Citation Nr: 21001308 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-43 834 DATE: January 7, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder is denied. Prior to August 26, 2020, entitlement to an initial disability rating of 10 percent, but no higher, for left toe hallux limitus is granted. Since August 26, 2020, entitlement to an initial disability rating in excess of 10 percent for left toe hallux limitus is denied. Entitlement to an initial compensable disability rating for hypertension is denied. Entitlement to an initial compensable disability rating for anemia is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial compensable disability rating prior to August 26, 2020, and in excess of 10 percent thereafter, for right knee chondromalacia is remanded. Entitlement to an initial compensable disability rating prior to August 26, 2020, and in excess of 30 percent thereafter, for right knee limitation of extension is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s anxiety disorder symptoms most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Throughout the appeal, the Veteran’s left toe hallux limitus has been manifested by painful motion. 3. Throughout the appeal period, the Veteran’s diastolic pressure was not predominantly 100 or more, his systolic pressure was not predominantly 160 or more, and he did not have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 4. The Veteran’s anemia does not result in hemoglobin of 10gm/100ml or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. 2. Prior to August 26, 2020, the criteria for the assignment of an initial 10 percent disability rating, but no higher, for left toe hallux limitus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5280. 3. Since August 26, 2020, the criteria for the assignment of an initial disability rating in excess of 10 percent for left toe hallux limitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code (DC) 5280. 4. The criteria for entitlement to an initial compensable disability rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code (DC) 7101. 5. The criteria for an initial compensable disability rating for anemia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.117, Diagnostic Code (DC) 7700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to June 2010. In August 2019, he testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. This matter was previously before the Board in September 2019, at which time the issues were remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein.  Stegall v. West, 11 Vet. App. 268 (1998).  After the most recent remand, the Agency of Original Jurisdiction (AOJ) granted service connection and assigned a separate 30 percent rating for limitation of extension of the right knee, effective August 26, 2020. See September 2020 rating decision. As this rating is a manifestation of the service-connected right knee disability presently on appeal, the additional disability is included in the appeal for the entire appeal period. See VAOPGCPREC 9-04 (Sept. 17, 2004). Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder The issue before the Board is whether the Veteran is entitled to an increased initial disability rating for his anxiety disorder. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment have not more closely approximated the rating criteria indicative of a 50 percent rating throughout the period on appeal. Therefore, an increased evaluation is not warranted. When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran’s anxiety disorder is currently evaluated under DC 9413, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 30 percent disability rating requires evidence of the following: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating requires evidence of the following: 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. A 70 percent disability rating requires: 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 worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self 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. 38 C.F.R. § 4.130, DC 9413. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. The relevant medical evidence of record includes private and VA treatment records, as well as lay statements from the Veteran. Turning to the evidence of record, the Veteran underwent a pre-discharge VA examination in June 2010 where he was diagnosed with anxiety disorder not otherwise specified. He reported experiencing daily symptoms of mild to moderate severity. The examiner noted that the effect of the Veteran’s anxiety symptoms on social functioning has been mildly severe. The Veteran was not found to have any thought process or communication impairment. Upon mental status examination, the Veteran was found to be alert, casually dressed, appropriately groomed, and maintaining good personal hygiene. His behavior was noted to be adequate. He was pleasant and cooperative, he made good eye contact with the examiner, and his posture and psychomotor activities were normal. The Veteran spoke with a normal rate, volume and tone. No hallucinations or delusions were present. No obsessions, compulsions or phobias were detected. The Veteran denied suicidal or homicidal ideations, intentions or plans. His thought processes were logical, coherent and goal-oriented. His cognitive functions were normal. He was fully oriented to person, place, time and purpose. The examiner stated that, at most, the Veteran had mild limitations of concentration and attention due to anxiety. A review of the Veteran’s VA treatment records shows he has consistently denied experiencing any suicidal or homicidal ideations, hallucinations or delusions. An August 2017 VA mental health note shows the Veteran underwent a mental health exam. The Veteran was noted to be cooperative, friendly, quiet and passive. His mood was noted to be fair, his hygiene was adequate, and both his motor activity and speech were within normal limits. He denied experiencing hallucinations, delusions, or suicidal and homicidal ideations. His insight and judgment were both adequate, and his orientation, attention and concentration were within normal limits. In August 2020, the Veteran underwent another VA examination to evaluate the severity of his anxiety disorder. The examiner summarized the level of occupational and social impairment as that due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted symptoms of anxiety and disturbances of motivation and mood. Upon examination, the Veteran was noted to be casually dressed and maintained adequate personal hygiene. His speech was spontaneous with normal rate and tone. There were no hallucinations or delusions present. No obsessions, compulsions or phobias were detected. The Veteran’s mood was assessed as within normal limits, and his affect was congruent with his mood. The Veteran did not express any suicidal or homicidal ideations, intentions or plans. His thought processes were logical, coherent and goal oriented. His cognitive functions were normal, and he was oriented to person, place, time and purpose. His insight and judgment were also intact. Following a review of the evidence of record, the Board finds that the evidence related to the Veteran’s anxiety disorder does not support the assignment of a rating of 50 percent or higher at any point during the period on appeal. The evidence does not show the Veteran had occupational and social impairment with reduced reliability and productivity. None of the medical evidence of record shows the Veteran had a flattened affect or experienced panic attacks during this period. Additionally, the Veteran’s speech and cognitive abilities are not shown to be have been impaired during this period. VA treatment records during the appeal period also documented the Veteran’s denial of experiencing any suicidal or homicidal ideation. As such, the Board finds that the medical evidence of record weighs against a finding supportive of a disability rating higher than the currently assigned 30 percent rating. The evidence shows some problems with relationships, but the level of impairment is contemplated in his 30 percent rating. The criteria for 50 percent rating are not met or more closely approximated for that period. Therefore, the Board finds that, in the absence of more severe symptomatology more nearly approximating such ratings, the Veteran is not entitled to a rating in excess of 30 percent throughout the appeal. As the criteria for the next higher, 50 percent rating are not met or more closely approximated, it logically follows that the criteria for even higher 70 or 100 percent ratings are likewise not met. 2. Entitlement to an initial compensable disability rating prior to August 26, 2020, and in excess of 10 percent thereafter, for left toe hallux limitus The Veteran contends that he is entitled to increased ratings for his left toe an initial compensable evaluation for his left toe disability. The Board finds that an initial evaluation of 10 percent, but no higher, is warranted for the period prior to August 26, 2020. However, an evaluation higher than 10 percent is not warranted for any period of the appeal. The Veteran’s hypertension is evaluated under DC 5280. Diagnostic Code 5280 provides that a 10 percent rating is warranted for either severe hallux valgus equivalent to amputation of the great toe, or operated hallux valgus with resection of the metatarsal head. 38 C.F.R. § 4.71a. The Board notes that words such as ‘severe,’ ‘moderate,’ and ‘mild’ are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. Turning to the evidence of record, the available VA and private treatment records are silent with respect to any complaints or treatment for his left toe disability. In June 2010, the Veteran underwent a VA examination where he complained of pain and discomfort in his left big toe that was aggravated by prolonged standing and walking. He was not receiving any prescribed medication or treatment for this condition. There was no episode of flare-ups, and the Veteran denied using any assistive device, brace, or shoe inserts. On examination, there was mild tenderness at the MTP joint of the left big toe. There was no edema and no instability found. The Veteran walked with a normal gait. There was no callosity or uneven shoe wear pattern. The examiner also found no skin or vascular changes, no hammertoe, no high arch and no flat feet. The examiner measured the range of motion of the big toe MTP joint at 5 degrees dorsiflexion and 5 degrees plantar flexion. In August 2020, the Veteran underwent another VA examination where he was noted to have a diagnosis of left toe hallux limitus status post arthroplasty. The Veteran reported chronic aching pain, particularly with prolonged walking and standing. He also reported experiencing pain with climbing stairs where his great toe is in dorsiflexion and made to put significant pressure as he ascends stairs. The Veteran stated that during flares it is difficult for him to stand or walk for long periods of time. The examiner found that the Veteran’s disability chronically compromised weight bearing. For the period prior to August 26, 2020, the Board finds that an evaluation of 10 percent, but no higher, is warranted for the Veteran’s left toe disability. During that time, the Veteran’s left toe hallux limitus was manifested by painful motion. The Veteran is entitled the minimum compensable rating for this disability. 38 C.F.R. § § 4.59. Therefore, for the period on appeal prior to August 26, 2020, entitlement to an evaluation of 10 percent is granted. The Board notes that the Veteran is already in receipt of the maximum allowable rating for left toe hallux limitus effective August 26, 2020. Therefore, entitlement to an increased rating in excess of 10 percent is not warranted. 3. Entitlement to an initial compensable disability rating for hypertension The Veteran contends that he is entitled to an initial compensable evaluation for hypertension. The Board finds that the preponderance of the evidence is against an initial compensable evaluation. The Veteran’s hypertension is evaluated under DC 7101. Under DC 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Although the schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, the Board notes that a 0 percent rating is assigned when the requirements for a compensable evaluation are not met pursuant to 38 C.F.R. § 4.3. Turning to the evidence of record, the Veteran underwent a VA examination in June 2010 where he was noted to have a diagnosis of hypertension that was asymptomatic. He was taking medication to control his symptoms, namely 25 milligrams of hydrochlorothiazide every day. Upon examination, his blood pressure was taken three times and measured at 120/80. His cardiac status, size and function were normal. An October 2011 private treatment record included blood pressure readings of 100/60 and 110/70. VA treatment records show the Veteran’s blood pressure was 131/66 in May 2017. In October 2017, his blood pressure reading was 150/72. In April 2018, it was 144/74. In May 2018, the reading was 132/80. In October 2018, it was 135/75. In November 2018, it was 136/80. In August 2019, it was 159/78. In September 2019, it was 144/76. And in November 2019, it was 147/80. Private treatment records showed the Veteran’s blood pressure reading was 131/76 in June 2017, 138/78 in December 2017, 139/81 in February 2019, 127/83 in April 2019, 128/73 in June 2019, and 137/70 in December 2019. In August 2020, the Veteran underwent another VA examination which noted the Veteran has been taking continuous medication, namely, Lisinopril. The examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings measured 143/76, 140/73 and 137/79. Overall, the evidence does not indicate diastolic blood pressure of predominantly 100 or more, or systolic pressure predominantly 160 or more. The Veteran also did not have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. There are no other Diagnostic Codes that might apply to the Veteran’s hypertension. In light of the foregoing, the Board finds that an initial compensable evaluation for hypertension is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. 4. Entitlement to an initial compensable disability rating for anemia The Veteran contends that he is entitled to an initial compensable evaluation for anemia. The Board finds that the preponderance of the evidence is against an initial compensable evaluation. The Veteran’s anemia is evaluated under DC 7700. Under DC 7700, a noncompensable rating is assigned for hemoglobin of 10mg/100ml or less without symptoms. A 10 percent rating is assigned for hemoglobin of 10mg/100ml or less with findings such as weakness, easy fatigability, or headaches. 38 C.F.R. § 4117, Diagnostic Code 7700. The Veteran’s available VA treatment records are silent with respect to any complaints or treatment for anemia. A June 2010 VA examination noted the Veteran took an iron tablet three times a day for his anemia. Examination findings showed the Veteran did not have any hand swelling, congestive heart failure, or other significant physical exam finding. A hemoglobin test measured 15.2 grams/100 milliliters. In August 2020, the Veteran underwent another VA examination which noted the Veteran was not taking medication or in active treatment for this condition. The examiner noted that the Veteran’s anemia was currently asymptomatic. A hemoglobin test measured 10.7 grams/100 milliliters. The competent evidence of record does not establish that the Veteran’s anemia results in hemoglobin of 10gm/100ml or less. As such, a compensable rating is not warranted for his anemia. Therefore, entitlement to a compensable evaluation is denied. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for GERD In August 2020, the Veteran was afforded a VA examination to evaluate the severity of his service-connected GERD. The examiner stated that the Veteran’s symptoms have worsened. Further, the examination report had boxes checked indicating the Veteran experienced persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal pain – symptoms which are indicative of a higher 30 percent evaluation. However, the examination report did not have the box checked indicating that these symptoms were productive of considerable impairment of health. No discussion was provided by the examiner as to how she arrived at this conclusion. Remand is needed to obtain an addendum opinion from the examiner addressing how she arrived at her findings. Further, remand is needed to have the examiner provide a retrospective opinion on July 2015 medical records showing the Veteran was admitted to an emergency room to treat symptoms of cramping upper abdominal pain associated with nausea and vomiting. The Veteran contends that the symptoms he experienced were the result of his disability. The examiner is asked to address the Veteran’s contentions. 2. Entitlement to an initial compensable disability rating prior to August 26, 2020, and in excess of 10 percent thereafter, for right knee chondromalacia is remanded. 3. Entitlement to an initial compensable disability rating prior to August 26, 2020, and in excess of 30 percent thereafter, for right knee limitation of extension is remanded. While the record contains an August 2020 VA examination regarding the Veteran’s right knee disabilities, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). While the examination report notes that passive range-of-motion testing for the right knee was the same as the measurements obtained on active range-of-motion, the examination report fails to provide range-of-motion findings in in non-weight bearing position. Instead, the examination report simply states that there was objective evidence of pain when testing under this condition. No explanation was provided by the examiner for why range-of-motion findings could not be provided. Remand is needed for new VA examinations with more thorough findings in compliance with Correia. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any available VA treatment records regarding the Veteran. 2. Then, forward the claims file and a copy of this remand to the August 2020 VA examiner, if available, or an appropriate substitute to obtain an addendum opinion on the severity of the Veteran’s GERD at the time of the August 2020 VA examination. The examiner must address the frequency, duration, and severity of the Veteran’s symptoms of dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, and explain how she arrived at the finding that the Veteran’s symptoms were not productive of considerable impairment of health. The examiner is also asked to provide a retrospective opinion on July 2015 medical records showing the Veteran was admitted to an emergency room to treat symptoms of cramping upper abdominal pain associated with nausea and vomiting. The Veteran contends that the symptoms he experienced were the result of his GERD disability. The examiner is asked to address whether the medical records indeed document symptoms of the Veteran’s GERD disability. If the examiner is unable to provide an opinion without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the current severity of his service-connected right knee disabilities. The examiner must test and provide range-of-motion findings for the Veteran’s disabilities on active motion, passive motion, and pain with weight-bearing and with nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also specifically comment on the right knee disabilities involve any functional limitation of the right knee. To the extent possible, the examiner should identify any symptoms and functional impairments due to the respective disabilities alone and discuss the effect of the Veteran’s right knee disabilities on any occupational functioning and activities of daily living. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.