Citation Nr: 18145105 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-24 411 DATE: October 26, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder (hereafter referred to simply as an “acquired psychiatric disorder”), is denied. Entitlement to an initial disability rating of 10 percent for service-connected plantar fasciitis of the right foot is granted. Entitlement to an initial compensable disability rating for service-connected plantar fasciitis of the left foot is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder is neither proximately due to nor aggravated beyond its natural progression by her service-connected cervical spine condition, and is not otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence shows that the Veteran’s service-connected plantar fasciitis of the right foot is moderate in severity, with pain despite the use of custom orthotics. 3. The preponderance of the evidence shows that the Veteran’s service-connected plantar fasciitis of the left foot is no more than mild in severity, with her symptoms being effectively relieved by custom orthotics. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial disability rating of 10 percent for service-connected plantar fasciitis of the right foot have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284. 3. The criteria for an initial compensable disability rating for service-connected plantar fasciitis of the left foot have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from December 1984 to February 1989, and in the United States Coast Guard from March 1989 to August 2009. This case is on appeal before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, and a November 2015 rating decision of the VA RO in Muskogee, Oklahoma. Neither the Veteran nor her representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran alleges that her acquired psychiatric disorder was caused by active service or, in the alternative, was aggravated by active service or caused by her service-connected cervical spine condition. However, the preponderance of the evidence is inconsistent with these claims. The Veteran also asserts that her service-connected bilateral plantar fasciitis warrants an initial compensable disability rating. While the evidence of record is in equipoise concerning the application of a 10 percent disability rating for the Veteran’s plantar fasciitis of the right foot, the weight of the evidence is against the assignment of a compensable evaluation for her plantar fasciitis of the left foot. I. Service Connection The Veteran seeks service connection for an acquired psychiatric disorder, which she claims is either related to active service, aggravated by active service, or is linked to her service-connected cervical spine condition. The Veteran identifies stress during service and the limitations posed by her service-connected disabilities as factors contributing to the development of her acquired psychiatric disorder. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain identified chronic diseases, including psychoses, may also be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree within a prescribed period following separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). The term "psychosis" means any of the following disorders listed in the DSM-5: (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to Another Medical Condition; (d) Other Specified Schizophrenia Spectrum and Other Psychotic Disorder; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; and (h) Substance/Medication-Induced Psychotic Disorder. 38 C.F.R. § 3.384. However, the presumption of service connection for chronic diseases under 38 C.F.R § 3.309(a) does not apply in this case because the record does not show any diagnosis of a psychosis during service or within one year of the Veteran's separation from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331. The enumerated diseases include psychoses, but do not include any of the psychiatric or mental disorders that have been diagnosed in this case. As such, there is no presumption of service connection for any of the conditions at issue. In a treatment record from December 2011, the Veteran stated that she was diagnosed with posttraumatic stress disorder (PTSD) in 1995. A progress note from June 2016 also reflects a diagnosis of PTSD. Generally, service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). However, VA regulations require diagnoses of PTSD to be made in accordance with either the DSM-4 or DSM-5 diagnostic criteria. Given that this appeal was certified to the Board after August 4, 2014, the DSM-5 is the governing directive. 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093 (August 4, 2014). Nonetheless, there is no indication in the record that either diagnosis of PTSD was issued in accordance with the proper diagnostic criteria. Similarly, the Veteran has not claimed to have PTSD in any of the documents filed in connection with this appeal. As such, this diagnosis will not be discussed further. The Veteran’s service treatment records show that she sought treatment for an elevated heart rate in May 1996. At the time, the Veteran stated that she had a five-year history of heart palpitations, with episodes occurring twice per year. The Veteran indicated that these episodes occurred when she reacted or moved quickly and usually lasted around 25 minutes. This particular incident happened when the Veteran was sitting down and turned her trunk. The Veteran attributed this episode to anxiety brought on by a new supervisor and short staffing at work. The attending physician noted no prior history of cardiac problems, and the Veteran denied radiating pain. During an examination in September 1998, the Veteran stated that she had always been a worrier. The attending physician noted the Veteran’s episode of heart palpitations in May 1996 but indicated that there had been no recurrent incidents since. Similarly, an examination from September 2003 referenced the Veteran’s history of heart palpitations, but stated that there was no evidence of continuing problems. In a report from January 2009, the Veteran admitted that she sought counseling for childhood issues related to her mother. However, these records are not associated with the claims file, and there is no further evidence of psychological problems during service. Following separation, the Veteran sought psychological treatment. At an appointment in in December 2011, the Veteran stated that she had undergone counseling during service. The Veteran indicated that, at the time, she had a great deal of stress and was crying often due to problems with her mother. In February 2012, the Veteran presented with anxiety that was described as chronic, intermittent, and stable. The Veteran was also attending community college at the time. The Veteran stopped attending counseling in May 2012. In October 2014, the Veteran indicated that she was no longer on anxiety medication. Though she reported no new panic attacks, she stated that the anxious feeling would still return. The Veteran was afforded a VA psychological examination in April 2015. The examiner reviewed the claims file and conducted an in-person examination of the Veteran. The Veteran reported depressed mood, chronic sleep impairment, and disturbances of motivation and mood. However, she denied anxiety and panic attacks. Based on this information, the examiner diagnosed the Veteran with unspecified depressive disorder, opining that this condition is less likely than not related to her service-connected disabilities. This is because the Veteran did not describe concerns about her other medical conditions; indeed, all of her emotional concerns involved interpersonal relationships. The Veteran underwent a second VA psychological examination in July 2016. The examiner reviewed the claims file and conducted an in-person examination of the Veteran, diagnosing her with unspecified anxiety disorder and unspecified depressive disorder. The examiner acknowledged the Veteran’s history of heart palpitations, as well as her later accounts of experiencing anxiety during service. However, the examiner opined that the Veteran’s psychiatric disability “is not related or caused by complains of anxiety during service. There is no evidence of a chronic disability impacting social and occupational functioning.” In coming to this conclusion, the examiner provided an extensive rationale citing to both in-service and post-service medical data. This includes cited military medical histories from September 2003 and January 2008 where the Veteran denied anxiety, worry, suicidal ideations, and sleep disturbance, and evidence subsequent to service showing that the contributing factors to the Veteran’s psychiatric disability were matters unrelated to service. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran has an acquired psychiatric disorder that was caused or aggravated by service, or is related to another service-connected condition. In making this determination, the Board assigns the greatest probative value to the opinions of the April 2015 and July 2016 VA examiners. The Board notes that the opinion of the April 2015 VA examiner only addresses the issue of secondary service connection, while the opinion of the July 2016 VA examiner only addresses the issue of direct service connection. Nonetheless, taken together, these opinions address every possible etiology of the Veteran’s acquired psychiatric disorder. Both the April 2015 and July 2016 VA examiners had the benefit of examining the Veteran and the claims file, including her service and VA treatment records. Neither found any relationship between her acquired psychiatric disorder and an in-service event or injury, or another service-connected condition. The Board thus affords these opinions the greatest probative weight, and adopts the examiners’ conclusion that the Veteran does not have a current acquired psychiatric disorder in any way related to service. The Board also acknowledges the statements of the Veteran, which allege that her acquired psychiatric disorder was caused or aggravated by service, or is linked to another service-connected condition. Although lay witnesses are competent to report psychiatric symptoms, they are not competent to diagnose themselves with a psychiatric disorder or offer an opinion as to its etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinions provided by the VA examiners in April 2015 and July 2016 are more probative than the Veteran’s lay assertions. The VA examiners have expertise, education, and training that the Veteran is not shown to have. As such, those etiology opinions warrant more weight. In conclusion, based on the medical evidence as well as lay testimony, the Board finds that the weight of the evidence is against the Veteran’s contention that her acquired psychiatric disorder is related to service. Similarly, there is nothing in the record to suggest that her acquired psychiatric disorder was aggravated by service, or indicate a link between this impairment and her service-connected cervical spine condition. Although the Board acknowledges the Veteran’s statements alleging that her psychiatric condition was caused by service or other service-connected disabilities, the majority of evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for an acquired psychiatric disorder is denied. II. Increased Rating The Veteran contends that her service-connected bilateral plantar fasciitis warrants an initial compensable disability rating throughout the entire appeal period, which began on February 11, 2015, the date service connection was established. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board notes that the RO assigned a noncompensable rating for the Veteran’s service-connected bilateral plantar fasciitis under Diagnostic Code 5276. 38 C.F.R. § 4.71a. However, Diagnostic Code 5276 concerns ratings for acquired pes planus (flatfoot), which is not a condition with which the Veteran has been diagnosed. Given that there is no diagnostic code specifically for plantar fasciitis, the Board determines that the Veteran’s bilateral foot condition should be rated under Diagnostic Code 5284, which addresses other injuries of the foot. See Prokarym v. McDonald, 27 Vet. App. 307 (2015) (holding that Diagnostic Codes 5276 and 5284 address symptomatology attributable to distinct foot impairments). Under Diagnostic Code 5284, a 10 percent disability rating is warranted when the injury is moderate. Additionally, a 20 percent evaluation is assigned if the injury is determined to be moderately severe. A 30 percent disability rating is warranted when the injury is severe. Finally, a 40 percent evaluation is assigned with actual loss of the entire foot. 38 C.F.R. § 4.71a. Since the evidence of record indicates different levels of disability due to plantar fasciitis in each of the Veteran’s feet, her right and left foot will be assigned separate evaluations. The Board notes that words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination for her plantar fasciitis in April 2015. The examiner conducted an in-person examination of the Veteran, noting plantar fasciitis of the bilateral feet. While the Veteran reported no pain in her left foot, she endorsed pain and flare-ups in her right foot. However, she did not claim any functional loss, swelling on use, or tenderness. The Veteran also stated that she used arch supports in both feet. The Veteran reported no history of foot surgery, but claimed that she used custom orthotics occasionally. Upon examination, there was no evidence of marked deformities, pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period time. Based on this information, the examiner opined that the Veteran’s plantar fasciitis does not affect her ability to perform any type of occupational task. During an appointment in May 2016, the Veteran displayed normal gait and posture with no complaints of pain in her feet. The next month, the Veteran indicated that she was still using her custom orthotics. She also displayed normal gait and posture during another appointment in August 2016, and did not report any pain in her feet to the attending physician. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the application of a compensable disability rating for the Veteran’s service-connected plantar fasciitis of the left foot. However, it assigns a 10 percent disability rating for her service-connected plantar fasciitis of the right foot. The Board notes that under Diagnostic Code 5284, a 10 percent evaluation is assigned for a “moderate” foot injury. Here, during the April 2015 VA examination, the Veteran reported pain and flare-ups in her right foot, but not in her left. Given that this pain persisted despite the use of orthotics, the Board affords the benefit of the doubt to the Veteran’s statements and concludes that she suffers from a moderate injury due to her service-connected plantar fasciitis of the right foot. As such, the Board finds that this condition warrants an initial 10 percent disability rating under Diagnostic Code 5284. However, because the Veteran herself indicated that her service-connected plantar fasciitis of the left foot is generally asymptomatic, the Board declines to assign a compensable disability rating for this condition. The Board also concludes that the preponderance of the evidence does not demonstrate that the Veteran’s service-connected plantar fasciitis of the right foot results in a “severe” or “moderately severe” injury. Indeed, although the Veteran reported pain in her right foot during the April 2015 examination, this was not reproduceable. Additionally, the Veteran indicated that her right foot plantar fasciitis did not result in functional loss even when she suffered from pain and flare-ups. Moreover, the evidence shows that the only discernible effect of the Veteran’s right foot plantar fasciitis, aside from pain, was to require her to wear custom orthotics, which she did through at least August 2016. She has not alleged difficulty ambulating or other symptoms that would suggest the presence of a “severe” or “moderately severe” injury. As such, a disability rating in excess of 10 percent for the Veteran’s service-connected plantar fasciitis of the right foot is not warranted under Diagnostic Code 5284. Thus, the Board finds that the evidence is in equipoise concerning the application of an initial 10 percent disability rating for the Veteran’s service-connected right foot plantar fasciitis throughout the entire period on appeal. Thus, that claim is granted. However, the weight of the evidence is against the assignment of an initial compensable disability rating for the Veteran’s service-connected plantar fasciitis of the left foot. To the extent that any higher level of compensation is sought for that appeal, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for an initial compensable disability rating for service-connected plantar fasciitis of the right foot is granted, but her claim for an initial compensable disability rating for service-connected plantar fasciitis of the left foot is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel