Citation Nr: 18120752
Decision Date: 07/24/18	Archive Date: 07/24/18

DOCKET NO. 08-19 114
DATE:	July 24, 2018
ORDER
Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depressive disorder, is denied.
Service connection for a right knee disorder is denied.
Service connection for a kidney disorder is denied.
A higher initial disability rating for bilateral pes planus with bilateral hallux valgus, right foot hammer toe deformity, and foreign body in the left foot (bilateral foot disorder) in excess of 10 percent from April 28, 2005 to November 1, 2011, in excess of 30 percent from November 1, 2011 to December 28, 2017, and in excess of 50 percent from December 28, 2017, is denied.
A total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is denied.
FINDINGS OF FACT
1. The Veteran is currently diagnosed with anxiety disorder and depressive disorder; an in service stressor sufficient to cause PTSD has not been verified; the current anxiety disorder and depressive disorder are not etiologically related to service.
2. The Veteran’s current right knee osteoarthritis did not manifest to a compensable degree within the applicable presumptive period; symptoms of the current right knee disability were not chronic in service or continuous after service; and the right knee disability is not otherwise etiologically related to an in-service injury, disease, or event.
3. The Veteran’s current kidney disorder did not have its onset during service and is not otherwise etiologically related to service.
4. For the initial rating period on appeal from April 28, 2005 to November 1, 2011, the service-connected bilateral foot disorder did not manifest in symptoms that more nearly approximated severe symptomatology, to include objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.
5. For the initial rating period on appeal from November 1, 2011 to December 28, 2017, the service-connected bilateral foot disorder did not manifest in symptoms that more nearly approximated pronounced symptomatology, to include marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, that are not improved by orthopedic shoes or appliances. 
6. For the initial rating period on appeal from December 28, 2017, the service-connected bilateral foot disorder did not manifest as a severe foot injury of either the right or left foot, and did not more nearly approximate loss of use of either foot.
7. The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities for any period.
CONCLUSIONS OF LAW
1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  
2. The criteria for service connection for a right knee disability have not been met.  38 U.S.C. §§ 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).
3. The criteria for service connection for a kidney disorder have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.326(a).
4.  The criteria for a higher initial disability rating for the bilateral foot disorder, in excess of 10 percent from April 28, 2005 to November 1, 2011, in excess of 30 percent from November 1, 2011 to December 28, 2017, and in excess of 50 percent from December 28, 2017, have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276-5284.
5. The criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the appellant, served on active duty from July 1978 to May 1986.
Service Connection Legal Criteria
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability.  
The Veteran is currently diagnosed with osteoarthritis in the right knee which is a “chronic disease” (of arthritis) under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system).
Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service.  For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection.  38 C.F.R. § 3.303(b).
Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.
Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with DSM-V), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s).  See 38 C.F.R. § 3.304 (f).  In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f).  The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.”  Id. 
1. Service Connection for an Acquired Psychiatric Disorder
The Veteran contends that an acquired psychiatric disorder is the result of military service.  In a July 2005 statement, the Veteran contends that, while he was stationed in Neckarsulm, Germany, a static discharged caused a missile to explode, which killed several service members.  The Veteran claims he was part of a team that was tasked with salvaging military equipment, cleaning up blood and human remains, and putting charred body parts into bags.  See also October 2011 Decision Review Officer (DRO) hearing transcript; September 2015 Board hearing transcript.
Initially, the Board finds that the weight of the evidence is against finding that the Veteran has a current DSM-V diagnosis of PTSD.  As discussed in the Board’s prior December 2015 decision, the evidence of record reflects that a missile accident occurred in Germany in January 1985, but that military personnel records reflect the Veteran did not begin his second deployment in Germany until August 1985.  An April 2005 private medical opinion from Dr. J.R. and a November 2005 private neuropsychological evaluation report from Dr. A.V. both indicate a diagnosis for PTSD based on the Veteran’s inaccurately reported traumatic experience of cleaning up human remains and witnessing other servicemen being burned to death, and both contain positive nexus opinions between the diagnosed PTSD and the reported exposure to significant trauma during service; however, the Board finds that the April and May 2005 private medical opinions and diagnoses of PTSD are of no probative value as they are based on the inaccurate factual predicate that the Veteran witnessed other service members burn to death following a missile explosion and was tasked with cleaning up human remains.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).  As noted above, the Veteran was not in Germany at the time of the missile accident (January 1985), but rather did not arrive until August 1985.
Although the Board’s December 2015 decision noted the evidence showed that the Veteran was not stationed in Germany at the time of the January 1985 missile accident, the Board remanded the appeal, in pertinent part, to provide a VA mental health examination and to obtain a medical opinion on any diagnosed acquired psychiatric disorder.  Subsequently, the Veteran underwent a VA mental health examination in December 2017.  During the December 2017 VA examination, the Veteran denied being in Germany at the time of the January 1985 missile explosion, contrary to his prior accounts of the claimed stressor event.  Instead, the Veteran reported that he returned to Germany several months after the January 1985 missile accident, at which time he was part of a team that was tasked with salvaging the equipment that had been involved in the missile accident months before.  Additionally, the Veteran now denied that he witnessed the event or was tasked with placing body parts into bags, as there were no human remains following the missile accident because they had all been incinerated by the explosion; instead, the Veteran reported seeing ash on the missile launcher and assumed it was from the burnt bodies.  Finally, the Veteran reported that he worked with similar equipment as those involved in the January 1985 missile explosion and being concerned that a similar explosion may occur again.
Based on the Veteran’s reports during the December 2017 VA examination that now denied witnessing the missile explosion and denied being tasked with placing human remains into bags, the December 2017 VA examiner determined that the Veteran’s current account of the claimed stressor event does not meet the DSM PTSD stressor criteria necessary to support a diagnosis for PTSD.  See also January 2018 VA Memorandum (finding that the Veteran’s claimed service stressor could not be conceded).  Based on the foregoing, the Board finds that the weight of the competent and credible evidence is against finding that the Veteran has a current DSM-V diagnosis of PTSD. 
Next, the Board concludes that, while the Veteran has a current diagnosis of anxiety disorder and depressive disorder, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of anxiety disorder and/or depressive disorder began during service or is otherwise related to military service.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d).  Service treatment records do not reflect any complaints, symptoms, treatment, or diagnosis for any mental health-related issues.  On the contrary, the Veteran was repeatedly found to be psychiatrically normal during periodic examinations during active service, as well as during a May 1986 service separation examination.  See October 1980 Report of Medical Examination; November 1982 Report of Medical Examination; August 1984 Report of Medical Examination; May 1986 Report of Medical Examination.  Additionally, the Veteran repeatedly denied symptoms of depression or excessive worry or nervous trouble of any sort on corresponding Reports of Medical History following service examinations.
Further, the December 2017 VA examiner opined that it is less likely than not that the Veteran’s current acquired psychiatric disorder was incurred in or caused by active service.  The VA examiner noted that service treatment records show the Veteran was found to be psychiatrically normal at service separation and that he denied symptoms of depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping.  The VA examiner also noted that the earliest indication of any mental health symptoms appears in a November 1988 private treatment record that reflects the Veteran reported experiencing a panic attack on October 1, 1988 (after service) and having stress symptoms present since that time.  The November 1988 private treatment record shows the Veteran reported generalized anxiety symptoms surrounding his work and home life.  Similarly, evidence received from the Social Security Administration (SSA) reflects the Veteran was working at a car dealership and reported being under a lot of pressure at that job.  Accordingly, the December 2017 VA examiner concluded that the Veteran’s current acquired psychiatric disorder had its onset after service separation and is not etiologically related to military service.  The evidence of record does not contain any competent medical opinion to the contrary.  For these reasons, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, have not been met.
2. Service Connection for a Right Knee Disability
The Veteran contends that his current right knee disability, to include osteoarthritis in the right knee, is due to an in-service injury.  The Veteran contends that he injured his right knee playing basketball during service in January 1984 and was taken to the hospital immediately following the injury for treatment that included for the right knee, even though service treatment records do not specifically note complaints of a right knee injury.  The Veteran asserts that he tore his right knee anterior cruciate ligament (ACL) during service and had to undergo surgery for the torn ACL after service separation (approximately 1989).  See October 2011 DRO hearing transcript, September 2015 Board hearing transcript.
Initially, the Board finds the Veteran is currently diagnosed with right knee degenerative arthritis, status post ACL repair surgery.  See December 2017 VA examination report.
The presumptive service connection questions for the Board are whether the Veteran has a chronic disease that manifested to a compensable degree within the applicable presumptive period, whether symptoms were chronic in service, and whether continuity of symptomatology has existed since service.
The Board concludes that, while the Veteran has degenerative arthritis in the right knee, which is a chronic disease under 38 C.F.R. § 3.309(a), the weight of the lays and medical evidence shows that symptoms were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service.  38 U.S.C. §§ 1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  
Private treatment records show the Veteran was not diagnosed with arthritis in the right knee until October 2010, over 24 years after separation from service and 23 years outside of the applicable presumptive period.
While the Veteran is competent to report experiencing symptoms of right knee pain at any time, the Board finds that the reports of continuity of symptomatology since service are inconsistent with and outweighed by other lay and medical evidence of record, so are not credible.  The Veteran’s reports that he injured the right knee while playing basketball in January 1984 are not shown by service treatment records that reflect the Veteran only complained of injuring the right hip and right thumb, and do not show injury to the right knee.  A January 1984 service treatment record notes that the Veteran reported right hip pain and a jammed right thumb after falling during a basketball game, but did not report right knee symptoms, and the service treatment record notes tenderness in the right first metacarpal and right sacroiliac joint region.  Other service treatment records throughout active service also do not reflect any complaints, symptoms, treatment, or diagnosis for any right knee problems.  Further, the Veteran repeatedly denied experiencing any symptoms of arthritis, bone or joint deformity, or a trick or locked knee, both during service and at service separation.  See October 1980 Report of Medical History; August 1984 Report of Medical History; May 1986 Report of Medical History.
As the service treatment records are complete and show complaints and treatment for other disorders, including similar joint or orthopedic disorders that involve painful joints, the Veteran similarly would have reported or complained of right knee injury or symptoms, including pain, had such occurred during service.  See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred).  
The Veteran’s reports of continuous symptoms since service separation are inconsistent with and outweighed by contemporaneous treatment records which do not reflect continuous symptoms of right knee osteoarthritis since service separation.  See e.g. May 1994 private treatment record (reflecting normal examination of the knees); August 2004 private treatment record (showing the Veteran denied any musculoskeletal symptoms).  Additionally, a November 2010 private medical letter from Dr. R.T. states that the Veteran was originally seen in 1988 – two years after service separation – with a diagnosis of chronic deficient anterior cruciate ligament, for which the Veteran subsequently underwent ACL reconstructive surgery; thereafter, 20 years had passed until the Veteran returned with complaints of progressive pain and stiffness in the right knee, which was diagnosed as arthritis in October 2010.  
Service connection for a right knee disability, to include arthritis, may still be granted on a direct basis; however, in this case, the preponderance of the evidence is against finding that a nexus exists between the Veteran’s right knee disability and an in-service injury, disease, or event.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a), (d).  Service treatment records are complete, show complaints and treatment for other disorders, but do not reflect that the Veteran sustained a right knee injury during service.  The January 1984 service treatment record showing a right hip and thumb injury from playing basketball is negative for any complaints, findings, or diagnosis of right knee injury or disorder.  
The Board has considered the Veteran’s contention that the January 1984 service examiner failed to note his complaints of a right knee injury.  In October 2010 and December 2011 written statements, former service members who served with the Veteran report that they witnessed the Veteran injure his right hand, hip, and knee during a basketball game in service.  The former service members contend that the reason the right knee injury was not mentioned in the service treatment records is because the primary trauma was to the right hip area; however, the Board finds that these assertions that the Veteran injured his right knee during service even though it was not noted in the January 1984 service treatment record, are inconsistent with and outweighed by the contemporaneous lay and medical evidence of record, including the Veteran’s own reports of symptoms recorded in contemporaneous treatment records. 
The Veteran repeatedly denied experiencing any symptoms of arthritis, bone or joint deformity, or a trick or locked knee, both during service and at service separation.  Further, the Veteran’s musculoskeletal system and lower extremities were repeatedly found to be clinically normal upon examination throughout service, including after the alleged January 1984 basketball injury, and at service separation.  See October 1980 Report of Medical Examination; November 1982 Report of Medical Examination; August 1984 Report of Medical Examination; May 1986 Report of Medical Examination.  Notably on the May 1986 Report of Medical History, the Veteran reported a history of various other symptoms (and even noted being very active in the Army’s sports program and that he frequently experienced leg cramps when running more than three to four miles), but denied experiencing any symptoms relating to the right knee.
The favorable evidence of record includes a November 2010 written statement wherein Dr. R.T., based on a history provided by the Veteran, opined that the Veteran’s current osteoarthritis is directly related to the original in-service ACL tear in 1984; however, Dr. R.T.’s opinion is predicated on the inaccurate factual premise that the Veteran was diagnosed with an ACL tear during service, and does not address the August 1984 and May 1986 service examinations that found the Veteran’s lower extremities to be clinically normal.  Because Dr. R.T.’s opinion is based on a materially inaccurate and incomplete factual history, the Board finds that it is of no probative value in establishing a nexus between the current right knee disability and active service.  Medical opinions premised upon an unsubstantiated account of a claimant are of no probative value and do not serve to verify the occurrences described.  See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993).
The Veteran underwent a VA examination of the right knee in December 2017, and a medical opinion was provided by the December 2017 VA examiner in February 2018.  The VA examiner opined that it is less likely than not that the Veteran’s current right knee disability was caused by, or etiologically related to, active service.  The VA examiner explained that service treatment records do not reflect that the Veteran sustained a right knee injury in January 1984 and are otherwise negative for any right knee symptoms.  Further, the VA examiner stated that service treatment records do not reflect that an ACL injury occurred during service as ACL injuries are symptomatic, such as a popping sensation in the knee, severe pain and inability to continue activity, swelling that begins within a few hours of the injury, loss of range of motion, and a feeling of instability with weight bearing.
As the competent and credible evidence of record does not establish a medical nexus between the current right knee disability and an injury, disease, or event during service, the Board finds that the criteria for service connection for a right knee disability have not been met.
3. Service Connection for a Kidney Disorder
The Veteran contends that his current kidney disorder is the result of an in-service strep infection.  See September 2015 Board hearing transcript.  Initially, the Board finds that the Veteran has a currently diagnosed kidney disorder in the form of stage two primary membranous glomerulo nephropathy (MGN), and that the Veteran underwent a kidney transplant in 2007.  See December 2017 VA examination report.
After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current kidney disorder is not etiologically related to active service.  Service treatment records throughout service reflect the Veteran’s genitourinary system was found to be clinically normal, including normal urinalysis testing results.  See October 1980 Report of Medical Examination; November 1982 Report of Medical Examination; August 1984 Report of Medical Examination; May 1986 Report of Medical Examination.  Service treatment records also do not reflect any complaints, symptoms, treatment, or diagnosis for any kidney-related problems.  Although service treatment records document colds, upper respiratory infections (URI), and bronchitis, they do not reflect a diagnosis of a strep infection.
At a December 2017 VA examination for kidney conditions, the Veteran reported being seen for several URIs and sore throats during service that he felt resulted in the current kidney disorder.  The December 2017 VA examiner provided a medical opinion in February 2018, wherein the VA examiner opined that it is less likely than not that the Veteran’s current kidney disorder is etiologically related to service, including to the purported strep infection treated during service.  The VA examiner explained that, while the Veteran was treated for diagnosed strep throat during service in July 1981, the throat culture taken at that time was normal and did not indicate the Veteran actually had a strep infection.  Additionally, service treatment records reflect that a urinalysis conducted at service separation was also normal.  Subsequently, the Veteran was seen in 1994, approximately eight years after service separation and 13 years after the purported strep infection, for ankle swelling and proteinuria, which ultimately resulted in the MGN diagnosis per the results of a renal biopsy.  The VA examiner explained that private treatment records reflect the Veteran’s nephropathy is primary and idiopathic in origin, meaning that the kidney disorder is not the result of any other medical condition and there is no etiology for the disorder.  Further, the VA examiner explained that in cases of secondary MGN, treatment is guided by the treatment of the original disease.  In cases of idiopathic MGN, treatment options include immunosuppressive drugs and non-specific anti proteinuric measures; idiopathic MGN is indicated in the Veteran’s case based on treatment of his kidney disorder with steroids and immunosuppressives.  The evidence of record does not contain any competent medical opinions to the contrary.  For these reasons, the Board finds that the criteria for service connection for a kidney disorder have not been met.
4. Initial Rating for the Bilateral Foot Disorder
The schedular rating criteria for disabilities of the foot are found at 38 C.F.R. § 4.73, Diagnostic Codes 5276 through 5284.  The Veteran is in receipt of an initial 10 percent rating for the service-connected bilateral foot disorder from April 28, 2005 to November 1, 2011, a 30 percent rating from November 1, 2011 to December 28, 2017, and the maximum 50 percent rating from December 28, 2017, under Diagnostic Code 5276.  38 C.F.R. § 4.71a.
Under Diagnostic Code 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable.  Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling.  Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability.  Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability.  38 C.F.R. § 4.71a.
After a review of all the evidence of record, the Board finds that, for the initial rating period on appeal from April 28, 2005 to November 1, 2011, the service-connected bilateral foot disorder did not manifest in symptoms that more nearly approximated severe symptomatology, to include objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities to warrant a higher initial rating of 30 percent.  
An October 2010 private medical letter from Dr. M.S. recounts the Veteran’s history of an in-service surgery in 1982 for a subungual exostosis of the right third digit.  During the October 2010 private examination, the Veteran reported pain and discomfort in the feet since service, but denied any active treatment to date since the 1982 in-service surgery.  Upon examination of the Veteran, Dr. M.S. noted severe pes planovalgus (flat feet) with collapse of the medial arch, hammertoes, bunion deformity, and pain along the metatarsophalangeal joints during range of motion, which is consistent with moderate symptoms of acquired flat foot under Diagnostic Code 5276.  The October 2010 private medical letter also noted that X rays showed a foreign body along the plantar left foot (which is documented in service treatment records), but that the Veteran denied it caused any discomfort or pain.  As the October 2010 private medical letter does not reflect findings of objective evidence of marked deformity such as pronation or abduction, indication of swelling on use, characteristic callosities, or symptoms that more nearly approximate pain on manipulation and use accentuated (criteria for a 30 percent rating), the Board finds that the weight of the evidence demonstrates that the criteria for a higher initial rating for the bilateral foot disorder in excess of 10 percent have not been met for the rating period from April 28, 2005 to November 1, 2011.
For the initial rating period on appeal from November 1, 2011 to December 28, 2017, the Board finds that the service-connected bilateral foot disorder did not manifest in symptoms that more nearly approximated pronounced symptomatology, to include marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and sever spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances (criteria for a 50 percent rating), and that a higher initial rating in excess of 30 percent is not warranted. 
During a November 2011 VA examination, the Veteran reported symptoms of pain and numbness behind the toes on both feet, which was aggravated by walking and standing for prolonged periods of time.  The Veteran reported using a cane and orthotics to manage the bilateral foot disorder.  Although the VA examiner found that the Veteran’s left foot symptoms were not relieved by arch supports or orthotics (criteria for a 50 percent rating), the VA examination report also contains negative findings for extreme tenderness of the plantar surface of either foot, objective evidence of marked deformity of the foot such as pronation or abduction, and marked inward displacement and severe spasm of the achilles tendon on manipulation, which demonstrates that symptoms of the bilateral foot disorder did not more nearly approximate the criteria for a higher 50 percent rating.
A December 2011 private medical letter from Dr. M.S. also supports a 30 percent rating for the bilateral foot disorder for the period from November 1, 2011 to December 28, 2017.  The December 2011 private medical letter states that examination of the Veteran revealed bilateral foot pain along the medial band of the plantar fascia and heel, occasional swelling (criteria for a 30 percent rating), characteristic callouses (criteria for a 30 percent rating), objective evidence of moderate to severe marked pronation (criteria for 30 percent and 50 percent ratings), without pain along the achilles tendon (criteria for a 50 percent rating).  Dr. M.S. stated that conservative treatment included custom orthotics, indicating that the Veteran’s symptoms were still responding to orthopedic appliances at that time.
A May 2014 private medical letter, Dr. M.S. states the Veteran’s foot symptoms included significant pain in the feet, characteristic callosities (criteria for a 30 percent rating), hallux abductovalgus deformities (criteria for a 30 percent rating), severe pronation (criteria for 30 percent and 50 percent ratings), without pain along the achilles tendon (criteria for a 50 percent rating).  Further, Dr. M.S. states orthotics were helping the Veteran’s foot symptoms (criteria for a 50 percent rating not met).
The Board further finds that for the initial rating period on appeal from December 28, 2017 forward, a higher initial rating in excess of 50 percent for the service connected bilateral foot disorder is not warranted.  While the Veteran is in receipt of the maximum schedular rating available under Diagnostic Code 5276 from December 28, 2017 forward, the Board notes that higher initial disability ratings may be available to the Veteran under Diagnostic Code 5284 if each foot were to be rated individually for “severe” symptoms of a foot injury.  
Diagnostic Code 5284, which addresses other foot injuries, provides a 10 percent rating for impairment of moderate degree, a 20 percent rating for moderately severe impairment, a 30 percent rating for severe impairment, and a 40 percent rating for actual loss of the use of the foot.  38 C.F.R. § 4.71a.  
Having reviewed all the evidence of record, and considering that all of the Veteran’s bilateral foot symptomatology and functional impairment is addressed by Diagnostic Code 5276, the Board does not find the Veteran’s individual foot symptomatology to more nearly approximate the severity of symptomatology under Diagnostic Code 5284 for severe symptoms of a foot injury.  See also December 2017 VA examination report and June 2018 VA examination report (reflecting negative findings for foot injuries and other conditions).  Rather, the Veteran’s symptomatology is specifically in line with that contemplated by Diagnostic Code 5276 for pronounced acquired flat foot.  Further, under DeLuca v. Brown, 8 Vet. App. 202 (1995), the Veteran’s physical limitations related to the foot symptoms are also considered by Diagnostic Code 5276.  For these reasons, the weight of the evidence reflects that during the initial rating period on appeal from December 28, 2017, the criteria for a higher initial disability rating in excess of 50 percent for the bilateral foot disorder have not been met or more nearly approximated.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.
The Board has considered whether the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008).  After a review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”).
5. Entitlement to a TDIU
Entitlement to a TDIU is potentially an element of all rating issues.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  A TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by non-service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.  In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16(a).
After a review of all the evidence, lay and medical, the Board finds that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities.   For the entire initial rating period on appeal, the Veteran has only been awarded service connection for the bilateral foot disorder.  As discussed above, the Veteran is in receipt of an initial 10 percent rating for the service-connected bilateral foot disorder from April 28, 2005 to November 1, 2011, a 30 percent rating from November 1, 2011 to December 28, 2017, and a 50 percent rating from December 28, 2017; therefore, the Veteran’s service-connected bilateral foot disorder does not meet the regular schedular rating criteria for a TDIU under 38 C.F.R. § 4.16(a) for any period on appeal.
Further, having considered all the evidence of record, lay and medical, the Board finds that referral under 38 C.F.R. § 4.16(b) to the Compensation and Pension Director for extraschedular consideration is not warranted in the instant matter.
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A June 2012 Application for Increased Compensation Based on Unemployability (TDIU Application) reflects the Veteran was employed in a sales position from 1994 to 2011 and stopped working due to the service-connected bilateral foot disability and the non-service-connected acquired psychiatric disorder.  Records received from SSA show the Veteran reported being unable to work due to the non-service-connected acquired psychiatric disorder, kidney disorder, multiple myeloma, and fatigue, as well as the service-connected bilateral foot disability.  While the November 2011, December 2017, and June 2018 VA examination reports for foot conditions all contain findings that the functional impact of the service-connected bilateral foot disability includes interference with walking and prolonged standing, this evidence does not indicate the Veteran is precluded from sedentary employment.  Based on the above, the Board finds that the preponderance of the evidence is against finding that the Veteran is unable to obtain or maintain substantially gainful employment solely due to the service-connected bilateral foot disability, and a TDIU must be denied.
 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Choi, Associate Counsel