Citation Nr: 18152101 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 15-19 992 DATE: November 21, 2018 ORDER Restoration of a 30 percent rating for bilateral pes planus and plantar fasciitis with metatarsalgia is denied. Restoration of a 50 percent rating for major depressive disorder with anxious distress, single episode, previously rated as posttraumatic stress disorder with generalized anxiety and panic disorders (also claimed as depression), is denied. FINDINGS OF FACT 1. A December 2014 rating decision proposed to reduce the disability rating assigned to the Veteran’s service connected bilateral pes planus and plantar fasciitis with metatarsalgia from 30 percent to 10 percent. 2. An April 2015 rating decision effectuated the proposed reduction for bilateral pes planus and plantar fasciitis with metatarsalgia from 30 percent to 10 percent, effective July 1, 2015. 3. During the appeal period, the Veteran’s bilateral pes planus and plantar fasciitis with metatarsalgia has not been more nearly manifested by marked deformity, pain on manipulation and use, swelling, and characteristic callosities. 4. A December 2014 rating decision proposed to reduce the disability rating assigned to the Veteran’s service connected major depressive disorder (MDD) with anxious distress, single episode, previously rated as posttraumatic stress disorder (PTSD) with generalized anxiety and panic disorders (also claimed as depression), from 50 percent to 10 percent. 5. An April 2015 rating decision effectuated the proposed reduction for MDD with anxious distress, single episode, from 50 percent to 10 percent, effective July 1, 2015. 6. During the appeal period, the Veteran’s MDD with anxious distress, single episode, has not been more nearly manifested by occupational and social impairment with reduced reliability and productivity. It also has not been manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for restoration of 30 percent disability rating for bilateral pes planus and plantar fasciitis with metatarsalgia are not met. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e); 4.10, 4.13, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for restoration of 50 percent disability rating for MDD with anxious distress, single episode, are not met. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.10, 4.13, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Restoration of 30 percent disability rating for bilateral pes planus and plantar fasciitis with metatarsalgia. The Veteran contends that the reduction of the disability rating from 30 percent rating to 10 percent for her bilateral pes planus and plantar fasciitis with metatarsalgia was improper because her symptoms have not improved. The Board concludes that the preponderance of the evidence is against restoration of a 30 percent rating for bilateral pes planus and plantar fasciitis with metatarsalgia as the correct procedures for reduction of the evaluation were followed and because reexamination disclosed actual improvement in the disability. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e); 4.10, 4.13, 4.71a, DC 5276. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60 day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, as a threshold matter, the Board finds that VA provided the required notice, gave the Veteran an appropriate period of time for response, and effectuated the reduction in accordance with applicable laws. The procedural history of the claim reflects that VA complied with the procedures required under 38 C.F.R. § 3.105(e). Neither the Veteran nor her representative has asserted a failure by VA to comply with 38 C.F.R. § 3.105(e). Where an evaluation has not continued at the same level for five or more years, 38 C.F.R. § 3.344 (a) and (b) are not for application. In the present case, the Veteran’s 30 percent evaluation for bilateral pes planus and plantar fasciitis with metatarsalgia was awarded effective May 26, 2013, and was reduced effective July 1, 2015, which is less than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that the express language of § 3.344(c) and other VA regulations compels the conclusion that the duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction). As such, the requirements of 38 C.F.R. § 3.344 (a) and (b) do not apply in the instant case; but rather, in this matter, evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating. 38 C.F.R. § 3.344(c). Pursuant to DC 5276, bilateral pes planus and plantar fasciitis with metatarsalgia warrant a 10 percent rating when symptoms are moderate with weight-bearing line over or medial to great toe, inward bowing of the achilles tendon, pain on manipulation and use of the feet. A 30 percent rating is warranted when symptoms are severe, with marked deformity, accentuated pain on manipulation and use, swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, DC 5276. An August 2013 rating decision granted the Veteran service connection for bilateral pes planus and plantar fasciitis with metatarsalgia, with a 30 percent evaluation, effective May 26, 2013, based on evidence of bilateral involvement, weight-bearing line over or medial to great toe, characteristic calluses, extreme tenderness of plantar surfaces of the feet, swelling on use, accentuated pain on use, and symptoms relieved by arch supports and built-up shoes. According to a September 2014 VA examination, the Veteran indicated she did not need treatment and only took occasional ibuprofen for pain. She still had pain when she woke up and often when she walked. When stretching her feet in morning, it occasionally hurt, but improved as the day progressed. With regard to the pes planus, the examiner found there was no functional impairment or loss, pain on use, pain on manipulation, swelling on use, or characteristic calluses. There was no extreme tenderness of plantar surfaces. The Veteran had decreased longitudinal arch height both feet, but no marked deformity. The weight bearing line did not fall over or medial to the great toe. There was no inward bowing of achilles tendon, marked inward displacement, or severe spasm of the achilles tendon on manipulation. The Veteran did not report flare ups and did not require arch supports. The examiner found that the symptoms associated with plantar fasciitis were mild to moderate in severity. The plantar fasciitis did not chronically compromise weightbearing, require arch supports, inserts, or shoe modifications, or surgery. There was no pain on examination. There was no pain, weakness, fatigability or incoordination during flare ups or when feet were used repeatedly. The Veteran had a normal gait, and was able to walk on tiptoes, on heels, do tandem gait, and perform one legged stance. There were no ulcers, tenderness, erythema, or inflammation noted on examination of both feet. Reflex, muscle strength, and sensory tests were normal. There was no evidence of atrophy, scars, or arthritis. The examiner concluded that the Veteran’s conditions did not impact her ability to perform any type of occupational task. Based on those findings, a December 2014 rating decision proposed reduction of the disability rating from 30 percent to 10 percent. A December 24, 2014 letter notified the Veteran of the proposed action. The Veteran did not contest the proposed reduction, or provide any lay or medical evidence to show that her foot disability had not improved. In an April 2015 rating decision, the RO effectuated reduction of the rating for the Veteran’s bilateral pes planus and plantar fasciitis with metatarsalgia from 30 to 10 percent, effective July 1, 2015, based on the medical findings of the September 2014 VA examination report. An April 9, 2015 letter notified the Veteran that the RO had reduced the rating. The Board finds that the probative evidence demonstrates that there was actual improvement in the Veteran’s service connected bilateral pes planus and plantar fasciitis with metatarsalgia with actual improvement in the Veteran’s ability to function under the ordinary conditions of life. The weight of the evidence is against restoration of a 30 percent disability rating for bilateral pes planus and plantar fasciitis with metatarsalgia. Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Restoration of 50 percent disability rating for MDD with anxious distress, single episode, previously rated as PTSD with generalized anxiety and panic disorders (also claimed as depression). The Veteran contends that the reduction of the disability rating for MDD with anxious distress, single episode, previously rated as PTSD with generalized anxiety and panic disorders (also claimed as depression), from 50 percent to 10 percent was improper because her symptoms have not improved. The Board concludes that the preponderance of the evidence is against restoration of a 50 percent rating for MDD with anxious distress, single episode, previously rated as PTSD with generalized anxiety and panic disorders (also claimed as depression), as the correct procedures for reduction of the evaluation were followed and because reexamination disclosed improvement in the disability. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.10, 4.13, 4.130, DC 9434. In the present case, the Veteran was awarded a 50 percent evaluation for MDD with anxious distress, single episode, previously rated as PTSD with generalized anxiety and panic disorders (also claimed as depression), effective May 26, 2013, and was reduced effective July 1, 2015, which is less than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that the express language of § 3.344(c) and other VA regulations compels the conclusion that the duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction). As such, the requirements of 38 C.F.R. § 3.344 (a) and (b) do not apply; but rather, in this matter, evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating. 38 C.F.R. § 3.344(c). Under the General Rating Formula, a 10 percent disability rating is appropriate when 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. 38 C.F.R. § 4.130. The criteria for a 30 percent disability rating requires 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, mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent disability rating requires 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; difficulty in establishing and maintaining effective work and social relationships. In an August 2013 rating decision, the Veteran was granted service connection for PTSD with generalized anxiety and panic disorders (also claimed as depression) based on a May 2013 examination report. According to the May 2013 examination report, the Veteran had symptoms that included difficulty in adapting to work, difficulty in adapting to stressful circumstances, difficulty in adapting to a worklike setting, and difficulty in establishing and maintaining effective work and social relationships. The examiner found occupational and social impairment with reduced reliability and productivity, with mild memory loss (forgetting directions, names, and recent events), weekly panic attacks, chronic sleep impairment, anxiety, and suspiciousness. According to a September 2014 VA examination report, the examiner determined that the Veteran did not meet all the criteria for PTSD and diagnosed the Veteran has having MDD with anxious distress, single episode, in full remission. The examiner noted that the Veteran was divorced from her husband, who had been the source of her trauma. She was in a positive and supportive relationship. She was social and attending college full time. The Veteran reported that she was not in mental health treatment and was not seeking mental health services. She was not being prescribe any psychiatric medical and was able to cope on her own. She described her mood most days as “ok, fine, happy, sometimes frustrated.” She had difficulty sleeping with periods of wakefulness and occasional nightmares. The Veteran denied difficulty with concentration, suicidal or homicidal thoughts or intent, or audio or visual hallucinations. The examiner determined that the Veteran did not meet criterion C, D, or E required for a diagnosis of PTSD. In a December 2014 rating decision, the RO proposed to change the diagnosis from PTSD with generalized anxiety and panic disorders to MDD with anxious distress, single episode, and to reduce the Veteran’s evaluation from 50 percent to 10 percent based on the September 2014 VA examiner’s finding that the Veteran had 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 December 24, 2014 letter notified the Veteran of the proposed reduction. The Veteran did not contest the change in diagnosis or submit any lay or medical evidence within the 60-day response period to show that compensation payments should be continued at the 50 percent level. 38 C.F.R. § 3.105(e). The Board has considered the implications of the change in diagnostic code and recognizes that any change in a diagnostic code by VA must be explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, the September 2014 VA examination found the Veteran’s psychiatric disability was primarily manifested by depressive symptomatology and that the Veteran did not meet all the criteria for PTSD. In an April 2015 rating decision, the RO effectuated the change in diagnosis from PTSD with generalized anxiety and panic disorders to MDD with anxious distress, single episode and the reduced rating from 50 percent to 10 percent, effective July 1, 2015, based on the Veteran having 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. An April 9, 2015 letter notified the Veteran of the reduction. Medical evidence from the Jacksonville VA Outpatient Clinic, dated April 10, 2015, showed the Veteran reported some anxiety and depressed mood. She was prescribed Sertraline. A VA psychology note dated April 15, 2015 showed the Veteran was alert, oriented and with good eye contact. Her thought content and process were logical and memory was intact. Her insight and judgment was good with no evidence of mania, no evidence of psychosis, hallucinations or delusions. The Veteran denied suicidal and homicidal ideation, intent, or plan. The examiner noted major depressive and anxiety disorder. In sum, the Board finds that the probative evidence demonstrates that there was actual improvement in the Veteran’s mental health disability with actual improvement in the Veteran’s ability to function under the ordinary conditions of life. The weight of the evidence is against restoration of a 50 percent disability rating for MDD. (Continued on the next page)   Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel