran's mood, frustration and chronic pain, he would not be a "happy worker." His PTSD seriously impairs his social and occupational functioning. After review of the evidence of record, the Board finds that a 70 percent rating is warranted for the Veteran's PTSD with depression throughout the appeal period. For the time period prior to November 25, 2014, the Veteran's GAF was noted to be 48, which reflects serious impairment. Additionally, the medical evidence during this time period reflects impairment in mood, as the Veteran's mood was described as medium to depressed/feeling worthless, guilty. There is also evidence of impairment in thinking and judgment, in terms of the Veteran's impaired impulse control, his suicidal and homicidal ideation, as well as his circumstantial thought. He was also found to have impairment in his social interaction, especially at work, where he was found to have behavior problems, as well as at home with his children (where his mood swings and angry outbursts may have caused them to move out) . As such, a 70 percent rating is warranted throughout the appeal period. A rating in excess of 70 percent is not warranted at any time during the appeal period, however. In this regard, at no time has the Veteran been found to be totally impaired, either socially or occupationally, due to his PTSD. Importantly, the Veteran maintains a very good relationship with his wife and mother, and has some support from his father, children and siblings. He was also noted to have friends he visits weekly. Although he has been found to have difficulty establishing and maintaining effective relationships and an inability to establish and maintain effective relationships by the May 2017 VA examiner, the medical evidence shows that he does maintain effective relationships as noted above. Therefore, there is no evidence of total social impairment. Insofar as occupational impairment, the Veteran's PTSD has been found to seriously impair him occupationally and to cause him to not be a "happy worker." However, at no time has he been found to be totally occupationally impaired due to his PTSD. In sum, a 70 percent rating for the Veteran's PTSD with depression is warranted throughout the appeal period. A higher 100 percent rating is not warranted at any time during the appeal period. In reaching this decision the Board considered the doctrine of reasonable doubt, and finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating beyond the 70 percent rating granted herein for his service-connected PTSD with depression. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Plantar Fasciitis The Veteran's bilateral plantar fasciitis is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The use of the "99" series and a hyphenated diagnostic code reflects that there is no specific diagnostic code applicable to plantar fasciitis, and it must be rated by analogy. 38 C.F.R. § 4.20. Under Diagnostic Code 5276, a 10 percent disability rating is assigned for pes planus (flat foot, acquired), regardless of whether the condition is unilateral or bilateral, where there is evidence of moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet. A 20 percent disability rating for unilateral pes planus or a 30 percent disability rating for bilateral pes planus is assigned where there is a severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. A 30 percent rating for unilateral pes planus or a 50 percent disability rating for bilateral pes planus requires a pronounced disability manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5284 provides for other foot injuries. A moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. VA General Counsel has determined that Diagnostic Code 5284 is a general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion. VAOPGCPREC 9-98. The medical evidence of record includes an August 2009 VA examination report, which reflects that the Veteran's bilateral plantar fasciitis was moderate. The Veteran complained of left foot pain while standing and walking, and stiffness while walking. He complained of right foot pain and stiffness, both when walking and standing. Regarding both feet, he denied swelling heat, redness, fatigability, weakness, and lack of endurance. He can stand for 15 to 30 minutes and he can walk a quarter of a mile. He does not have flare-ups and he does not need assistive devices. On examination, his feet were tender. There was no evidence of painful motion, instability, weakness, or abnormal weight bearing. Gait was normal. There were no hammertoes, hallux valgus, vascular foot anomaly, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, atrophy or other foot deformity. X-rays were not available. The plantar fasciitis causes significant effects on the Veteran's occupation in terms of decreased mobility and pain. It moderately affects chores and prevents recreation and exercise. There is no effect on shopping, feeding, bathing, dressing, toileting, grooming, and driving. It was specifically noted that the examination was not for flat foot; the diagnosis was bilateral plantar fasciitis. At the May 2017 VA examination, he was diagnosed with right foot plantar fasciitis. The examiner stated that there was no evidence of pes planus or any left foot condition. The Veteran reported worsening since the 2011 examination. He reported sharp pain in both feet when walking for more than 30 minutes. He feels like his feet are on fire. It is worse with activity. He uses orthotics and Hydrocodone for the pain. The Veteran reported flare-ups of pain in both feet when walking. He also reported functional loss in terms of pain in both feet when walking. On examination he had pain accentuated on use and manipulation of the right foot only, as well as extreme tenderness that is not improved by orthopedic footwear (right foot only). There was no swelling or decreased longitudinal arch height on weight bearing. The examiner noted that there was no inward bowing of the Achilles' tendon. The weight bearing line did not did not fall over or medial to the great toe. There was also no deformity such causing alteration of the weight bearing line. He did not have marked deformity (pronation or abduction). There was no marked inward displacement and severe spasm of the Achilles' tendon on manipulation of one or both feet. There was no evidence of Morton's neuroma, hammertoe, hallux rigidus, pes cavus, weak foot, malunion of the tarsal and metatarsal bones, or other foot injuries. Despite the Veteran's claims of left foot pain, the examiner was unable to reproduce circumstances of such pain on examination. Factors that contribute to functional impairment or additional loss of motion after repetitive use were noted to be pain on weight bearing, disturbance of locomotion, and interference with standing. The examiner opined that there is no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when foot is used repeatedly over time. There is also no other functional loss during flare-ups or when foot is used repeatedly over time. The Veteran uses arch supports. His right foot plantar fasciitis affects employment in that he is unable to stand or walk for more than 45 minutes and he is unable to run. Based on this evidence, and in giving the Veteran the benefit of the doubt, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran's bilateral plantar fasciitis prior to May 2, 2017. In this regard, for the time period prior to May 2, 2017, the Veteran complained of pain and stiffness, and there clearly was a limitation of function. While the examiner found that there was no objective evidence of painful motion (only tenderness was found), it was noted that the Veteran could not walk more than a quarter of a mile or more than 15-30 minutes. Moreover, the examiner opined that the plantar fasciitis prevented recreation and exercise. This is objective evidence of pain and functional loss. Although there is no evidence of severe disability with objective evidence of marked deformity (pronation, abduction, etc.), indications of swelling on use, and characteristic callosities, there is evidence of pain accentuated on use. Additionally, the August 2009 VA examiner characterized the disability as moderate. Under the circumstances, and in giving the Veteran the benefit of the doubt, a higher 30 percent rating is warranted pursuant to Diagnostic Code 5276. A rating in excess of 30 percent is not warranted prior to May 2, 2017, however. While the Veteran experienced pain and pain accentuated on use, at no time was the pain characterized as extreme. Further, because the August 2009 VA examiner determined that, overall, the Veteran's bilateral foot condition was "moderate," a rating in excess of 30 percent is not warranted under Diagnostic Code 5284 (as such a rating requires actual loss of use of the foot). While the Veteran's activities are restricted, he is still able to walk a quarter of a mile, and stand for up to 30 minutes. In sum, there is no medical evidence of record that demonstrates that the criteria have been met for a rating in excess of 30 percent prior to May 2, 2017. For the time period beginning May 2, 2017, the Board finds that in giving the Veteran the benefit of the doubt, an increased rating of 30 percent is also warranted for the Veteran's right foot plantar fasciitis under Diagnostic Code 5276. Extreme tenderness of the plantar surface of the right foot was noted at the May 2017 examination, and orthotics have not offered complete relief. The Veteran reported pain and difficulty walking and standing for long periods of time, constituting functional loss. The Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing pain and difficulty walking, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although the Veteran does not meet all the criteria for a 30 percent rating, with consideration of his symptoms and functional loss, the Veteran's disability picture more nearly approximates a 30 percent rating as of May 2, 2017. The Board does not find that a 50 percent rating is warranted as of May 2, 2017, however. In this regard, there is no indication during this time period that the Veteran's foot disability is bilateral; no left foot symptoms were objectively found and no left foot disability was diagnosed by the May 2017 examiner. While the Veteran has reported left foot pain and tenderness, which he is competent to report, there is no characterization of the tenderness as "extreme," which is required for a higher rating. Moreover, the May 2017 VA examiner could not replicate any circumstances which resulted in left foot pain at the examination. As such, a higher 50 percent rating is not warranted pursuant to Diagnostic Code 5276. A higher rating pursuant to Diagnostic Code 5284 also is not warranted. In this regard, there is no evidence of loss of use of either foot, and any reports of pain, weakness, fatigability, and functional impairment are specifically encompassed in the Board's assignment of the 30 percent disability rating. (Any reports of pain, weakness, fatigability and functional impairment are insufficient to rise to the level of loss of use of the foot.) The Board has considered other diagnostic codes. However, the weight of the evidence is also against a finding of a higher rating under any other Diagnostic Code. Notably, the Veteran does not have a diagnosis of weak foot, claw foot, hallux valgus, hallux rigidus, anterior metatarsalgia (Morton's disease), or hammertoes, so evaluation under Diagnostic Codes 5277-5282 is not warranted. In sum, the Board finds that a 30 percent rating, but no higher, for the Veteran's plantar fasciitis is warranted throughout the appeal period. In reaching this decision the Board considered the doctrine of reasonable doubt, and finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating beyond the 30 percent rating granted herein for his service-connected plantar fasciitis. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Claim to Reopen The Veteran contends that he is entitled to service connection for right ear perforated tympanic membrane. For the reasons that follow, the Board finds that new and material evidence has been received to reopen the Veteran's claim. The Board notes that in April 2007 the RO denied service connection for right ear perforated tympanic membrane on the basis that there was no evidence of a nexus to service. The Veteran did not file a timely appeal with respect to the April 2007 rating action, nor was new and material evidence received within one year of the April 2007 rating action. Therefore, the April 2007 rating action is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). The evidence received since the April 2007 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). For example, an August 2009 private treatment record contains a medical opinion in favor of the claim. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether a veteran is entitled to a TDIU, neither the veteran's non-service-connected disabilities nor age may be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2017). Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that based on the increased ratings (PTSD with depression rated at 70 percent and plantar fasciitis rated at 30 percent) granted herein, the Veteran meets the schedular requirements for consideration for a TDIU prior to November 25, 2014. In his June 2010 VA Form 21-8940 the Veteran indicated that he is unemployable due to his service-connected PTSD and back disability. He reported a high school education and some additional training in his former field of law enforcement as well as some college. (The record reflects that he took some college courses through VA's vocational rehabilitation and education program.) He indicated that he last worked in law enforcement in 2010. However, VA treatment reflect that the Veteran last worked in law enforcement in 2013. For example, a July 2015 VA treatment record reflects that the Veteran has not worked since August 2013. An October 2013 VA treatment record reflects that the Veteran was not employed. As previously noted, the medical evidence shows that due to his plantar fasciitis, the Veteran cannot stand or walk for more than 30-45 minutes, and he cannot run. The May 2017 VA spine and knee examination reports reflect that due to his service-connected back and knee disabilities he cannot run, jump, or stand/walk for more than 10 minutes. The examiner specifically stated that he may not be able to apprehend suspects. Based on the subjective report of the Veteran and the objective findings in the various VA examinations, the Board finds that the Veteran's orthopedic disabilities significantly impact his ability to function in an occupational setting. They result in near constant pain and they limit his ability to stand or walk for even brief periods. Additionally, he has a high school diploma and only has training in law enforcement and some college courses. Given his serious occupational impairment due to his PTSD and lack of education and experience in sedentary employment, gainful employment doing sedentary work does not seem feasible. In light of the Veteran's occupational and educational background, the seriousness of his PTSD, and the functional limitations described above, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of his various service-connected disabilities. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted prior to November 25, 2014. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a 70 percent rating, but no higher, for PTSD with depression is granted for the entire appeal period, subject to the criteria governing the award of monetary benefits. Entitlement to a 30 percent rating, but no higher, for plantar fasciitis (also characterized as pes planus) is granted for the entire appeal period, subject to the criteria governing the award of monetary benefits. New and material evidence having been received, the claim of entitlement to service connection for right ear perforated tympanic membrane is reopened; the claim is granted to this extent. Entitlement to a TDIU prior to November 25, 2014 is granted, subject to the criteria governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's March 2015 remand directives, the Veteran was afforded new VA spine and knee examinations in May 2017. During the knee examination he complained of bilateral knee pain with walking, sitting, ascending and descending stairs, and driving (pressing gas pedal). He reported a popping sensation in the knee caps, sharp pain (10/10) and increased pain with squatting for a period of time. He cannot walk or stand for more than 10 minutes. At the spine examination the Veteran reported constant pain. Pain is relieved when reclining in chair. Pain is worse when lying down. Physical examination for both the knee and spine examinations included range of motion testing, but only one set of range of motion findings was reported for each knee and the thoracolumbar spine. The examiner indicated that passive range of motion could not be performed or was not medically appropriate; however, no further explanation was provided as to why this was the case. Additionally, although pain was noted during range of motion testing, the examiner did not state at what point the pain set in. While Board is mindful of the examiner's assertion that pain on passive range of motion was the same as active range of motion, this is in direct contradiction to the claim that passive range of motion could not be performed. Moreover, the examiner did not say whether the reported range of motion findings were the result of testing in both weight-bearing and nonweight-bearing circumstances. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, while the Veteran complained of flare-ups in terms of increased pain with prolonged squatting (knees), and lying down (back) and the VA treatment records reflect that he complained of increased pain after standing for extended periods of time as well as when squatting/kneeling, walking, driving and with sudden movements, the examiner simply said that no opinion as to functional loss during flare-ups or after repetitive use could be provided without resorting to "mere speculation" because the Veteran did not report flare-ups and because the examination was not conducted after repeated use of the knees/spine. Because the record does reflect that the Veteran reported flare-ups, and in accordance with Sharp (and Correia) the Veteran should be afforded a new examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). With respect to Correia, the examiner failed to note the point at which the Veteran experienced pain during range of motion testing and the examiner failed to record the results of joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). With respect to Sharp, the examiner also failed to estimate the amount of lost range of motion due to functional loss, in this case, pain on prolonged weight bearing and repetitive range of motion, which results in difficulty walking/performing other movements. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In light of these decisions, the Board finds that new a VA examination should be provided addressing the Veteran's bilateral knee and spine disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With respect to the Veteran's claims of entitlement to service connection for right ear hearing loss, right ear perforated tympanic membrane and tinnitus, the Board finds that a remand is required in order to obtain a new VA examination with opinion. In this regard, the Veteran underwent a VA audio examination in August 2009. Initially, the Board notes that the report of that examination provides no opinion regarding the right ear perforated tympanic membrane. Additionally, the VA examiner provided an opinion regarding the hearing loss that is not completely supported by the record. The August 2009 VA examination report reflects that on the 2000 enlistment examination the Veteran had mild to moderate hearing loss in the right ear. The examiner indicated the Veteran did not have ringing in the ears on his 2004 post-deployment examination; at the 2005 separation examination he had mild to moderate hearing loss in the right ear. The examiner noted that the Veteran was exposed to excessive noise during service (infantry - explosions, tanks, planes, helicopters, rockets, mortars). The examiner noted that the Veteran reported his tinnitus began in 2003 right around the time of the explosion that damaged his right ear. The Veteran was noted to have conductive hearing loss in the right ear. Although the examiner indicated that the opinion requested was whether the right ear hearing loss was aggravated during service, the examiner provided the following opinion: "hearing loss and tinnitus [are] less likely as not caused by or a result of service." The examiner reasoned that right ear hearing loss was present at enlistment and although the Veteran reported that his tinnitus began in 2003 around the time of the explosion, he denied ringing in the ears in 2004. The examiner opined that the tinnitus is at least as likely as not a symptom of the hearing loss. An August 2009 private treatment record reflects that the Veteran suffered a traumatic right tympanic membrane rupture in 2003 as a result of a blast injury in Iraq. It was noted that as a result he developed right ear hearing loss. It was also noted that he has intermittent drainage from the right ear and tinnitus. Additionally, a May 2009 private treatment record notes that the right ear hearing loss and tinnitus are the result of war trauma. An October 2015 VA treatment record notes that the Veteran's right ear mixed hearing loss is possibly due to ossicular chain abnormality after blast in service, or otosclerosis. A January 2010 VA treatment record notes that the Veteran had a traumatic right tympanic membrane perforation as a result of an explosion in Iraq. A review of the service treatment records reflect that on enlistment in April 2000, audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 10 40 45 At service separation in 2005, audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 45 40 At the enlistment examination the Veteran denied hearing loss. However, at the separation examination the Veteran reported that he could not hear in his right ear, he endorsed ear, nose, and throat trouble, and he reported having ear infections. As the August 2009 VA examiner did not address the specific findings in the service treatment records, did not provide an opinion regarding the right ear perforated tympanic membrane, and did not address the private and VA medical evidence in favor of the claim, a remand is required to schedule the Veteran for a new VA examination. At the present, the Veteran does not currently meet the schedular criteria for a TDIU prior to November 25, 2014. However the increased rating issues being remanded could change that. Therefore, the TDIU issue is inextricably intertwined with the increased rating issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the adjudication of the TDIU issue must be deferred pending the development requested on remand of this increased rating issues on appeal. Moreover, the Board notes that a TDIU can also potentially be granted on an extraschedular basis. 38 C.F.R. § 4.16 (b) (2017). If, in the course of adjudicating the TDIU issue, the RO determines that the Veteran does not meet the rating criteria for TDIU under 38 C.F.R. § 4.16 (a) (2017) prior to November 25, 2014, but his service-connected disabilities prevent him from following a substantially gainful occupation prior to November 25, 2014, the provisions of 38 C.F.R. § 4.16 (b) must be followed. These provisions state that a claim for TDIU may be referred to the Compensation Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16 (a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16 (b) (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Identify and obtain any pertinent, outstanding VA treatment records dating from August 2017 to the present as well as any pertinent, outstanding private treatment records and associate them with the claims file. 2. After associating any outstanding records, schedule the Veteran for an appropriate VA examination or examinations to determine the current nature and severity of his service-connected bilateral knee disability and lumbar spine disability. The examiner must conduct all indicated tests and studies, to include range of motion studies. The knees and thoracolumbar spine must be tested in both active and passive motion, and in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. The examiner should identify at what point during the range of motion that pain sets in. The examiner must describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner must also state whether the examination is taking place during a period of flare-up (e.g., on a "bad day"). If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA audio examination in order to determine the nature and etiology of the Veteran's right ear perforated tympanic membrane, right ear hearing loss, and tinnitus. The Veteran's claims file, to include a copy of this remand, must be made available to and reviewed by the VA examiner. After review of the claims file, the examiner must opine whether it is at least as likely as not (50 percent or better probability) the right ear hearing loss noted at entry to service was aggravated during active service, to include as due to the 2003 blast injury during service. For the purposes of this examination the examiner must accept the Veteran's report of the blast injury as true. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's right ear perforated tympanic membrane began during service or is otherwise etiologically related to service, to include the reported blast injury during service. For the purposes of this examination the examiner must accept the Veteran's report of the blast injury as true. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or better probability) that the Veteran's tinnitus began during service or is otherwise etiologically related to service or caused or aggravated by service-connected disability. In providing these opinions, the examiner must consider the Veteran's report of exposure to noise while serving in combat (and being exposed to explosions, rockets, mortars, gunfire, helicopter and tank noise). The examiner must also discuss the private and VA medical evidence noted above which support the Veteran's claims. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any opinion and supporting rationale cannot be provided without resorting to speculation, please state the reason why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If unable to reach an opinion because there are insufficient facts or data within the claims file to facilitate a more conclusive opinion, please identify the relevant testing, specialist's opinion, or other information required in order to resolve the need for speculation. 4. Thereafter, readjudicate the issues on appeal. In adjudicating the TDIU claim (entitlement to TDIU prior to November 25, 2014), if the RO finds that the Veteran is unemployable, but that his combined evaluation does not meet the criteria of 38 C.F.R. § 4.16 (a) for the time period under consideration, refer the Veteran's TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Service for consideration of assignment of an extraschedular evaluation for that period. If any benefit sought is not granted, the Veteran and representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs