Citation Nr: 1813286 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 11-23 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hyperlipidemia, to include as secondary to service-connected PTSD and/or pes planus. 2. Whether new and material evidence has been received to reopen a claim of service connection for hypertension (HTN), to include as secondary to service- connected PTSD and/or pes planus. 3. Entitlement to increases in the (30 percent prior to March 21, 2016, and 50 percent from that date) staged ratings assigned for posttraumatic stress disorder (PTSD). 4. Entitlement to increases in the (0 percent prior to March 21, 2016 and 30 percent from that date) staged ratings assigned for pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1978 to December 1978 and from May 2003 to December 2003 and from July 2005 to October 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2009 (that continued a 30 percent rating for PTSD) and a March 2010 rating decision (that denied service connection for hyperlipidemia, and HTN, and continued a 0 percent rating for pes planus) by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). An April 2017 rating decision increased the ratings for PTSD (to 50 percent) and for pes planus (to 30 percent), both effective March 21, 2016. FINDINGS OF FACT 1. Hyperlipidemia is a laboratory finding and of itself not a compensable disability. 2. An unappealed June 2008 rating decision denied service connection for hypertension essentially on the bases that it pre-existed, and was not aggravated by, his active duty service. 3. Evidence received since June 2008 does not show a worsening of the Veteran's HTN during service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for HTN; and does not raise a reasonable possibility of substantiating the claim. 4. The Veteran's PTSD is reasonably shown to have been manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity; throughout the period under consideration; it is not shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas at any time under consideration. 5. The Veteran's bilateral pes planus is reasonably shown to throughout prior to March 21, 2016 have been moderate, but not severe; from that date, the pes planus is not shown to have been more than severe, pronounced pes planus is not shown. CONCLUSIONS OF LAW 1. Service connection for hyperlipidemia is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. New and material evidence has not been received, and the claim of service connection for HTN may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The Veteran's PTSD warrants a 50 percent (but no higher) rating throughout from May 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.125, 4.129, 4.130, Diagnostic Code (Code) 9411 (2017). 4. The Veteran's pes planus warrants staged ratings of [an increased] 10 percent (but no higher) prior to March 21, 2016, and no higher than 30 percent from that date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by a letter in February 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records (STRs) are associated with his record, and VA has obtained all pertinent postservice (private and VA) treatment records he identified. He was afforded VA examinations in March 2008, March 2010, March 2016, and March 2017. A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active duty service (which includes periods of ACDUTRA when disability was incurred). 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.6(a), 3.303. To substantiate a claim of service connection, there must be evidence of: (i) a current disability (for which service connection is claimed); (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned for different periods of time based on facts found where the disability fluctuated in severity during the evaluation period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Service Connection for Hyperlipidemia The Veteran has claimed service connection for hyperlipidemia on a direct service connection basis (as incurred in service) and alternatively as secondary to his service-connected PTSD and service-connected pes planus. Hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc." See Dorland's Illustrated Medical Dictionary 891 (32nd ed. 2012). Hyperlipidemia is a laboratory finding and is not, of itself, a disability (due to disease or injury) for which VA compensation benefits are payable. See 61 Fed. Reg. 20, 440, 20, 445 (May 7, 1996). Consequently, although diagnostic studies show the elevated blood lipid findings the Veteran seeks to have service connected, they do not, of themselves, constitute a compensable disability. Accordingly, the threshold legal requirement for substantiating a claim of service connection (evidence of a current disability) is not met, and the appeal in this matter must be denied. New and Material Evidence for HTN A June 2008 rating decision denied the Veteran service connection for HTN on the bases that such disability pre-existed his active duty service and was not worsened during or as a result of, service. He did not appeal that decision, and it became final. 38 C.F.R. § 7105. Evidence of record at the time of the June 2008 rating decision included a clinical notation that the Veteran began receiving treatment for hypertension in 1995, a May 1999 report of medical examination which shows a blood pressure reading of 140/90 (rechecked after an hour and found to be 134/99), a November 2003 report of medical assessment when it was noted that the Veteran was on blood pressure medication, and a May 2006 STR which notes a history of HTN and a blood pressure reading of 137/87. Evidence received since the June 2008 rating decision includes records of treatment for HTN. In July 2008 the Veteran's HTN was noted to be fairly controlled (in May 2008 it was described as well controlled). A February 2009 treatment record notes Lisinopril was prescribed for HTN. A March 2009 follow up appointment record notes HTN was at goal with no side effects from Lisinopril. In September 2010 correspondence the Veteran alleged a worsening of his HTN during service. On March 2017 VA examination HTN was diagnosed. The provider opined that it was less likely than not that the HTN was due to or the result of the Veteran's service connected disabilities (PTSD and pes planus) as HTN is due to cardiac pathology, nephropathy, dietary association, or genetics and there is no specific documented evidence suggestive of pharmacotherapeutic etiology. As service connection for HTN was previously denied on the basis that such disability pre-existed, and was not aggravated by, service, for additional evidence received thereafter to pertain to an unestablished fact necessary to substantiate the claim (and be new and material), warranting reopening of the claim, it would have to show that either the Veteran's HTN did not pre-exist service or that it was aggravated by service (or has been aggravated by service connected PTSD or pes planus). Records showing ongoing treatment for HTN (which do not bear on these factors) are cumulative, and not new evidence. While the additional evidence received shows that the Veteran has a history of treatment for HTN (both before and after June 2008) it does not show that the Veteran's HTN did not pre-exist his periods of active duty service from May 2003 to December 2003 and from July 2005 to October 2006, or that it increased in severity beyond its natural progression during either period. It also does not show/tend to show that any increase in severity of HTN since (as suggested by notations of changes in medication) is due to the Veteran's service-connected PTSD or pes planus. The Board notes the Veteran's own statements alleging his HTN is due to his service connected disabilities. However, he is a layperson, and opinion that his HTN has been worsened by his service or his service connected disabilities (to include by medication prescribed for the disabilities) is not competent evidence in the matter (particularly in the face of medical evidence, including physical examination and medical opinions to the effect that his HTN has not worsened beyond its natural progression). Whether or not the HTN was aggravated by a service connected disability is a medical question incapable of lay observation (and not in the realm of common knowledge). The only medical evidence of record that directly addresses whether or not the HTN is secondary to the service connected PTSD and pes planus is in the report of a March 2017 VA examination where the consulting provider opined that it was less likely than not that the Veteran's HTN was due to his treatment for PTSD or pes planus. The opinion invokes medical principles (noting the factors that do contribute to HTN and that they do not include the Veteran's medications for his service-connected disabilities), and the opinion is probative evidence in this matter. As there is no competent (medical) evidence to the contrary it is persuasive. As the only competent and material (pertaining to a nexus between the Veteran's hypertension and his service or his service-connected disabilities) evidence since the last final decision in this matter does not support/is against this claim, the Veteran has not presented evidence that pertains (favorably) to an unestablished fact necessary to substantiate the claim of service connection for HTN and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received; and that the claim of service connection for HTN may not be reopened. Increased Ratings for PTSD PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provide for a 100 percent rating 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. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 50 percent rating is warranted if 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. The instant claim for increase was received in May 2009. Accordingly, the period for consideration begins one year prior, in May 2008. On March 27, 2008 VA PTSD examination the examiner described the Veteran's level of impairment as "moderate social and occupational impairment due to PTSD." The consulting provider concluded that there was not total and occupational and social impairment due to PTSD. It was noted that he showed reduced reliability and productivity due to PTSD. On examination it was noted that he had good quality peer relationships and social interactions. Psychological examination showed slow speech, and normal affect with depressed mood. Remote and recent memories were both found to be normal. PTSD symptoms noted included recurrent and intrusive distressing recollections of the event, efforts to avoid thoughts, feelings, or conversations associated with the trauma, marked diminished interest or participation in significant activities, and feeling of detachment or estrangement from others. His PTSD related problems in occupational functioning were noted to be decreased concentration. A September 2008 mental health treatment record notes that the Veteran was seen for a follow up on PTSD with complaints of depression, anxiety, flashbacks, anger, and irritability. The Veteran reported that returning to citalopram had been helpful with relaxation. The provider noted that the Veteran was retired from the National Guard, married, and gainfully employed. In May 2009 a mental health nurse practitioner noted the Veteran was seen for a follow up related to depression, anxiety, flashbacks, anger and irritability. He reported being easily irritated and requested an increase in the citalopram. It was noted that he was married and gainfully employed. In November 2009 correspondence the Veteran stated that he felt his PTSD symptoms were getting worse. A December 2009 treatment record notes that he was seen for PTSD follow up and medication management. He reported arguing a lot with his family and having confrontations on the job, and denied suicidal or homicidal ideas. A December 2009 treatment record notes that he reported being upset about daily stressors, and reported that he started drinking. Citalopram was to be increased to help with exacerbation of symptoms. An April 2011 treatment record notes the Veteran had complaints of depression, anxiety, flashbacks, anger, and irritability. He stated that he experienced nightmares and woke up with sweaty palms. A November 2012 treatment record notes the Veteran was seen for complaints of depression, anxiety, flashbacks, anger, and irritability. He stated that he avoids people and cannot deal with crowds. He stated that he had been sleeping, but had some nightmares and night sweats; he denied homicidal or suicidal ideation, and alcohol or illicit drug use. On March 2013 follow up appointment for PTSD the Veteran was described as alert and oriented, fairly groomed and dressed with intermittent eye contact. His speech was logical and goal oriented. Attention and concentration were appropriate, and judgment and insight were intact. His affect was described as mildly constricted and mood mildly depressed. A July 2013 treatment record notes the Veteran was seen for a follow up for PTSD. He had complaints of depression, anxiety, flashbacks, anger, and irritability. He reported that he was still experiencing mood swings, and flashbacks. In November 2013 he was seen for follow up for PTSD. He had complaints of depression, anxiety, flashbacks, anger and irritability. On March 21, 2016 VA PTSD examination the examiner noted a diagnosis of moderate chronic PTSD. The examiner noted that the pattern of performance on examination was unusual even for persons with moderately severe dementia, and was inconsistent with the Veteran's wife's reports of his daily functioning (drives himself to work, and works full time). It was noted that he had sleep disturbances, but no loss of memory. His recorded symptoms included recurrent and distressing recollections of the event, and acting or feeling as though the traumatic even were recurring. The examiner noted that there was occupational and social impairment with reduced reliability and productivity without total occupational and social impairment due to PTSD. The Veteran was shown to have depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty understanding complex commands, impaired abstract thinking, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships. In June 2017 correspondence the Veteran's representative asserted that the Veteran's disability picture more closely approximated a 50 percent rating. [Such rating has been granted from the March 21, 2016 VA examination.] Initially for consideration is whether a rating in excess of 30 percent for PTSD is warranted prior to March 21, 2016. A March 2008 VA examiner specifically found reduced reliability and production, and the record does not reflect any significant improvement since. Accordingly, a 50 percent rating is warranted for the PTSD throughout the period under consideration. The analysis turns to whether a rating in excess of 50 percent is warranted for any period of time under consideration. At no time during the evaluation period is the Veteran's occupational and social impairment shown to have resulted in deficiencies in most areas. His examination reports and treatment records show he was married, gainfully employed, and tended to activities of daily living. Therefore, a rating in excess of 50 percent is not warranted. Increased Ratings for Pes Planus Pes Planus is rated under Code 5276, which provides for a 0 percent rating when the pes planus is mild; a 10 percent rating where pes planus is moderate whether unilateral or bilateral, with the weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, and pain on manipulation and use of the feet; a 30 percent rating when it is bilateral and severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities; and a 50 percent when it is bilateral and pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. A February 2009 routine check-up appointment noted chronic bilateral foot pain aggravated by walking. A December 2009 treatment record notes a history of flat feet that is treated with Nabumetone (Relafen) 500 mg (one and a half tablet) twice a day for foot pain. On March 2010 VA feet examination the Veteran stated he experienced left foot pain, heat, stiffness, fatigability, and lack of endurance, and pain, swelling, stiffness, fatigability, and lack of endurance in the right foot. Physical examination showed generalized painful motion and tenderness at the dorsum of the left foot and generalized tenderness on the right foot. X-Rays of the bilateral feet showed mild pes planus with mild degenerative change at the bilateral first metatarsophalangeal joints, small bilateral plantar calcaneal spurs, and small enthesophytes at the intersections of the Achilles tendons on the calcanei. In January 2014 the Veteran was seen with complaints of bilateral heel pain. Examination showed decreased bilateral medial arches. He was given a prescription for extra depth shoes and diabetic socks. On March 21, 2016 VA foot conditions examination the Veteran stated he experienced pain all over both feet (dorsum, plantar, heels, and toes). He reported pain on use of both feet. Examination found pain on manipulation of both feet. There was no indication of swelling on use, and there were no characteristic callouses. Physical examination found extreme tenderness of plantar surfaces on both feet, and decreased longitudinal arch height of both feet. There was no marked deformity of either foot. Weight-bearing line did not fall over or medial to the great toe on either foot. Inward bowing of the Achilles tendon or inward displacement and severe spasm of the Achilles tendon was not found in either foot. On May 2016 podiatry consultation for diabetic foot care and examination the Veteran denied any numbness, tingling, or burning to bilateral feet. Physical examination showed bilateral decreased medical arches. Considering the "stages" of the ratings in turn, the Board finds, on longitudinal review of the record, that a 10 percent rating for the flat feet is warranted throughout the period prior to March 21, 2016. The evidence shows that prior to that date the disability picture best approximates one of a moderate flatfoot, so as to warrant the next higher (10 percent for bilateral condition) schedular rating. During that period the Veteran was seen for complaints of painful feet (and medication for foot pain was prescribed). On March 2010 VA foot examination, there was generalized painful motion and tenderness of both feet. This disability picture presented may reasonably be considered one reflective of moderate pes planus (warranting a 10 percent rating). However, more than moderate pes planus was not shown prior to March 21, 2016. In January 2014, extra depth shoes were prescribed for the foot disabilities, but there was normal Achilles alignment on weight bearing and non-weight bearing of both feet, and no evidence of pronation of either foot. Such symptoms do not reflect a more than "moderate" pes planus disability. Regarding the rating assigned from March 21, 2016, on examination on that date, while there was pain on manipulation of both feet, and pain on use (accentuated), the Veteran did not have marked pronation or inward bowing of the Achilles tendon and the weight-bearing line was not over or medial to the greater toe on either foot. Such findings do not reflect more than severe pes planus, do not approximate a disability picture consistent with pronounced pes planus disability, and do not warrant a rating in excess of 30 percent. ORDER Service connection for hyperlipidemia is denied. The appeal to reopen the claim of service connection for HTN is denied. A 50 percent rating is granted for the Veteran's PTSD for throughout the period under consideration (from May 2008), subject to the regulations governing payment of monetary awards; a rating in excess of 50 percent is denied. A 10 percent rating is granted for the Veteran's pes planus for throughout prior to March 21, 2016, subject to the regulations governing payment of monetary awards; a rating in excess of 30 percent for the pes planus from March 21, 2016 is denied. ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs