Citation Nr: 18140555 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 18-39 786 DATE: October 3, 2018 ORDER Entitlement to a rating in excess of 30 percent for bilateral pes planus is denied. Entitlement to a rating in excess of 70 percent for PTSD with major depressive disorder is denied. FINDINGS OF FACT 1. Throughout the entire timeframe on appeal, the bilateral pes planus has not manifested with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 2. Throughout the entire timeframe on appeal, PTSD has been manifested by symptoms consistent with occupational and social impairment that involves deficiencies in most areas, including work, family relations, judgment, concentration, and mood. At no point during the period under appeal has the Veteran’s PTSD resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral pes planus, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 5276 (2017). 2. The criteria for a rating in excess of 70 percent for PTSD, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1951 to December 1952. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). During the course of this appeal, increased ratings were granted for pes planus and PTSD. The increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Also, entitlement to a TDIU was granted from May 2012, therefore, this issue is resolved and not on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Duties to Notify and Assist VCAA letters dated in May 2012 and June 2013 fully satisfied the duty to notify provisions. See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b)(1) (2017). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes that VA’s duty to assist has been satisfied. The Veteran’s service treatment records and VA medical records are in the Veteran’s claim file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The United States Court of Appeals for Veterans Claims (Court) has also held that VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). The RO provided the Veteran appropriate VA examinations, as explained below. The VA examination reports are thorough and supported by the other treatment evidence of record. The Board concludes the examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 30 percent for bilateral pes planus is denied. The Veteran’s claim was received May 2012. The Veteran’s bilateral pes planus is rated under DC 5276: For pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances, bilateral is rated at 50 percent and unilateral is rated as 30 percent. For severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, bilateral is rated at 30 percent and unilateral is rated as 20 percent. The Veteran appeared for a VA examination in March 2012. Both feet were painful, with pain accentuated on use, and on manipulation of the feet and accentuated on manipulation. There was swelling on use and characteristic calluses on the left side. Symptoms were not relieved by arch supports. There was extreme tenderness of plantar surface of both feet, improved by orthopedic shoes or appliances. There was not marked pronation of the foot. There was not marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran reported he retired early because of his feet and problems standing. The Veteran appeared for a VA examination in June 2013. Both feet were painful, with pain accentuated on use, and pain on manipulation of the feet and accentuated on manipulation on the left side. There was swelling on use. Symptoms were not relieved by arch supports. There was extreme tenderness of plantar surface of the left foot, improved by orthopedic shoes or appliances. There was not marked pronation of the foot. There was not marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran reported his ability to work was impaired by limitations on standing and walking. In August 2013, it was noted that the Veteran was not limited in sedentary employment by his pes planus. The Veteran appeared for a VA examination in August 2014. The Veteran reported moderate pain and severe flare-ups. He reported he could walk less than 100 yards. Both feet were painful, with pain accentuated on use, and on manipulation of the feet and accentuated on manipulation. Symptoms were not relieved by arch supports. There was extreme tenderness of plantar surface, not improved by orthopedic shoes or appliances. There was not marked pronation of the foot. There was no marked inward displacement and no severe spasm of the Achilles tendon on manipulation. It was noted that the Veteran is functionally limited as he can be limited to walking less than 20 yards and standing less than 5 minutes at a time. The Veteran could do sedentary work, sitting up to 3 hours at a time. The Veteran appeared for a VA examination in June 2018. The Veteran described sharp pain in his feet, and flare-ups of sharp, increasing pain. He cannot go upstairs or walk any distance. Both feet were painful, with pain accentuated on use, and on manipulation of the feet and accentuated on manipulation. There was swelling on use and calluses present in both feet. Symptoms were not relieved by orthotics. There was extreme tenderness of plantar surface, not improved by orthopedic shoes or appliances. There was not marked pronation of the foot. There was no marked inward displacement and no severe spasm of the Achilles tendon on manipulation. Contributing factors of disability were pain on weight bearing, swelling, instability of station, interference with sitting and standing, and lack of endurance. Upon flare-ups and repeated use, the Veteran reported that he cannot walk or stand without falling. The functional impact is weakness, fatigue, and unsteady on the feet with standing. Here, there is insufficient evidence of pes planus bilaterally with pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. The Board notes that the Veteran’s pes planus has manifested in August 2014 and June 2018 with extreme tenderness of plantar surface, not improved by orthopedic shoes or appliances. However, there is no evidence of marked pronation, and/or marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. Therefore, the criteria for a rating higher than 30 percent for bilateral pes planus is not met. In summary, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for a rating higher than 30 percent for bilateral pes planus. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to a rating in excess of 70 percent for PTSD with major depressive disorder is denied. The Veteran’s claim was received May 2012. The Veteran’s PTSD is rated under DC 9411: 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); inability to establish and maintain effective relationships, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). The question is whether the Veteran’s service-connected PTSD has manifested as total occupational and social impairment at any point during the pendency of the appeal. The Board finds the competent medical evidence of record reflects it has not. The Veteran appeared for a VA examination in June 2013. The examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted depressed mood, anxiety, and chronic sleep impairment. The Veteran was calm, cooperative, and logical with no suicidal ideation or homicidal ideation. In August 2013, it was reported that PTSD does not prohibit either employment of a sedentary or physical nature. In October 2013, a private physician stated that the Veteran is unable to work because of PTSD, including continuous depression and anxiety, chronic sleep impairment and difficulty adapting to stressful circumstances, including work setting. The Veteran appeared for a VA examination in April 2014. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner stated that the Veteran’s PTSD does not render him unable to secure and maintain substantially gainful employment; he would perform best in a job with limited contact with others, with few competing job demands, and with few interruptions. The Veteran appeared for a VA examination in June 2018. The Veteran reported ongoing hallucinations, sleep difficulty (going and staying), depressed mood, crying episodes, poor motivation, anhedonia, anxiety and fearfulness, poor appetite, nightmares, and recurring thoughts of Korea, in spite of the medication treatment. The Veteran becomes more anxious at night, and is fearful of going to bed. The Veteran denied a history of suicidal ideation. Depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner stated that the functional impairment caused by the psychiatric diagnosis is best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood due to depressed mood, anxiety, mild memory loss, such as forgetting names, directions or recent events, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner stated that the effect on the Veteran's ability to perform sedentary activities of employment would be significant, in that it would frequently impede him from attending to job responsibilities. The diagnoses would not directly affect physical employment activities. Upon consideration of all evidence of record, the Board finds an increased rating from 70 to 100 percent for service-connected PTSD unwarranted. The Veteran’s service-connected psychiatric disorder has not risen to the level of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The Veteran consistently demonstrated he did not suffer from total social impairment. The Veteran has consistently reported a good relationship with his family. The Board acknowledges that in October 2013, a private physician stated that the Veteran is unable to work because of PTSD, including continuous depression and anxiety, chronic sleep impairment and difficulty adapting to stressful circumstances, including in a work setting. However, the evidence does not indicate total occupational impairment, as prior and subsequent VA examinations, which contained more extensive rationale, noted continuous depression and anxiety, chronic sleep impairment and difficulty adapting to stressful circumstances, including in a work setting, but stated that while these symptoms impaired ability to work, the Veteran with his psychiatric ability alone was able to pursue employment in certain settings. The Veteran’s disability picture is most appropriated contemplated by the 70 percent rating criteria. Giving the Veteran the benefit of the doubt, the medical evidence and lay statements of record demonstrate occupational and social impairment, with deficiencies in most areas, including work, school, family relations, judgment, thinking and/or mood due to depressed mood, anxiety, mild memory loss, such as forgetting names, directions or recent events, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Board finds that a disability rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran has not exhibited total social and occupational impairment. In summary, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for a 100 percent increased rating for PTSD. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev