Citation Nr: 18155012 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-19 716A DATE: December 4, 2018 ORDER Entitlement to a rating greater than 20 percent for residuals of a right fifth metatarsal fracture is denied. Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than December 7, 2011, for a total disability based on individual employability is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the residuals of the right fifth metatarsal fracture has been manifested by pain from a moderately severe malunion of the metatarsal bones. 2. Throughout the period on appeal, the Veteran’s PTSD has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran’s PTSD has not resulted in total occupational and social impairment. 3. A January 2009 rating decision that denied a claim for TDIU is final. The first evidence of a claim for TDIU is the December 7, 2011, correspondence that was a claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected residuals from a fracture of a right fifth metatarsal have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, DC 5283. 2. The criteria for an evaluation greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9411. 3. The criteria for an effective date earlier than December 7, 2011, for the grant of TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to May 1974. Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating greater than 20 percent for residuals from a fracture of a right fifth metatarsal The Veteran contends that his service-connected residuals from a fracture of his right fifth metatarsal warrant a disability rating higher than his current 20 percent evaluation. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through either atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.59 contain additional guidelines for evaluating musculoskeletal disability, but are inapplicable where the disability is already rated at a compensable level. Vilfranc v. McDonald, 28 Vet. App. 357 (2017). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Veteran was granted service connection for residuals of a right fifth metatarsal fracture in a January 1980 rating decision evaluated at 0 percent disability. In September 2011, the Veteran submitted a claim for an increased rating. In the February 2013 rating decision on appeal, the evaluation was increased to 20 percent, effective September 14, 2011. Foot disabilities are governed by the provisions of 38 C.F.R. § 4.71a, DC 5276 through 5284. The Veteran’s foot disability has been evaluated under Diagnostic Code (DC) 5299-5284, by analogy to “other foot disabilities.” The Board notes, however, that DC 5284, which provides 10, 20, and 30 percent ratings for (respectively) moderate, moderately severe, and severe “other” foot injuries, is inapplicable in this case. DC 5284 does not apply to the eight foot conditions specifically listed in 38 C.F.R. § 4.71 (a), and that rating the listed conditions under DC 5284 constitutes an impermissible rating by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). The Veteran’s disability should be rated under DC 5283 for malunion or nonunion of the tarsal or metatarsal bones. Under DC 5283, a 10 percent evaluation is for assignment for malunion or nonunion of the tarsal or metatarsal bones where there is moderate disability. Where the level of disablement is moderately severe, a 20 percent rating is assignable and where there is severe disablement, a 30 percent rating is for assignment. A 40 percent rating should be assigned if there is loss of use of the foot. 38 C.F.R. § 4.71a Diagnostic Code 5283. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in VA’s Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. That is to say, use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. The Veteran was given a VA examination in June 2012. The examiner identified that the Veteran was diagnosed with a malunion of the right metatarsal bones and residual fracture to the right fifth metatarsal. The Veteran reported to the examiner that he takes ibuprofen for pain as needed and that he is not had any physical therapy for the previous twelve months. The examiner noted a private opinion in the Veteran’s file from June 2009, stating, that the right foot has a malunion of the right fifth metatarsal with a bony protuberance and causes pain. The examiner opined that the Veteran’s malunion of the right metatarsal bones were moderately severe. Two X-ray views of the Veteran’s right foot were taken and reviewed by the examiner. The examiner noted, “there is evidence of old trauma to the head of the 5th metatarsal. This is well healed. No arthritis. Joint space well preserved. Impression: Old fracture to the 5th metatarsal bone which, now appears to have healed completely.” The examiner further noted that the Veteran is able to walk a short distance of less than 30 minutes and when walking longer than 30 minutes he has to rest frequently due to the right foot cramps. Based on the competent evidence of record, the Board finds that a rating in excess of 20 percent disability for service-connected residuals of the right fifth metatarsal fracture is not warranted. The Veteran’s symptoms manifested during the period on appeal were pain, and limitation in walking after approximately 30 minutes that required rest. The examiner’s assessment that the Veteran’s disability is moderately-severe is credible and probative. A higher 30 percent rating requires a severe manifestation of symptoms, such as not being able to walk more than a few feet or a few minutes without rest. Severe symptoms are between what the Veteran described as being able to walk approximately 30 minutes before requiring rest, and the highest rating of 40 percent, which is actual loss of use of the foot. The Board agrees that the Veteran’s symptoms are moderately severe. There are no statements or evidence in the record that contradict the examiner’s findings. The Board acknowledges the statements from the Veteran and his representative regarding the etiology and circumstances surrounding how the Veteran sustained his injuries and the pain he has experienced since falling 100 feet while repelling from an aircraft. However, the Board is procedurally barred from considering issues that were decided where the Veteran did not appeal the decision or submit new and material evidence with one year of the rating decision, thus making that decision is final. 38 U.S.C. § 7103; 38 C.F.R. § 20.1103. That is the case here where, the Veteran’s claim for his foot disability was decided in a January 1980 rating decision. No appeal or new and material evidence was submitted within a year making the 0 percent disability rating final. September 14, 2011, is the first date a claim, formal or informal, is made for an increased rating, making September 14, 2011 start of the current period on appeal the Board may consider for this issue. In summary, the preponderance of the evidence is against the claim for a rating in excess of 20 for service-connected residuals of a right fifth metatarsal fracture. 38 U.S.C. § 5107(b). 2. Entitlement to an initial rating greater than 70 percent for PTSD The Veteran contends that his service-connected PTSD warrants an evaluation higher than his current 70 percent disability rating. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of Diagnostic Code 9411, a rating of 100 percent is assignable for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assignable for 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 work like setting); inability to establish and maintain effective relationships. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118 The RO granted service connection with a 70 percent disability rating in a February 2013 rating decision, effective December 7, 2011. The Veteran was afforded a VA examination in May 2012 after which the examiner characterized his occupational and social impairment as “occupational and social impairment with reduced reliability and productivity.” The examiner diagnosed PTSD and mood disorder due to chronic pain. The opinion also noted the Veteran had disturbing memories, dreams, anger and avoidance behaviors associated with his PTSD and depression is consistent with his mood disorder. The examiner noted the Veteran’s specific symptoms as, depression, anxiety suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of long-term and short-term memory, flattened affect, difficulty understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty establishing and maintaining effective relationships and impaired impulse control with unprovoked periods of violence. The Veteran was also reported to have emotional issues that would have a detrimental effect on his employment abilities and difficult time relating to co-workers or authority figures. The examiner further found that the Veteran would have a difficult time following complex instruction and recalling information. A note from the examiner showed that the Veteran’s claims file was not available to examiner during the opinion, so that the examiner was unable to review the Veteran’s military records. In February 2013, an addendum VA medical opinion was obtained for the Veteran’s PTSD to allow the examiner to include a review of the Veteran’s claims file. The examiner noted that after reviewing the Veteran’s file and May 2012 VA examination were reviewed, no changes or additions were needed to the May 2012 VA PTSD medical opinion. A review of the Veteran’s VA medical records show that his primary care provider (PCP) screening was negative for depression in May 2014 and negative for PTSD screening March 2017. Despite the Veteran’s complaints of chronic neck and low back pain in September 2017 PCP visit, he denied and depression and his mood was noted as good. After a review of the evidence, the Board finds that a rating in excess of 70 percent is not warranted. The Board finds the May 2012 and February 2013 VA examination opinions persuasive in that despite categorically finding the Veteran’s occupational and social impairment as occupational and social impairment with reduced reliability and productivity, the examiner provided specific detailed symptoms that do not meet of more closely approximate the criteria for at the criteria for a 100 percent rating. There is no evidence that the Veteran’s PTSD results in total occupational and social impairment and there was no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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, or his own name. In summary, the preponderance of the evidence is against the claim for an initial rating in excess of 70 for service-connected PTSD. 3. Entitlement to an effective date earlier that December 7, 2011, for the grant of TDIU The Veteran contends TDIU should be effective from September 2007 when he had to stop working from chronic pain from his injuries sustained in the United States Marine Corps. Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a): For increased rating claims, the effective date shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). The Veteran filed a claim for TDIU that was denied in a January 2009 rating decision because there was no evidence that he was unemployable as a result of service-connected disabilities and he did not meet the schedular criteria for consideration TDIU. 38 C.F.R. § 4.16. The Veteran did not perfect an appeal of that decision and it became final. The Veteran filed a VA Form 21-8940 Application dated in February 2012, received in March 2012. In the February 2013 rating decision that granted TDIU, service connection was granted for PTSD and an increased rating was granted for the foot disability. The basis of the grant of TDIU was the effects of the now service-connected PTSD. The effective dates of the grant of PTSD and award of TDIU was eventually changed to December 7, 2011, which the RO noted was the date of receipt of the claim for PTSD. After the final January 2009 rating decision, December 7, 2011, is the earliest communication that could be considered a claim for TDIU, as part of the claim of service connection for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to December 7, 2011, the Veteran was not service connected for PTSD, the disability which was the basis of the finding that the Veteran was unemployable. (Continued on the next page)   Absent evidence of a claim earlier than December 7, 2011, or that the Veteran was unemployable as a result of disabilities for which service connection was in effect prior to that date, an effective date earlier than December 7, 2011, is not warranted. The claim is denied. 38 C.F.R. § 3.400 (b)(2)(i). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael