Citation Nr: 1806354	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  10-36 946	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for presbyopia, claimed as a vision disorder.

2. Entitlement to service connection for a sleep disorder.

3. Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for a sinus disorder, including hay fever/allergies, to include as due to exposure to environmental hazards.

5. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD).

6. Entitlement to an initial rating higher than 10 percent for plantar fasciitis of the left foot, prior to November 28, 2016, and to a rating higher than 20 percent, thereafter.

7. Entitlement to a rating higher than 10 percent for degenerative arthritis of the acromioclavicular (AC) joint of the left shoulder, from November 16, 2007 to January 5, 2008 and higher than 20 percent, from March 5, 2009.


REPRESENTATION

Veteran represented by:	Arizona Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

The Veteran had active service from December 1989 to December 1993, June 2003 to February 2004, October 2004 to January 2006, and January 2008 to March 2009.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2009 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri and North Little Rock, Arkansas. The matter is now handled by the RO in Phoenix, Arizona.   

In a September 2010 rating decision, the RO granted an increased initial evaluation of 30 percent for PTSD, an increased rating of 20 percent for his left shoulder, and an increased rating of 10 percent for the left foot, effective March 5, 2009. In February 2017, the RO granted an increased rating of 20 percent, for the Veteran's left foot, effective November 28, 2016. Despite the grant of these increased evaluations, the Veteran has not been awarded the highest possible evaluations.  As a result, he is presumed to be seeking the maximum possible evaluations.  The issues remain on appeal, as the Veteran has not indicated satisfaction with the ratings.  A.B. v. Brown, 6 Vet. App. 35 (1993).

The Veteran requested a hearing before the Board.  The requested hearing was conducted in May 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file.

The issues of entitlement to service connection for a sinus disorder and entitlement to an increased rating for the left shoulder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In May 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal to reopen a previously denied claim for entitlement to service connection for presbyopia, claimed as a vision disorder, on the basis of new and material evidence, was requested.

2. In May 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to service connection for a sleep disorder was requested.

3. Bilateral hearing loss was noted on the Veteran's September 1989 enlistment examination report.

4. The Veteran's pre-existing bilateral hearing loss was not aggravated during service.

5. The Veteran's PTSD is not manifested by symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity.

6. Prior to November 28, 2016, the Veteran's plantar fasciitis of the left foot was not manifested by symptoms that more nearly approximate a severe severity.

7. From November 28, 2016, the Veteran's plantar fasciitis of the left foot is not manifested by symptoms that more nearly approximate a pronounced severity.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal to reopen a previously denied claim for entitlement to service connection for presbyopia, claimed as a vision disorder, on the basis of new and material evidence, by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for withdrawal of the appeal for entitlement to service connection for a sleep disorder by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017).

3. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.306 (2017).

4. The criteria for an initial rating higher than 30 percent for PTSD have not been met. 38 U.S.C. §§1110, 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017).

5. Prior to November 28, 2016, the criteria for an initial rating higher than 10 percent for plantar fasciitis of the left foot have not been met. 38 U.S.C. §§ 1110, 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5020, 5276 (2017).

6. From November 28, 2016, the criteria for a rating higher than 20 percent for plantar fasciitis of the left foot have not been met. 38 U.S.C. §§ 1110, 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5020, 5276 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). 

Adequate notice pertaining to the Veteran's claims was satisfied by letters provided to the Veteran in March 2009. The duty to notify has been fulfilled.

The duty to assist has also been met, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA treatment records, and private treatment records. The Veteran was afforded VA examinations.

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judge in May 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.

II. Withdrawn Claims

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). 

Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. 

In the present case, in a May 2017 statement, the Veteran withdrew the petition to reopen his previously denied claim for entitlement to service connection for presbyopia, and the issue of entitlement to service connection for a sleep disorder. See May 2017 statement.

Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed.

III. Entitlement to Service Connection for Bilateral Hearing Loss

The Veteran asserts his bilateral hearing loss is due to service.




Applicable Laws

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of the 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 such service. 38 U.S.C. 1111; 38 C.F.R. § 3.304 (b); see also VAOPGCPREC 3-03; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability of which the Veteran later complains. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304 (b).

For service connection claims involving a preexisting injury or disease, 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.

If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, § 1153 applies and the burden falls on the Veteran to establish an increase in disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 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 C.F.R. § 3.306 (b). 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002).

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

 "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). 

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157.

Facts & Analysis

Importantly, the Veteran's service treatment records are significant for findings of bilateral hearing loss. Specifically, the Veteran's September 1989 enlistment examination shows that he had significant right ear hearing loss at 3000 Hertz, 4000 Hertz (40) and 6000 Hertz and in the left ear at 4000 Hertz (40) and 6000 Hertz, upon entry to service. Thus, the presumption of soundness does not apply, and as noted above, the Veteran may only bring a claim of aggravation of the disorder. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). The burden falls on the Veteran to establish an increase in disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

In this case, the most probative evidence of record shows that the Veteran's preexisting bilateral hearing loss did not increase in disability during his active service. As noted, the Veteran entered into service with bilateral hearing loss. The Veteran was on a profile for hearing loss and was not to be exposed to noise in excess of 85 decibels or weapons firing without use of properly fitted hearing protection. See May 2003 Physical Profile. Importantly, however, the preponderance of evidence indicates the Veteran's bilateral hearing loss did not undergo an increase in severity during service. After examination in April 2009, the VA examiner opined in October 2009 that the Veteran's pre-existing hearing loss was not further aggravated during any of his active duty military service. The examiner indicated that a review of military audiograms do not show any significant decreases in hearing during any of the active duty time periods. There are no medical opinions to the contrary, of record.

As such, the Board finds that the evidence overall demonstrates that there was no increase in severity of the Veteran's bilateral hearing loss during service. The Veteran has not met his burden of showing aggravation. The preponderance of the evidence of record discussed above shows that his pre-existing bilateral hearing loss was not aggravated during service. Thus, because this disability pre-existed active service and was not aggravated during that time, it is not service connected. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

While the Veteran contends that his bilateral hearing loss is due to his active service, there is no indication that the Veteran has specialized training in hearing loss. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the preponderance of evidence is against the claim and indicates the Veteran's bilateral hearing loss was not aggravated during service. The Board finds the medical opinion of record to be more probative than the Veteran's lay assertions as to the etiology and severity of the Veteran's bilateral hearing loss. 

In this regard, the VA examiner reviewed the claims file and considered the Veteran's service treatment records. Thereafter, the examiner provided adequate reasoning and bases for the opinion that the Veteran's military service did not aggravate his bilateral hearing loss. For these reasons, the opinion by the VA examiner is of greater probative value than the Veteran's contentions regarding his bilateral hearing loss. 

In sum, the Board finds that the most probative evidence establishes that the Veteran's bilateral hearing loss existed prior to his entry into service, was noted on his enlistment examination, and did not increase in disability during service. Accordingly, service connection for the Veteran's bilateral hearing loss is not warranted.

IV. Increased Ratings

The Veteran seeks entitlement to increased ratings for his PTSD and left foot disability.

Disability ratings are based on 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability

A. PTSD

Service connection for PTSD was established by a September 2009 rating decision, at which time a 10 percent rating was assigned, effective March 2009. In a September 2010 rating decision, the Veteran was granted an increased rating of 30 percent, effective March 2009. The Veteran seeks entitlement to an initial higher rating.

The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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 particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the diagnostic codes. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders. 

The Veteran is rated as 30 percent disabled under 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 30 percent is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 

A rating of 50 percent is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. Id.  

A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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; and the inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is warranted 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. Id.

A global assessment of functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996).

The Veteran was afforded a VA examination in March 2009. The Veteran reported his primary problems included disturbing dreams, sleeping problems and that he did not like driving in traffic or being around a lot of people. He described significant anxiety when around large groups of people. The Veteran was able to complete activities of daily living with no assistance. He reported that for social activities he enjoyed playing baseball or other sports and watching his two boys. It was noted he has 9-year-old and 11-year-old sons and has been married for twenty-five years. The examiner reported the Veteran was casually groomed and cooperative. The Veteran's eye contact was fair; speech was within normal limits with regard to rate and rhythm. The Veteran's mood was slightly anxious but affect was appropriate to content. Thought processes and associations were logical and tight with no loosening of association or confusion noted. The Veteran was oriented in all spheres and there was no evidence of delusions or hallucinations. Insight and judgment were deemed fair. The Veteran denied suicidal or homicidal ideations. He was assigned a GAF score of 61, indicating mild symptoms. The examiner stated that the severity of the Veteran's symptoms was deemed fairly mild and they have persisted for a number of years. Concluding, the examiner stated that the Veteran's PTSD symptoms did not preclude gainful employment and they did not have a significant impact on his social functioning or behavior; there was no impairment in thought processes or communication noted.

The Veteran sought treatment from the VA in April 2009. He reported having insomnia, nightmares and feeling constantly on guard, with feelings of guilt. He denied suicidal or homicidal ideations.

The Veteran underwent a mental health assessment at the VA in September 2009. He reported problems sleeping and nightmares. He also reported intrusive thoughts, flashbacks, hypervigilance, a sense of estrangement from others, irritability, depression and panic attacks approximately once a week. He indicated that the panic attacks do not limit his activities. The physician stated the Veteran had good eye contact, mood was generally euthymic, but was at times depressed. His affect was appropriate; however, at times he appeared on the verge of tears. He was alert and oriented to person, time, and place. A GAF score of 51 was assigned, indicating moderate symptoms.

VA treatment records indicate the Veteran received weekly individual therapy sessions for PTSD in 2009 and 2010.

A June 2011 VA treatment note states the Veteran reported having nightmares twice a week due to his PTSD; however, he declined treatment.

An April 2013 VA treatment note indicates the Veteran was not interested in antidepressants or counseling at the time. 

A June 2014 VA treatment note indicated the Veteran sought treatment for PTSD symptoms, including irritability and anger. It was noted he was last seen for PTSD treatment in 2011. The social worker noted that the Veteran continues to experience nightmares 3 times weekly and does not sleep well. The Veteran stated he avoids crowds and does not trust civilians. His wife does the shopping for the family so he does not have to interact in public places. The Veteran described feeling overwhelmed by anger at times, and that he mostly keeps his anger to himself but sometimes "snaps" verbally. He reported taking time for himself to cool off. Examination revealed the Veteran was alert, oriented and was adequately cooperative. Mood was anxious, and affect was appropriate. The social worker indicated that the Veteran continued to experience overwhelming anger, poor sleep, nightmares, and distrust of civilians due to his PTSD.

A February 2015 VA treatment note indicated the Veteran reported tiredness, irritability and depression. The Veteran stated he was hypervigilant, had poor sleep (4 hours, interrupted), irritability/on edge, poor concentration/focus at times, disinterest in things, feeling down, occasional nightmares, and avoided thoughts/reminders of military experiences. He reported becoming irritated easily at work; he had not acted out physically with his anger though and wanted to prevent that from happening. He stated he walks away from situations when he feels his anger building and this is helpful. The Veteran was alert and oriented and was adequately cooperative. Mood was irritable. Affect was mildly anxious, overall congruent, with no gross disruption of thought process/content or behavior. Judgment and insight appeared fair to good. The Veteran denied either suicidal or homicidal ideation or plans/intentions of same.

The Veteran was afforded a VA examination in November 2016. The Veteran reported that he is presently married to his wife 33 years (only marriage), and reported having two sons (ages 19 and 16) together. He described his relationship with his wife as "good," and with his sons as "pretty good." He reported that his youngest resides with them, and his oldest is attending college. The Veteran reported maintaining regular contact with his parents and siblings. He reported last visiting his family a few weeks ago, and reported visiting them annually on average. He described having good relationships with his family. The Veteran described the quality of peer relationships as "limited, we don't hang out with a lot of people." He indicated maintaining contact with "a couple (childhood) friends back home every once in a while," and reported regular socializing with a mutual friend he and his wife share. The Veteran reported that he is presently employed full-time. The examiner stated the Veteran's mental status examination was normal. He had appropriate hygiene. Mood was euthymic and affect was full and appropriate. Thought processes were normal, logical and goal directed. Insight and judgement were good. It was noted that the Veteran was able to manage his symptoms without mental health care since 2011. The Veteran reported current symptoms as occasional irritability, which had diminished in frequency and intensity over the years, to approximately once a week. He also reported hypervigilance and poor sleep. The examiner stated that based on the comprehensive psychological evaluation, the Veteran's PTSD symptoms have evolved over time and have diminished in frequency and intensity to the point that most have resolved to date. Continuing, the examiner explained that although the Veteran reported some mild, subclinical symptoms (i.e., irritability, hypervigilance), these symptoms do not result in significant functional impairment or distress. The examiner stated that the Veteran has evidenced positive psychological resilience in that he has been able to maintain full-time employment; attend college classes successfully; maintains healthy marriage/relationships; and enjoys leisure and social activities in spite of residual symptoms. Concluding, the examiner stated that overall, the Veteran's mental status is assessed to be stable and does not impair his social and occupational functioning to the extent of being clinically significant.

The Veteran testified in May 2017 that he feels disconnected from his family, experiences sleeping difficulties including nightmares and increased irritability. The Veteran asserts his symptoms are more severe than what is represented by 30 percent.  The Board also notes that the Veteran asserted during the May 2017 hearing that his PTSD has become worse since his last VA examination in November 2016. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination may be appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995). Here, however, the Board finds that a review of the medical evidence of record subsequent to the latest VA examination in November 2016 reveals that there is no objective evidence showing that his PTSD has increased in severity since the most recent VA examination in 2016. Therefore, the Board finds that a new VA examination for PTSD is not warranted at this time.

The evidence does not show that overall the Veteran's PTSD is productive of symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity to warrant a rating of 50 percent. Despite the Veteran's reports of trouble sleeping, irritability, hypervigilance and feelings of disconnect, the evidence under consideration consistently showed that the Veteran was oriented in all spheres, was clean, appropriately groomed and dressed, had appropriate affect, normal speech, and intact judgment. He had no impairment in abstract thinking or suicidal ideation. Moreover, although he indicated he had difficulty with crowds and tended to avoid people, overall, he was able to establish and maintain effective social and occupational relationships. During the May 2017 Hearing, the Veteran indicated that he was working, and he related to his coworkers better than the public because they were disabled Veterans. He is able to maintain his social relationships, as evidenced by his long-term marriage and relationships with his family, children, and a few friends. 

The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the types and severity of symptoms that indicate a certain level of disability. The Board believes that based on the overall record evidence, including the Veteran's lay statements, the frequency, duration, and severity of the Veteran's PTSD symptoms are most consistent with the currently assigned 30 percent rating.

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

B. Left Foot

Service connection for plantar fasciitis of the left foot was established by a September 2009 rating decision, at which time a noncompensable rating was assigned, effective March 2009.  Service connection was established based on evidence the Veteran injured his left heel in service.  An x-ray revealed a heel spur.  The Veteran disagreed with the rating assigned in an October 2009 statement. In a September 2010 rating decision, the Veteran was granted an increased rating of 10 percent, effective March 2009. In a February 2017 rating decision, the Veteran was granted an increased rating of 20 percent, effective November 28, 2016. The Veteran continues to seek a higher rating.

He is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5020-5276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the diagnostic code assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2017). In this case, the rating schedule does not provide a specific diagnostic code for plantar fasciitis, so the Veteran's left foot plantar fasciitis has been rated analogously under Diagnostic Code 5276 for acquired flatfoot. Additionally, Diagnostic Code 5020 has been hyphenated with Diagnostic Code 5276 to evaluate the Veteran's synovitis. Of note, synovitis is to be rated on limitation of motion of the affected part.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 10 percent rating is warranted for moderate pes planus, either unilateral or bilateral, characterized by weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 20 percent rating is warranted for severe unilateral pes planus, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 30 percent rating is warranted for pronounced unilateral pes planus, characterized by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276.

Under Diagnostic Code 5284, moderate residuals of a foot injury warrant a 10 percent evaluation; moderately severe residuals warrant a 20 percent evaluation; and severe residuals warrant a 30 percent evaluation.  38 C.F.R. § 4.71a , Diagnostic Code 5284.

The words "slight," "moderate," "severe," and "pronounced," as used in the various codes are not defined in the VA Schedule for Rating Disabilities. 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. The use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.




Prior to November 28, 2016

Prior to November 28, 2016, the Veteran is rated as 10 percent disabled for his left foot.

The Veteran was afforded a VA examination in March 2009. The Veteran reported he has pain in the left foot, especially when he first gets up and walks in the morning. He indicated the pain becomes less with activity, but occurs off and on during the day. In addition, if he sits for a while, when he gets up to walk again he will have pain in that area. Physical examination of the left foot revealed a normal arch, which did not flatten significantly with weightbearing. He did not have tenderness to pressure over the plantar surface of the heel, arch, or forefoot, but had pain with weightbearing. He had normal weightbearing except that he was slightly hesitant to put full weight on the left heel. He had a normal gait. There was no abnormality of the Achilles tendon tracking, no tenderness or pain in the Achilles tendon or attachment with dorsiflexion or plantar flexion against resistance.

Based on a careful review of all of the evidence, the Board finds that the Veteran's service-connected plantar fasciitis of the left foot was manifested by pain on use of the foot, prior to November 28, 2016.  The disability did not more nearly approximate impairment contemplated by a higher rating.  There was no objective evidence of swelling, inflammation or loss of motion during the March 2009 VA examination or in the VA treatment records. The Veteran's gait was noted to be normal and while there was pain with weightbearing, there was no tenderness to pressure over the plantar surface of the heel, arch, or forefoot. Thus, the Board finds that the Veteran's plantar fasciitis of the left foot warrants no more than the currently assigned 10 percent rating, prior to November 28, 2016.

The Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the medical professionals who have examined him. The overall medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).

In reaching this conclusion for Diagnostic Code 5276, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran's complaints of pain on use. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). These complaints are well documented in the lay statements submitted and were considered in the assignment of the 10 percent rating for this period. However, even considering the Veteran's pain and limitation of function, there is no persuasive evidence that the Veteran's disability warrants a rating higher than 10 percent, prior to November 28, 2016.

The Board recognizes the limitations that the Veteran has as a result of his service-connected left foot plantar fasciitis. However, these limitations, including the Veteran's pain and interference with standing and walking, have been considered in the 10 percent rating assigned.

From November 28, 2016

The Veteran was afforded a VA examination in November 2016. The Veteran reported daily left foot pain from the arch to heel. He stated he had increased heel pain and arch tightness with standing or walking in about twenty to thirty minutes. He did not report any flare-ups. The examiner stated that the Veteran had accentuated pain on use, and pain on manipulation. There was also swelling on use and characteristic callouses. The examiner stated that the Veteran tried arch supports, but they did not relieve his symptoms. He did not have extreme tenderness of plantar surfaces or evidence of marked deformity, marked pronation, or inward bowing of the Achilles tendon. The Veteran had decreased longitudinal arch height on weight bearing. The examiner stated that the Veteran's foot injury was moderate in severity. The Veteran had pain on nonweight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The Veteran was noted to have increased pain with standing or walking over 20 minutes.

X-rays taken at the VA in December 2016 demonstrated degenerative joint disease, bunions, plantar/calcaneal spurs and Achilles enthosophytes. In January 2017, the Veteran complained of foot pain at the VA. In February 2017, the Veteran sought treatment at the VA for foot pain. It was noted that he was currently wearing slip on shoes with gel inserts. X-rays demonstrated a large plantar calcaneal spur.

The Veteran testified in May 2017 that he experiences foot swelling and pain, and that his symptoms have not been relieved by orthotics. The Board notes that the Veteran asserted during the May 2017 hearing that his foot has become worse since his last VA examination in November 2016. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination may be appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995). Here, however, the Veteran indicated that his foot had increased in disability level, but did not indicate how it had worsened since the last VA examination, other than swelling, pain on use and the fact that orthotics did not improve his condition. The last examination report from 2016 was thorough and consistent with the Veteran's statements as to the symptoms and impairment he experiences. Furthermore, the Board finds that a review of the medical evidence of record subsequent to the latest VA examination in November 2016 reveals that there is no objective evidence showing that the left foot disability has increased in severity since the most recent VA examination in 2016. Therefore, the Board finds that a new VA examination for the left foot disability is not warranted at this time.

Based on a careful review of all of the evidence, the Board finds that the Veteran's service-connected plantar fasciitis of the left foot does not more nearly approximate impairment contemplated by the next higher rating from November 28, 2016.  While the Veteran contends that his symptoms are not relieved by orthotics, he still utilizes alternative appliances (gel inserts).  Crucially, the November 2016 VA examiner specifically noted that there was no extreme tenderness of the plantar surfaces of the feet and there was no marked inward displacement and severe spasm of the tendoachilles on manipulation.  In the expert opinion of the VA examiner, he found that the overall severity of the Veteran's foot disability was moderate.  Thus, the Board finds that the Veteran's plantar fasciitis of the left foot does not more nearly approximate the criteria for a rating higher than 20 percent, from November 28, 2016.  Moreover, while some symptomatology noted with the Veteran's foot disability meets the criteria associated with a severe rating under Diagnostic Code 5276, this does not automatically entitle the Veteran to a severe rating under Diagnostic Code 5284 because a severe disability under Diagnostic Code 5276 is not equivalent to a severe disability under Diagnostic Code 5284.  Prokarym v. McDonald, 27 Vet. App. 307 (2015).  Again, in the expert opinion of the VA examiner, he found that the overall severity of the Veteran's foot disability was moderate.  

The Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the medical professionals who have examined him. The overall medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).

In reaching this conclusion for Diagnostic Code 5276, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran's complaints of pain on use. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). These complaints are well documented in the lay statements submitted and were considered in the assignment of the 20 percent rating for this period. However, even considering the Veteran's pain, swelling, and limitation of function, there is no persuasive evidence that the Veteran's disability warrants a rating higher than 20 percent, from November 28, 2016.

The Board recognizes the limitations that the Veteran has as a result of his service-connected left foot plantar fasciitis. However, these limitations, including the Veteran's pain and interference with standing and walking, have been considered in the 20 percent rating assigned, from November 28, 2016. 

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

The petition to reopen a previously denied claim for entitlement to service connection for presbyopia, claimed as a vision disorder, on the basis of new and material evidence, is dismissed.

The appeal of entitlement to service connection for a sleep disorder is dismissed.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to an initial rating higher than 30 percent for PTSD is denied.

Prior to November 28, 2016, entitlement to an initial rating higher than 10 percent for plantar fasciitis of the left foot is denied.

From November 28, 2016, entitlement to a rating higher than 20 percent for plantar fasciitis of the left foot is denied. 




REMAND

The Veteran seeks entitlement to service connection for a sinus disorder and entitlement to an increased rating for his left shoulder disability.

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 

Sinus Disorder

The Veteran asserts his current sinus disorder is due to service. He testified in May 2017 that he experienced bloody noses approximately twice a week while in Iraq, which he did not seek treatment for and attributed to being in the sun and sand. The Veteran's September 1989 Report of Medical History for enlistment to active duty indicates he reported nasal congestion due to pollen. The examination did not note any sinus abnormalities. Service treatment records indicate the Veteran complained of hay fever in a February 1998 Report of Medical History, prior to an active service period, and the examiner noted that the Veteran had seasonal hay fever and he took over the counter medication for treatment. The February 1998 examination, however, did not indicate any sinus abnormalities. Similarly, in a April 2003 Report of Medical History, prior to an active service period, the Veteran reported having hay fever and was noted to have seasonal allergies. The Veteran's January 2006 separation Report of Medical History notes that he was exposed to pesticides, smoke from burning trash, sand and dust.

Post service, the Veteran has been diagnosed with chronic sinusitis. See March 2009 VA examination. Additionally, VA treatment records indicate the Veteran is diagnosed with allergies and takes medication daily. See August Problem List and Active Outpatient Medication List. Although the Veteran was afforded a VA examination in March 2009, no medical opinion was provided. On remand, a medical opinion should obtained.


Left Shoulder

The Veteran was afforded a VA examination for his left shoulder in November 2016. The examiner stated that pain was noted on examination and caused functional loss on flexion, abduction, external rotation and internal rotation, however, the degree at which pain occurred was not noted in the examination report.

VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 

Therefore, on remand, the Veteran should be afforded an examination for his left shoulder that includes the degree at which pain occurs during range of motion tests. These findings are necessary to adequately rate the Veteran's disability according to DeLuca. Id.  

Additionally, while the November 2016 VA examination report contains testing results pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the new VA examination should also include these testing results. As such, pursuant to Correia, the new VA examination must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and ask that he identify the provider(s) of any and all evaluations and/or treatment he has received for the disorders remaining on appeal and to provide authorizations for VA to obtain records of any such private treatment.  Obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already associated with the record) from the provider identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to VA's request for identified records sought, the Veteran must be notified and reminded that ultimately it is his responsibility to ensure that private treatment records are received.

2. After instruction (1) is completed, obtain a VA medical opinion for the Veteran's claimed sinus disorder. If deemed necessary by the examiner, afford the Veteran a VA examination for his claimed sinus disorder. The examiner is requested to review all pertinent records associated with the claims file. 

a) After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether the evidence clearly and unmistakably shows (i.e., it is undebatable) that the Veteran's current sinus disorder, to include hay fever/allergies, existed prior to active service. 

b) If the answer to a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing disorder was not aggravated by service, to include exposure to environmental hazards, or that any increase in disability was due to the natural progression of the disorder?

The examiner must consider the Veteran's lay statements regarding his symptoms of nosebleeds in service. Whether these statements make sense from a medical point-of-view must be considered and discussed in the opinion.

c) If the answer to a) is no, then answer the following: Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed sinus disorder, to include hay fever/allergies, had its onset in service or is otherwise attributable to service, to include exposure to environmental hazards? 

d) The examiner must offer comments and an opinion on the theory that the climate of Iraq, and documented exposure to pesticides and smoke from burning trash caused his current sinus disorder.

All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed.

3. After instruction (1) is completed, schedule the Veteran for a VA examination to ascertain the severity of his left shoulder disability. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail, to include range of motion testing, and the degree at which pain occurs.

(a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for both shoulders on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the shoulder cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. 

(b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 

In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. 

4. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate his claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto.

5. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs