Citation Nr: 19106960 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-28 165 DATE: January 29, 2019 ORDER From March 6, 2014, a rating of 20 percent, but no higher, for lumbosacral strain with degenerative arthritis of the spine (low back disability) is granted. From March 6, 2014, a rating of 30 percent, but no higher, for bilateral metatarsalgia with plantar fasciitis and heel pain (bilateral foot disability) is granted. From August 21, 2013, a rating of 70 percent for posttraumatic stress disorder and other specified bipolar disorder (PTSD) is granted. From August 21, 2013, a total disability rating due to individual unemployability (TDIU) is granted. From March 6, 2014, special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. From March 6, 2014, the Veteran’s low back disability is productive of symptomatology that more closely approximates muscle spasm or guarding severe enough to result in an abnormal spinal contour. 2. From March 6, 2014, the Veteran’s bilateral foot disability has been manifested by symptomatology that more closely approximates the criteria for severe bilateral flatfoot. 3. From August 21, 2013, the Veteran’s PTSD has been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; but not total occupational and social impairment. 4. From August 21, 2013, the Veteran’s PTSD has precluded him from securing or following a substantially gainful occupation. 5. From March 6, 2014, the Veteran has had additional service-connected disabilities independently ratable at 60 percent, separate and distinct from his total rating for PTSD. CONCLUSIONS OF LAW 1. From March 6, 2014, the criteria for a rating of 20 percent, but no higher, for a low back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. From March 6, 2014, the criteria for a rating of 30 percent, but no higher, for a bilateral foot disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5276. 3. From August 21, 2013, the criteria for a rating of 70 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9411. 4. From August 21, 2013, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400(o)(2), 4.3, 4.16. 5. From March 6, 2014, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2003 to February 2007 and from December 2008 to January 2011, with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s representative withdrew in January 2018. The Veteran has not since appointed a new representative, and thus is considered pro se in this matter. The Veteran claimed service connection for residuals of left leg burns. See January 2011 VA Form 21-526c; see also March 2011 VA Examination Report (noting unstable left leg scar). This claim has not yet been adjudicated, thus it is referred to the RO for appropriate action. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Low Back Disability The Veteran’s service-connected low back disability is presently rated at 10 percent under DC 5237 throughout the appeal period. The instant appeal period is from March 6, 2014, the date of the Veteran’s claim for an increased rating, plus the one-year look-back period. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which provides a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Here, the Veteran’s low back disability has manifested with painful motion, intermittent weight-bearing pain, and abnormal spinal curvature. See August 2014 VA Examination Report (straightening of lumbar lordosis). The Board observes that the criteria for a 20 percent disability evaluation include “muscle spasm or guarding severe enough to result in an … abnormal spinal contour such as … reversed lordosis,” while the criteria for a 10 percent evaluation exclude symptomatology severe enough to cause abnormal contour. See General Rating Formula (10 percent evaluation for “muscle spasm, guarding, or localized tenderness not resulting in … abnormal spinal contour”) (emphasis added). Thus, while the Veteran does not meet the precise criteria for a 20 percent rating, the Board finds that after application the DeLuca factors, the Veteran’s low back symptoms more closely approximate the criteria for a 20 percent rating. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59. Conversely, the Board finds that a rating higher than 20 percent is not warranted for the Veteran’s low back disability. Either ankylosis or forward flexion of the thoracolumbar spine limited to 30 degrees or less is necessary for a rating higher than 20 percent, and the evidence shows that the Veteran’s normal range of motion is not limited and that his spine is not ankylosed. See August 2014 VA Examination Report (noting that 80 degrees of thoracolumbar forward flexion is normal for the Veteran). Moreover, a higher rating is not available based on application of the DeLuca factors, as they are contemplated by the instant award. The Board has also considered whether a higher rating is warranted under any alternatively applicable DC, but finds that a higher or separate rating may not be awarded. In this regard, the Board acknowledges that the Veteran’s diagnosis has progressed from lumbosacral strain to lumbosacral strain with degenerative arthritis of the spine. See August 2016 VA Medical Opinion. Thus, application of DC 5003 would be appropriate. However, the Board finds that the Veteran is not entitled to a higher or additional rating under DC 5003, as his normal range of motion is not limited (as noted above), and as his present rating already contemplates his symptoms of a painful but full normal range of motion. Thus, any additional award would be unsupported by the evidence, or would constitute pyramiding. 38 C.F.R. § 4.14.   2. Bilateral Foot Disability The Veteran’s service-connected bilateral foot disability, described as “bilateral metatarsalgia with plantar fasciitis and heel pain,” is rated at 10 percent under DC 5279 prior to September 19, 2016, and at 30 percent under DC 5276 thereafter. The Board notes that the Veteran has not been diagnosed with metatarsalgia during either VA examination or in his treatment records. Additionally, the Board finds that use of DC 5276 throughout the appeal period is warranted, as it is most analogous to the Veteran’s disability and allows for assignment of an increased rating. Under DC 5276, a 30 percent rating is warranted for severe bilateral flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent rating is warranted for pronounced bilateral flatfoot, with 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. See 38 C.F.R. § 4.71a, DC 5276. Initially, the Board finds that the August 2014 VA examination is inadequate, as the report of that examination includes contradictory descriptions of the functional loss caused by the Veteran’s foot disability. Thus, the Board will only discuss the September 2016 VA examination report. In this regard, the Board observes that the evidence does not show that the Veteran’s foot disability substantially fluctuated over the appeal period. Moreover, the Veteran will not be prejudiced by only discussing this evidence, as the the September 2016 examination findings are not less favorable to the Veteran. The September 2016 examiner noted that the Veteran’s bilateral foot disability was productive of bilateral accentuated pain on manipulation and use, extreme tenderness of the plantar surfaces, decreased longitudinal arch support, and pain on weight-bearing and nonweight-bearing. The examiner further noted that these symptoms were improved by arch supports. The examiner also noted the Veteran’s report that his bilateral foot pain was worsened by walking, standing, and sitting. See September 2016 VA Examination Report. The Board finds that this symptomatology more closely approximates severe bilateral flatfoot. In this regard, the Veteran has some, but not all, of the criteria described by the Rating Schedule for both “severe” and “pronounced” flatfoot. However, the Veteran’s foot disability is improved by orthopedic appliances, and the Rating Schedule explicitly indicates that “pronounced” flatfoot is not improved by orthopedic shoes or appliances. Thus, the Board finds that throughout the appeal period, the Veteran meets the criteria for a rating of 30 percent, but no higher, under DC 5276. The Board acknowledges that the September 2016 VA examiner did not record having conducted all the testing described in Correia v. McDonald, 28 Vet. App. 158 (2016). However, the Veteran is not prejudiced by this omission, as the only higher rating available requires that the Veteran’s foot condition not be improved by the use of orthopedic shoes or appliances, and the record shows that the Veteran’s condition is improved by these devices. Moreover, the Board notes that the only other DC pertaining to the feet that could provide a rating in excess of 30 percent for this period is DC 5278, which provides a 50 percent rating for bilateral claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. See 38 C.F.R. § 4.71a, DC 5278. As there is no indication that the Veteran has any of these symptoms, no higher rating under that DC is available. 3. PTSD The Veteran’s psychiatric disorder is currently rated 50 percent disabling prior to March 6, 2014, and 70 percent disabling thereafter, under the General Rating Formula for Mental Disorders (Rating Formula). 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 under § 4.130 is not restricted to the symptoms provided in the DC. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). A 70 percent rating is assigned when the psychiatric condition produces 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 total disability rating is assigned a psychiatric condition productive of total occupational and social impairment, due to symptoms such as: gross impairment in through 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. After a review of the medical and lay evidence, the Board finds that the Veteran’s symptomatology has met the Rating Formula criteria for a rating of 70 percent, but no higher, since August 21, 2013. On that date, the Veteran presented to the Emergency Department reporting increased problems with his psychiatric symptomatology. See VA Mental Health Treatment Notes. Notes from subsequent mental health sessions conducted prior to the Veteran filed his increased rating claim show that he was unable to work due to inability to form effective working relationships with supervisors and difficulty responding to stressful circumstances in the workplace. See, e.g., November 26, 2013 VA Treatment Note. In February 2014, the Veteran called the VA suicide hotline, although he denied suicidal ideation at that time. As this increase in psychiatric symptoms is documented within the one-year lookback period, the Board finds that the Veteran is entitled to a 70 percent rating as of August 21, 2013, the date within the lookback period that the evidence establishes increased symptomatology. Conversely, the Board finds that the Veteran does not meet the criteria for a total rating under the Rating Formula, as his social functioning is not totally impaired. See, e.g., May 2016 VA Psychiatric Examination Report (noting that while Veteran only leaves the apartment for errands, he has contact with friends by phone or online). Moreover, the Veteran has not demonstrated the symptoms described therein. In this regard, the Board finds that the Veteran’s occasional passive suicidal ideation is contemplated by a 70 percent rating. Additionally, the Board finds that the Veteran has not shown a persistent danger of hurting himself or others. While he has a remote history of a suicide attempt, he has consistently denied suicidal and homicidal ideation throughout the appeal period. Furthermore, while the Veteran has reported auditory hallucinations of hearing “things dropping,” the Board finds this isolated report does not rise to the level of persistent delusions or hallucinations. Finally, the Board notes that the evidence does not show that the Veteran is unable to consistently perform his activities of daily living, even when his symptomatology caused him to largely avoid public interactions. However, as discussed below, the Board finds that the Veteran’s PTSD symptoms have rendered him unable to secure or follow a substantially gainful occupation, and thus he is entitled to a TDIU based upon his PTSD. Thus, the Board finds that the evidence shows that as of August 21, 2013, the Veteran is entitled to a rating of 70 percent, but no higher, for PTSD. 38 C.F.R. § 4.130, DC 9411. 4. TDIU The Veteran asserts that he is entitled to a TDIU based upon his PTSD, due to his anxiety and inability to adjust to working under supervision. See May 2015 Notice of Disagreement (NOD). To qualify for a total rating for compensation purposes, the evidence must show that a veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Veteran originally sought a TDIU based on the effects of his psychiatric symptoms, bilateral foot disability, and low back disability, he subsequently limited his appeal to a TDIU based on his PTSD. See May 2015 NOD. Thus, the Board will focus its discussion on the effects of that disability on the Veteran’s employability, as to award a TDIU solely in relation to PTSD is more favorable. The Veteran is in receipt of a 70 percent rating for his PTSD from August 21, 2013. Thus, the Veteran has met the threshold schedular requirement for the award of a TDIU based on his PTSD throughout the appeal, and this appeal turns on whether the functional impairment associated with that disability is of such nature and severity as to preclude substantially gainful employment. The evidence of record reflects that throughout the appeal the Veteran has been unemployed, except for a brief period of employment (just over one month) with the United States Postal Service in late 2014, which is marginal. See Vocational Rehabilitation Records; 38 C.F.R. § 4.16(a). The Veteran graduated high school and attended some college courses relating to information technology. See id., see also February 2017 Mental Health Treatment Note. He worked in computer networking while on active duty, but has not held a position in that field since that time. See Vocational Rehabilitation Records. The Veteran has held several jobs since his January 2011 separation from active duty, but has been unable to maintain any position due to anxiety and conflicts with management. See id.; see also May 2016 VA Psychiatric Examination Report (noting that Veteran has difficulty maintain employment due to high level of distress and relationship problems with supervisors, and that Veteran “has not been able to maintain continuous employment”). The Veteran has also had difficulty pursuing structured education since separation from active duty. The May 2016 VA examiner noted that the Veteran was a “full-time student” at an online university with about one- and one-half semesters to complete before attaining a degree, but noted that the Veteran had “very inconsistent” performance in school. The Board observes that a February 2017 mental health treatment note indicates that the Veteran reported that he was still one year away from a degree in computer programming, and that while he enjoyed learning, he found his workload to be stressful. Based on the evidence of record, the Board finds that the Veteran’s service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation. The Board observes that while the Veteran has repeatedly attempted to re-enter the workforce, he has been unable to maintain employment due to his anxiety and inability to work under supervision. Indeed, the record shows that the Veteran’s anxiety and depression cause him to remain at home whenever possible. Moreover, while the Veteran has attempted to overcome his psychiatric difficulties and train online, he has not been able to complete the worklike activity of completing his degree, which might create additional occupational opportunities amenable the Veteran’s disability. The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board acknowledges the opinion of the August 2014 VA examiner that “the [V]eteran does have significant issues regarding [PTSD], but in my opinion he could work in an environment with minimal contact with others and loose supervision... [h]e has had difficulty maintaining employment in the past due to his impaired interaction with others, especially supervisors. In a work environment where he would have limited contact with others and loose supervision, however, he would do better in maintaining employment.” The Board observes that the Veteran has been unable to make substantial progress in pursuing training at an online university - a worklike environment of the exact type described by the examiner. Finally, the Board acknowledges the statement in the most recent mental health note of record that the Veteran was “considering the possibility of going back to work” and wanted to explore if therapy could help him to do so. See February 2017 VA Treatment Note. This statement does not weigh against the Veteran’s claim for a TDIU, as the present record clearly indicates that the Veteran has been unable to secure or follow a substantially gainful occupation, and the Board will not develop evidence detrimental to the Veteran’s claim. Moreover, even should the Veteran have succeeded in obtaining substantially gainful employment, the Veteran would have to maintain such employment for a sufficient period of time to show that he was able not only to secure, but also to follow a substantially gainful occupation. Finally, the Board will not penalize the Veteran for simply expressing his genuine wish to overcome his disability and return to the workforce, and in any event, such a statement does not, standing alone, does not create even a reasonable doubt that he is entitled to a TDIU. Thus, as the preponderance of the evidence supports the Veteran’s claim, a TDIU based entirely on the Veteran’s service-connected PTSD is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. 5. SMC VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). SMC is payable where a veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. A TDIU may satisfy the “rated as total” element of 38 U.S.C. § 1114(s), if the TDIU is awarded for a single disability. See Buie, supra. In this case, the Veteran is entitled to a TDIU for his PTSD alone, and he has additional service-connected disabilities ratable at a combined 60 percent from March 6, 2014. Accordingly, he is entitled to SMC at the housebound rate from that date. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel