Citation Nr: 18160781 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-45 221 DATE: December 27, 2018 ORDER Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 10 percent for bilateral pes planus is denied. REMANDED Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisystem illness is remanded. Entitlement to a rating in excess of 10 percent for degenerative disease of the thoracolumbar spine is remanded. Entitlement to a rating in excess of 10 percent for left ankle degenerative joint disease is remanded. Entitlement to a rating in excess of 10 percent for right ankle degenerative joint disease is remanded. Entitlement to a compensable rating for sinusitis is remanded. Entitlement to a total disability rating due to unemployability (TDIU) prior to June 2, 2015 is remanded is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is characterized by a history of suicidal ideation but no current suicidal or homicidal ideation, depression and anxiety, chronic sleep impairment with nightmares, paranoia, impaired impulse control, poor concentration, isolative behavior and hypervigilance, but not by grossly inappropriate behavior, neglect of personal hygiene or delusions and hallucinations. 2. The Veteran’s bilateral pes planus is characterized by depressed longitudinal arches and cramping, aching pain on use. CONCLUSION OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a rating in excess of 10 percent for bilateral pes planus has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to December 1985 and from October 2009 to October 2010, with additional periods of National Guard service. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2015 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Ratings are assigned according to the manifestation of symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those in the non-exhaustive lists). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) The Veteran contends that he is entitled to a higher rating for his PTSD. The Board concludes that a rating above 70 percent is not warranted. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. For the entire period on appeal, the Veteran has been rated under Diagnostic Code (DC) 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 70 percent rating are 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 of 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, DC 9411. VA treatment records document consistent psychiatric treatment. April 2014 VA treatment records document hospitalization for suicidal ideation. The records indicate that this was the Veteran’s first psychiatric admission and that on the second day of his hospital stay, he denied suicidal ideation. The provider found that he Veteran responded well to treatment and was no longer a danger to himself or others. May 2014 VA treatment records note the April 2014 hospitalization for suicidal ideation, but found no current plan or intent and noted that the Veteran denied any history of self-injurious behavior. The provider found that the Veteran was not at risk of suicide or homicide at that time. November 2014 VA treatment records note ongoing PTSD symptoms such as nightmares but state that the Veteran was well groomed, calm and relaxed. He denied suicidal or homicidal ideation. January 2015 VA treatment records note the Veteran’s reports that his overall mental health was stable. He reported sleep difficulty and bouts of irritability. The provider noted that he was well groomed, calm and relaxed, with a pleasant, polite and friendly demeanor. His cognition and attention were found to be intact and his thoughts were found to be logical and with no thought disturbances. The Veteran denied suicidal and homicidal ideation. June 2015 VA treatment records note that the Veteran was still waking at night. The provider found that there were no psychotic symptoms, including no suicidal or homicidal ideation and a suicide screen found no further assessment or intervention needed. The provider noted that the Veteran was casually dressed, calm, alert and oriented with normal speech and logical thoughts. Additional June 2015 VA treatment records note that his mood was up and down and he was sleeping around 3-4 hours per night. He denied suicidal ideation. August 2015 VA treatment records note that the Veteran was recently married and smiling but that he still had difficulty sleeping and reported hypervigilance. July 2016 VA treatment records state that the Veteran was grieving after the death of a family member and had a sad affect, but that he was clean, alert and oriented with normal speech and goal directed thoughts. The provider found that there were no suicidal or homicidal ideations or psychotic symptoms. September 2016 VA treatment records note that the Veteran was still grieving and that his sleep was more disrupted by nightmares. The provider found that the Veteran’s affect was sad but that he was clean and cooperative with normal speech and goal-directed thoughts. The provider found that there was no evidence of psychotic symptoms. January 2017 VA treatment records note that the Veteran reported being triggered by news and television. The provider found that there were no suicidal or homicidal ideations, and no audio or visual hallucinations. The Veteran was noted to be clean, cooperative, alert and oriented, with normal speech and goal-directed thoughts. The provider found that there was no psychotic thinking and no perceived memory deficit. April 2017 VA treatment records note that the Veteran was alert and cooperative with a clean appearance, normal speech and appropriate affect. The provider found no evidence of psychotic thinking and no hallucinations and found that there was no perceived memory deficit. A December 2014 VA examination found that the Veteran had occupational and social impairment with reduced reliability. The examiner noted that the Veteran has a good relationship with his wife. The Veteran reported that he was admitted to the Biloxi VA Medical Center in April 2014 for suicidal ideation, and that he had developed a plan to overdose but never attempted suicide. The Veteran also reported paranoia, but no hallucinations or panic attacks, and problems sleeping, with nightmares 2-3 times per week. The examiner noted symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired abstract thinking, problems with motivation and mood, difficulties with work and social relationships, problems adapting to stress and impairment of impulse control. The examiner noted that the Veteran was appropriately dressed and groomed, with affect and mood within normal limits, though somewhat anxious. At a September 2015 VA examination the Veteran reported that he does not leave home unless absolutely necessary and that he has irritability, poor concentration, is hypervigilant and startles easily. The examiner noted a history of suicidal ideation but the Veteran did not report current or recent suicidal ideation. The examiner found symptoms of depression, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and problems with work and social relationships and adapting to a work setting. The examiner noted that the Veteran was well groomed and appeared tense and nervous, with blunted affect. The examiner also noted that the Veteran had a logical thought process and did not report psychosis or mania. The Veteran’s insight and judgment were noted to be intact. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent for the period on appeal. The competent evidence of record does not support the conclusion that the Veteran’s overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. That is, the competent evidence of record does not show that the Veteran experiences: 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 or memory loss for names of close relatives, own occupation or own name. The Veteran’s VA providers have consistently noted that the Veteran is clean and cooperative with normal speech and logical and goal-directed thoughts. The competent evidence also consistently indicates that the Veteran does not have psychotic symptoms such as audio or visual hallucinations. The September 2015 VA examiner found mild memory loss, but there is no indication in the record of memory loss equivalent to forgetting the names of close relatives or his own name or occupation. Regarding a persistent danger of hurting self or others, the Board acknowledges the Veteran’s history of hospitalization for suicidal ideation in April 2014 and that he had developed a plan to overdose. However, VA treatment records indicate that the April 2014 hospitalization was the Veteran’s first psychiatric admission and that he responded well to treatment and was found not to be a risk to himself or others upon discharge. Significantly, at his subsequent regular appointments for psychiatric treatments, the Veteran denied suicidal or homicidal thoughts or plans. Indeed, at the December 2014 VA examination, the Veteran reported that he had never attempted suicide and that he had no current suicidal or homicidal ideation. The Veteran also denied current or recent suicidal or homicidal ideation at the September 2015 VA examination. The Board therefore finds that while Veteran has a history of suicidal ideation, that the April 2014 was a single isolated incident which has not repeated since then and from which the Veteran has recovered. Therefore, the Board cannot conclude that the evidence supports the conclusion that he poses a persistent danger to himself or others. The Board finds that the evidence of record shows that during the period on appeal, the Veteran’s PTSD has been characterized by a history of suicidal ideation but not current suicidal or homicidal ideation, near-continuous panic or depression, chronic sleep impairment with nightmares, paranoia, impaired impulse control, poor concentration, isolative behavior and hypervigilance. These symptoms are contemplated by the 70 percent rating already assigned. The Board therefore finds that the Veteran’s overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. Indeed, a total occupational and social impairment is simply not shown by the competent evidence of record. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor. The preponderance of the evidence is against a rating in excess of 10 percent. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, a rating in excess of 70 percent for the Veteran’s PTSD is denied. 2. Entitlement to a rating in excess of 10 percent for bilateral pes planus. The Veteran contends that he is entitled to an increased rating for pes planus. The Board concludes that a rating in excess of 10 percent is not warranted. 38 C.F.R. §§ 4.7, 4.71a, DC 5276. For the entire period on appeal, the Veteran’s pes planus has been rated under DC 5276, which rates bilateral pes planus. Under the DC, a 10 percent rating is assigned for moderate pes planus, whose symptoms include a weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis and pain on manipulation and use of the feet. A 20 percent disability rating is assigned where the evidence shows objective evidence of unilateral symptoms including marked deformity (pronation, abduction, etc), accentuated pain on manipulation and use, indication of swelling on use and characteristic callosities. A 30 percent rating is assigned when such symptoms are bilateral. A 50 percent rating is assigned where the evidence shows bilateral symptoms including marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation. These symptoms must not be improved by orthopedic shoes or appliances. The Board’s review indicates that VA treatment records for the period on appeal note foot pain but are silent for treatment or evaluation of the Veteran’s bilateral pes planus. An August 2015 VA examination noted the Veteran’s complaints of aching, cramping pain in his feet, but the examiner did not complete the flatfoot portion of the examination report. An October 2015 VA examination diagnosed pes planus. The examiner noted the Veteran’s reports of cramping, aching pain and found that the Veteran had bilateral pain on use but also found that the pain was not accentuated on use. The examiner found that the Veteran had decreased longitudinal arches but no swelling or callouses. The examiner found that there was no extreme tenderness of plantar surfaces, no marked deformity, no marked pronation. The weight-bearing line was not over the medial/great toes and there was no inward bowing of the achilles or marked inward displacement. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the preponderance of the evidence is against an evaluation above 10 percent for the period on appeal. Again, to warrant a 20 percent rating under the DC, the evidence would need to show that the Veteran has severe pes planus symptoms, such as objective evidence of marked deformity, accentuated pain on manipulation and use, swelling on use or characteristic callosities. The October 2015 VA examination found no marked deformity or pronation, no swelling and no callouses. The examiner found that the Veteran had pain on use but that the pain was not accentuated on use. The evidence indicates that the Veteran has symptoms of aching, cramping pain in his feet, but the Board notes that pain on use is contemplated by the 10 percent rating already assigned. All potentially applicable DCs have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 10 percent. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, a rating in excess of 10 percent for the Veteran’s bilateral pes planus is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisystem illness is remanded. A December 2014 VA examination found that the Veteran’s sleep apnea was not due to service. The examiner found that sleep apnea was not an undiagnosed illness but a disease with a clear and specific etiology. The examiner then stated that it was not likely that the diagnosed disease was related to an exposure event in Southwest Asia. In a separate report, the examiner also opined that the Veteran’s sleep apnea was not directly related to service, stating as a rationale that there was no evidence of diagnosis or treatment while on active duty. The Board finds the opinions regarding exposures in Southwest Asia and direct service connection to be inadequate. First, the examiner did not provide a rationale for the conclusion that the Veteran’s sleep apnea was not related to the Veteran’s documented exposures in Southwest Asia. Second, the Board finds that the opinion regarding direct service connection is based on the absence of a chronic disability in service and is therefore inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Remand for a new examination is therefore required. 2. Entitlement to a rating in excess of 10 percent for degenerative disease of the thoracolumbar spine is remanded 3. Entitlement to a rating in excess of 10 percent for left ankle degenerative joint disease is remanded 4. Entitlement to a rating in excess of 10 percent for right ankle degenerative joint disease is remanded The Veteran was provided with VA spine and ankle examinations in August 2015. The reports for both examinations indicate that the Veteran declined range of motion testing as he would be in pain if it was performed. The Board notes that since the August 2015 VA examinations, the U.S. Court of Appeals for Veteran’s Claims (the Court) issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) requiring that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board notes that there is no indication in the August 2015 examination reports that the Veteran declined both active and passive range of motion testing. In order to properly rate the Veteran’s disabilities, and considering the holding in Correia regarding the requirement to conduct both active and passive range of motion testing, the Board finds that the Veteran should be afforded new examinations and given the opportunity to perform both active and passive range of motion testing. The examiner should be instructed to advise the Veteran that range of motion testing is essential to the proper rating of his spine and ankle disabilities and should be accomplished to the extent possible. 5. Entitlement to a compensable rating for sinusitis is remanded. A December 2014 VA examination diagnosed sinusitis, noted that the Veteran had not been on antibiotics in the past year and found that the Veteran had not had any incapacitating or non-incapacitating episodes of sinusitis in the prior 12 months. However, the Board notes that after that examination, August 2015 VA treatment records note an emergency room (ER) visit in July 2015 due to a sinus infection and note that he had fluid on his ear at that time and was treated with antibiotics. An October 2015 VA examination noted that the Veteran stated that he went to the ER in July 2015 for drainage that caused an ear infection. The examiner did not note the use of antibiotics or the diagnosis of a sinus infection and did not offer an opinion regarding whether that episode constituted an incapacitating or non-incapacitating episode of sinusitis. The examiner also did not indicate whether the Veteran had any incapacitating or non-incapacitating episodes of sinusitis in the prior 12 months. The examiner noted that an October 2015 CT did not show chronic sinusitis and there were no other CTs available to rule out or confirm the prior diagnosis of chronic sinusitis. The Board finds that the evidence of the July 2015 ER admission and the prescription of antibiotics indicates that the Veteran’s sinusitis may have worsened since the December 2014 examination. While a VA examination was provided in October 2015, the report does not indicate that the examiner was aware that the Veteran was prescribed antibiotics, and examiner did not provide any response regarding incapacitating or non-incapacitating episodes of sinusitis within the prior 12 months. Remand is therefore required to determine the current severity of the Veteran’s sinusitis. 6. Entitlement to a total disability rating due to unemployability (TDIU) prior to June 2, 2015 is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of increased ratings for the spine and ankle disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The Board also notes that the Veteran’s attorney filed a September 2017 Notice of Disagreement regarding this issue in which he stated that the Veteran should be entitled to TDIU effective May 7, 2014 and requested DRO review. The Board’s review indicates that the RO has not yet completed its adjudication regarding this issue and therefore it must be deferred pending that adjudication. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2016 to the Present. 2. After the above development has been completed, schedule the Veteran for an appropriate VA examination, to determine the etiology of any current sleep apnea disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current sleep apnea disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include exposures Southwest Asia. The examiner should also opine whether any such disability is linked to undiagnosed illness or medically unexplained chronic multisystem illness. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. After the development in (1) above has been completed, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his spine and bilateral ankle disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All necessary tests should be performed and all findings should be reported in detail. The examiner should identify all spine and bilateral ankle pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Please instruct the examiner to advise the Veteran that range of motion testing is essential to the proper rating of his spine and ankle disabilities and should be accomplished to the extent possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After the development in (1) above has been completed, schedule the Veteran for an appropriate VA examination to determine the current level of severity of his sinusitis. An opinion is also requested regarding whether the Veteran’s July 2015 emergency room admission constituted an incapacitating or non-incapacitating episode of sinusitis. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s sinusitis upon his ability to work. 5. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel