Citation Nr: 18158601 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 14-23 797 DATE: December 17, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for left great distal toe amputation is denied. Entitlement to a disability rating in excess of 10 percent for right great distal toe amputation is denied. Entitlement to an initial disability rating in excess of 70 percent for major depressive disorder (MDD) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s amputations of the distal first toes of the left and right foot did not include metatarsal involvement. 2. At no point during the appeal period has the Veteran’s MDD resulted in total occupational and social impairment. 3. The Veteran’s service-connected disabilities likely preclude him from effectively engaging in the duties of occupations for which he may be qualified. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for amputation of the left great toe have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5171. 2. The criteria for entitlement to a disability rating in excess of 10 percent for amputation right great toe have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5171. 3. The criteria for an initial rating in excess of 70 percent for MDD have not been met. 38 U.S.C. 1155, 5107; 38 C.F.R. 4.130, Diagnostic Code 9434. 4. The criteria for a TDIU have been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Right and Left Great Distal Toe Amputations The Veteran’s amputations of the distal phalanx of the right and left first toes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5171. Under Diagnostic Code 5171, amputation of the great toe with removal of metatarsal head warrants a 30 percent rating. Without metatarsal involvement, a 10 percent rating is warranted. Id. The Veteran contends that his amputations of the distal phalanx of the right and left first toes should be rated higher than the current 10 percent disabling rating. The Veteran has been rated at 10 percent disabling throughout this appeal period. The Veteran was afforded a VA examination in August 2010. During that time, the Veteran reported he has had increased pain in both feet with every other day flare-up pain that is severe and lasts all day. He stated this has interfered with his ability to work as a welder and also affected his sleeping and ability to do chores. He uses a cane and orthopedic boots. Upon physical examination, the examiner noted no observed swelling or tenderness of the stump or deformity beyond the amputation. There were no effected joints associated with the claim. The Veteran underwent an additional VA examination in March 2013. At that time, the examiner noted the Veteran has his bilateral great toes amputated distally; however, he still has full functionality of his feet. He is able to walk without limitation. During a May 2014 VA examination, the examiner noted the Veteran has a history of distal great toe amputations. The examiner specifically described the amputations as without removal of the metatarsal heads. Functional impact included pain with long periods of standing and/or walking. During a February 2017 VA examination, the examiner noted the Veteran is service connected for right and left great toe amputations. His amputations are without removal of the metatarsal heads. The examiner described the severity as mild to moderate. VA treatment records are consistent with the VA examinations of record. Upon review of the evidence of record, the Board finds that disability ratings in excess of 10 percent for amputations of the right and left great toes are not warranted. Importantly, the most probative evidence of record does not show that there was any metatarsal involvement to include removal of the metatarsal head associated with his amputations. Metatarsal involvement is necessary to warrant a higher, 30 percent rating. The most probative evidence does not show metatarsal involvement in either toe, nor does the evidence of record show symptoms that more nearly approximate amputation with metatarsal involvement in either toe. The Board acknowledges that the Veteran is competent to report pain and other symptoms he experiences, and his reported symptoms were considered in finding that a rating in excess of 10 percent is not warranted. The Veteran is not competent to state that his foot symptoms more nearly approximate amputation of the great toes with metatarsal involvement, and the evidence does not support this finding. Again, the next-higher 30 percent rating per Diagnostic Code 5171 is not warranted, as there are no objective findings of removal of metatarsal head. There are also no objective findings that would be equivalent to the amputation of the metatarsal head. Indeed, the Veteran can stand and walk, albeit with complaints of pain with prolonged weightbearing. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate residuals of a foot injury. The words marked, severe and pronounced as used in the various Diagnostic Codes are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. However, the Board concludes that a higher rating under Diagnostic Code 5284 is not warranted in this case. First, a higher or separate rating under Diagnostic Code 5284 is not warranted as its clear intent is to encompass disabilities not contemplated by the other Diagnostic Codes pertaining to the foot, as evidenced by its title of Foot injuries, other. In this case, the Veteran is service-connected for left first and second toe amputations, which clearly is fully and best contemplated within the rating criteria for Diagnostic Code 5171, which directly governs the rating of the amputation of great toes. Accordingly, the Veteran’s right and left great toes may not be rated by analogy under DC 5284, or any other diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333 (2015) (a disability rating under Diagnostic Code 5284 is inappropriate where a veteran has a diagnosed condition specifically listed in § 4.71a). In sum, the weight of the evidence is against a finding that the Veteran’s left and right great toes manifest in symptoms warranting a higher rating than 10 percent. The Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to increased ratings for amputation, right and left great toes. 2. MDD The Veteran is currently in receipt of a 70 percent rating for MDD since the January 11, 2010 date of service connection, and contends that a higher rating is warranted. The Veteran’s MDD is under the criteria of Diagnostic Code 9434, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. 4.130. Under Diagnostic Code 9434, a 70 percent rating is warranted where there is 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; 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. Id. A 100 percent rating is warranted when there is 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. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas - i.e., the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas. See Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. 4.130, DC 9400. Further, when evaluating a mental disorder, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission, and must also assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. 4.126(a). The symptoms associated with the Veteran’s psychiatric disorder have not approximated the severity and frequency associated with a 100 percent rating over the course of the appeal period, or any other symptoms of similar severity, frequency, and duration. The August 2012, March 2013, and May 2014 VA examiners specifically indicated the Veteran’s psychiatric disorder manifests as occupational and social impairment with deficiencies in most areas. The February 2017 VA examiner reported the Veteran’s psychological symptoms are manifested by occupational and social impairment with reduced reliability and productivity. The Veteran complained of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and suicidal ideation. During the May 2014 VA examination, the examiner indicated the Veteran’s thought process was linear and devoid of delusional contact. He did have some paranoid ideation although this was at the appropriate level in the context of his depressive symptoms. An additional private psychiatric evaluation dated in November 2011 also showed the Veteran reported separating from his wife and moving in with his mother. He reported becoming very irritable with no interest in socializing. Letters from friends and family substantiated that prior to the increase in pain from his physical difficulties and the loss of employment, he was happy and proud to go to work on a daily basis. The private psychologist reported the financial and marital difficulties that developed as a result of his inability to work has merely added to what was a significant depressive condition. The Veteran’s mental impairment will continue to have a major negative impact in terms of employability, despite cognitive ability that would appear to be within normal limits. He would experience significant difficulty interacting effectively with co-workers, the general public, and supervisors. The VA treatment records are consistent with the VA and private evaluations of record. The evidence of record does not reflect that the Veteran has manifested gross impairment in thought processes or communication; persistent hallucinations or delusions; grossly inappropriate behavior; disorientation to time or place; memory loss for own occupation, or own name, or other symptoms of similar severity, frequency and duration. His symptoms have not been mostly indicative of severe psychiatric symptomatology and none of his VA examiners or treatment providers has indicated that he is totally socially impaired due to service-connected disability. Moreover, the Veteran has maintained social relationships with his mother and a few friends, and is still competent to conduct his activities of daily living. The preponderance of the evidence thus reflects that the Veteran’s symptomology more closely reflects that of a 70 percent rating and not the overall level of disability associated with the total occupational and social impairment required for a 100 percent rating. 38 C.F.R. 4.130. Thus, an initial rating in excess of 70 percent for MDD is not warranted. 3. TDIU The Veteran is seeking a TDIU, which may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran is service-connected for MDD, rated 70 percent disabling; right distal great toe amputation, rated 10 percent disabling; and left dist great toe amputation, rated 10 percent disabling. His combined rating during the appeal period is 80 percent. Therefore, he meets the schedular criteria for consideration of a TDIU. The central inquiry is determining whether a TDIU is warranted is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran submitted multiple opinions regarding his employability. In a November 2011 report, a private psychologist reported the Veteran was able to work successfully for many years in steel mills; however, increasing problems with his feet resulted in his being unable to sustain the demands of the workplace and in 2007 he was terminated. The Veteran’s mental impairment will continue to have a major negative impact in terms of employability, despite cognitive ability that would appear to be within normal limits. He would experience significant difficulty interacting effectively with co-workers, the general public and supervisors. In private opinions dated in December 2011, November 2012, and April 2016, the examiners reviewed relevant documents from the claims file and found that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected major depression and right and left big toes. (Continued on the next page)   Considering the severity of his disabilities, work history, experience, and the submitted private opinions as to the Veteran’s inability to work due to his conditions, as well as resolving any doubt in favor of the Veteran, the Board finds that the combined effects of the manifestations of his service-connected disabilities are sufficiently incapacitating as to result in unemployability. As such, any doubt on this issue is resolved in favor of the claimant. See 38 C.F.R. § 5107 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU is granted, for the entire appellate period. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel