Citation Nr: 18156818 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-53 711A DATE: December 11, 2018 ORDER Entitlement to service connection for hallux valgus of the left foot is denied. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for pseudofolliculitis barbae is remanded. Entitlement to a disability rating in excess of 20 percent for right knee status-post ACL reconstruction with hamstring autograph and medial meniscectomy with traumatic arthritis is remanded. Entitlement to service connection for a right foot disability is remanded. FINDINGS OF FACT 1. Hallux valgus of the left foot existed prior to the Veteran’s active service was not aggravated beyond its natural progression during active service. 2. For the entire period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with occasional decrease in work efficiency. CONCLUSIONS OF LAW 1. Hallux valgus of the left foot existed prior to the Veteran’s active duty service and was not aggravated therein. 38 U.S.C. §§ 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2018). 2. The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in §3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2018). Regulations also 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). If a pre-existing disorder is “noted” on entering service, in accordance with 38 U.S.C. § 1153, the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). “Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Entitlement to service connection for hallux valgus of the left foot The Veteran has asserted that his left foot hallux valgus was incurred in active service. The Veteran’s August 2001 enlistment examination report clearly shows that he was diagnosed with mild hallux valgus of his left foot at the time of his entry into active service. The Veteran’s service treatment records (STRs) are otherwise silent for complaints or treatment for left foot pain during service. In the Veteran’s May 2006 separation report of medical history, he reported on-going issues with his right knee, but did not report any problems with his left foot. While post service treatment records are replete with on-going care and management of a right knee disability, they are silent for any complaints or treatment for a left foot disability. At a September 2016 VA examination, the Veteran complained of redness, swelling and pain in his left foot. He reported that his toes go numb with walking, and that the symptoms started with walking in military boots. The examiner noted the Veteran’s diagnosis of left hallux valgus upon entry into service, and that the Veteran did not seek treatment for any symptoms of left sided foot pain while in service. Upon examination, the examiner diagnosed the Veteran with mild hallux valgus in both feet. The September 2016 VA examiner cited to medical literature which noted that hallux valgus is “multifactorial in origin and includes such factors as abnormal foot mechanics, abnormal first metatarsophalangeal anatomy, joint hypermobility and genetic influences.” It was noted that that it is a progressive deformity and although conservative treatment will provide relief, it does not reverse a bunion deformity. The examiner noted the Veteran’s statements of pain beginning after his enlistment, but noted that there were no documented medical visits for left foot pain, no documentation of foot problems during the separation exam, and no evidence of a worsening of the pre-existing disability beyond the natural progress of the disease. Based on the examination of the Veteran and a review of the claims file, the examiner concluded that it was less likely as not that the Veteran’s left hallux valgus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression during service. The Board accords great probative weight to the September 2016 VA examiner’s opinion. The examiner provided a thorough rationale and based her conclusions on a review of the record, reference to medical literature, and examination and interview of the Veteran. The examiner offered clear conclusions with reliance on the supporting data. The opinion rendered was framed in the necessary “clear and unmistakable” language required by applicable laws and regulations, and this opinion is unambiguous. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the evidence does not show that the Veteran’s hallux valgus deformity increased in severity during service. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for a hallux valgus deformity is not warranted, including based on the theory of service aggravation of a preexisting condition. 2. Entitlement to service connection for a skin condition The Veteran contends that he developed pseudofolliculitis barbae while on active duty. The Veteran’s service treatment records (STRs) are silent for complaints or treatment for any skin condition during service. On the Veteran’s May 2006 Termination Occupational Health Medical Exam, and his separation report of medical history, he specifically denied any skin conditions, including any rashes, as well as any other illness or injury during service for which he did not seek medical care. Post service treatment records include private and VA treatment records. In an October 2007 post-deployment telemedicine visit, the Veteran denied any persistent skin rashes or lesions. At a private treatment visit in September 2015, nearly a decade following discharge, the Veteran presented with complaints of acne like bumps on his face. The condition was assessed as pseudofolliculitis barbae. He indicated that it had responded well to treatment in the past with medication, but did not attribute the onset to service, or to an in-service injury or event. There is no evidence in that treatment record that the skin condition was attributed to the Veteran’s service. In support of his claim, the Veteran submitted a lay statement from a fellow service member, W.T., who reported witnessing the Veteran’s problems with shaving while stationed in the same unit between May 2002 through May 2004. The Board has considered this evidence, but finds it to be contradicted by the contemporaneous evidence of record, including the Veteran’s own statements denying the existence of a skin disability. The Board notes that a VA examination or medical opinion has not been obtained to determine the etiology of the Veteran’s skin condition. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. §3.159(c)(4) (2018); Charles v. Principi, 16 Vet. App. 370 (2002). In this case, the Veteran has been provided a diagnosis of pseudofolliculitis barbae; however, the Board has found that there is no credible evidence suggesting that the Veteran incurred an in-service disease, or symptoms of a disease, during service. While the Veteran is competent to report symptoms of a skin condition, the Board has found the contemporaneous evidence of record to be more probative. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for a skin condition is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to an initial increased rating for PTSD The Veteran filed a claim for PTSD. The Veteran was granted service connection in the September 2016 rating decision and assigned a 30 percent rating. He filed a timely notice of disagreement with the assignment of a 30 percent disability rating, as he argued that his symptoms are worse than those contemplated by the currently assigned rating. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. §4.126(a) (2018). The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. §4.130, Diagnostic Code 9411. When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. §4.126(b). In relevant part, the rating criteria are as follows: A rating of 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing 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). A rating of 50 percent is assigned for 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-term 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. A rating of 70 percent is assigned 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 a worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is assigned for 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. At a September 2016 VA examination, the Veteran appeared alert and cooperative with good grooming and hygiene. Speech rate, rhythm and volume were noted to be normal, although he was observed to become tearful when discussing his combat experiences. He was also observed to present with an anxious mood. The Veteran denied any suicidal and/or homicidal ideations, as well as any history of hospitalizations. The examiner also checked the boxes which indicated that the Veteran suffered from loss of interest, feelings of detachment, hypervigilance, anxiety, suspiciousness, exaggerated startle responses, and impairment in concentration and sleep. The examiner concluded that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency, correlating to the assigment of a 30 percent disability rating. In a December 2017 private mental health examination, the Veteran endorsed symptoms of nightmares several times a week which resulted in interrupted sleep. He also described memories of combat experiences as well as memories of witnessing deceased fellow soldiers. He reported on-going anxiety and exaggerated startle responses to loud noises, which triggered memories of explosive devices. He described reduced motivation to engage in activities other than work, and difficulty with relationships. He relayed feelings of worthlessness and uselessness, with a preference for isolation as a coping mechanism. On examination, he presented as pleasant and cooperative. His affect was described as appropriate for the circumstances, although Dr. P.S. noted a history of anxiety and depression. Thought processes and content were normal, although the Veteran endorsed feelings of paranoia. However, he denied any suicidal or homicidal ideations. Subsequent to thorough mental testing and evaluation, Dr. P.S. reported that the Veteran performed in the low average range on testing of processing simple or routine visual material; however, he was documented to perform better with tasks requiring fine-motor skills, short-term memory, and learning ability. The Veteran’s response on the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) revealed he likely experiences depression, including sleep impairment, difficulty with concentration and attention, difficulty with decision-making, as well as overall suspicion and inability to trust others. Dr. P.S. confirmed the VA examiner’s diagnosis of PTSD, to which Dr. P.S. attributed, at a minimum, the Veteran’s difficulty with concentration and attention. In addition, she noted his emotions, including depression, and anxiety were attributable to adjustment issues. Upon review of the lay and medical evidence of record, both the symptoms and impairment reported by the Veteran and the observations and assessments by various examiners, the Board finds that a preponderance of the evidence is against a rating in excess of 30 percent. 38 C.F.R. §4.130, Diagnostic Code 9411. Together, the September 2016 VA examination, private treatment records, and Veteran’s lay statements do not indicate symptoms which were productive of occupational and social impairment with reduced reliability and productivity. There was no evidence of impaired judgment, or auditory or visual delusions. There was no evidence of obsessional rituals, neglect of personal appearance, inability to function independently, persistent impairment in thought process or content, evidence of delusions or hallucinations, or any disorientation. Although the Veteran reported impairment with relationships, it does not appear that this difficulty affected the Veteran’s occupation, as the Veteran has consistently been employed as a firefighter, with work difficulty noted only secondary to on-going knee problems. In addition, although the Veteran reported forgetting things, the Veteran’s performance in processing information, as indicated by the Processing Speed Index (PSI) revealed better performance with respect to fine-motor skills and short-term memory than those tasks requiring attention to detail and visual discrimination. Overall, the Board finds that the Veteran’s symptoms of anxiety, sleep impairment and subjective memory loss are adequately contemplated by the assignment of a 30 percent disability rating. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under §4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. Such is not shown here during the relevant period. Accordingly, a disability rating in excess of 30 percent is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. §5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Entitlement to service connection for a right foot disability The Veteran asserts that he has a right foot disability due to service. The Veteran was denied service connection on the lack of complaints, symptoms or diagnoses of a right foot disability in service. However, the Veteran’s STRs indicate that he was seen in-service with reports of ankle pain following a basketball injury. The treatment provider noted swelling to the right ankle, and valgus deviation in both feet. The Board notes the Veteran had a hallux valgus deformity of the left foot on entry, but no prior evidence of a right valgus deformity. The Board finds that an examination and opinion are warranted. Entitlement to an increased rating for a right knee disability The Veteran asserts that his right knee disability is worse than currently rated. In support of his claim, the Veteran submitted a June 2018 Disability Benefits Questionnaire (DBQ) which stated that there had been an increase in severity of the Veteran’s right knee disability. This examination also indicated that the Veteran experienced limitation of motion in his right knee, but also stated that the right knee was ankylosed. The Board notes that these two findings appear to be inconsistent as ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. As a result of this apparent inconsistency, and in light of the evidence suggesting that the Veteran’s right knee disability had increased in severity, the Board finds that a new examination is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his knee disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, schedule the Veteran for a VA knee examination to determine the current severity of the service-connected right knee status-post ACL reconstruction with hamstring autograph and medial meniscectomy with traumatic arthritis. All necessary tests should be performed and the results reported. All symptomatology attributable to the Veteran’s service connected disability should be identified. 3. Then, schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed right foot disability. The Veteran’s claims file must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified right foot disability had causal origins in service or is otherwise related to the Veteran’s active duty service. The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran’s recollection is affirmatively contradicted by the medical evidence. 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 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis