Citation Nr: 21005194 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-25 109 DATE: January 29, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. An increased rating in excess of 20 percent for right foot injury residuals with arthritic changes and right saphenous neuritis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disorder to include PTSD began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s right foot injury residuals with arthritic changes and right saphenous neuritis are manifested by no more than moderately severe symptoms and no more than mild to moderate paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an increased rating in excess of 20 percent for right foot injury residuals with arthritic changes and right saphenous neuritis have not been 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 Codes 5284, 8527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Army Reserve. In August 2016, a Travel Board hearing was held before a Veterans Law Judge who is no longer a Member of the Board. The Veteran was advised by correspondence in November 2020 that she could request an additional hearing, but she has not responded in a timely manner and, in accordance with the information provided in the letter, it is presumed she does not desire an additional hearing. A transcript of the hearing is associated with the Veteran’s claims file. The case was remanded by the Board in August 2018 for further development of the evidence. This was accomplished and the case has been returned for further appellate consideration. Entitlement to service connection for an acquired psychiatric disorder. to include PTSD The Veteran contends service connection is warranted for an acquired psychiatric disorder that she states has been diagnosed as PTSD. In correspondence and in testimony given at a formal hearing on appeal, she stated that, while on ACDUTRA in 1975 she was sexually assaulted by another member of the military. She has pointed out that she told others of this assault, and that it was reported while she was undergoing psychiatric treatment as early as 1997. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. Additionally, under 38 C.F.R. § 3.304 (f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of the record, the Board concludes that, while the Veteran has a current diagnosis of an acquired psychiatric disorder, including diagnoses of bipolar disorder, a major depressive disorder and an unspecified anxiety disorder, the preponderance of the evidence weighs against finding that any of the Veteran’s diagnosed acquired psychiatric disorders began during service or are otherwise related to an in-service injury, event, or disease, including a sexual assault during service. Moreover, the record shows that she does not meet the diagnostic criteria for PTSD. Review of the Veteran’s service treatment records (STRs) show no signs or symptoms of an acquired psychiatric disorder. On reserve examinations dated in 1983, 1991, and 1996, there were no complaints or manifestations of an acquired psychiatric disorder indicated. VA outpatient treatment records dated in October 1997 include an impression of change in moods, questionable depression. Later that month, the provisional diagnostic impression was adjustment disorder. In November 1997, the Veteran reported that her first sexual experience was at age 25 while she was on active duty and assaulted by a fellow serviceman. She described a “date-rape” situation. At that time, the diagnostic impressions were alcohol abuse, in full sustained remission, and personality disorder. Additional VA treatment records show that in October 2004 and later, the Veteran was noted to have a bipolar disorder. In a June 2006 statement, a VA treating physician reported that the Veteran had been treated for symptoms of depression, mood swings, irritability and impulsiveness since 1997. In March 2010, the Veteran claimed service connection for PTSD as a result of personal trauma. In September 2019, the Veteran was provided a VA examination. The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD and provided diagnoses of unspecified anxiety disorder and unspecified personality disorder instead. It was further commented that neither diagnosis was due to military service. Regarding the criteria for a PTSD diagnosis, the examiner stated that the Veteran did report a stressor in that she reported a date-rape incident while in the military. The examiner also noted that there were no markers that could be used to substantiate the Veteran’s stressor in the currently available records and that none of the required criteria to support a diagnosis PTSD were met. The examiner stated that, while the Veteran described a history of military sexual trauma and a full constellation of symptoms required for a diagnosis of PTSD, there were not clear markers of a military sexual trauma in her military records. This included no reference in the medical records or reports from her report that she told some other soldiers of the incident. The examiner noted that her Army Reserve performance evaluations did not indicate poor performance and she was able to maintain her military career from 1974 to 1997. VA treatment records from 1997 did mention a report of military sexual trauma, but she was not diagnosed with PTSD and it was noted that “regarding potential PTSD symptomatology, the Veteran did not spontaneously report any symptoms consistent with a diagnosis of PTSD.” Since that time, the focus of her therapy had not been focused on PTSD symptoms, but primarily, but other concerns. While a reported panic attack had been recently added to her diagnosis list, these were also related to interactions with a neighbor and a man whom she believed was stalking her. As such, these were not found to be related to her reported military sexual trauma. Therefore, the examiner opined that the Veteran did not currently meet the diagnostic criteria for PTSD. Regarding the diagnosis of unspecified anxiety disorder, unspecified personality disorder, and history of treatment for bipolar disorder and depression in the past, the examiner opined that these were less likely than not related to military service or report of military sexual trauma. The examiner based this opinion on the interview and review of the available records, which revealed that the Veteran had a history of a traumatic and abusive childhood as well as other postservice interpersonal relationship issues that the examiner felt were more responsible for her symptoms. The Board finds that the record shows that the Veteran was not diagnosed with an acquired psychiatric disorder until 1997 when she was noted to have a mood disorder. She was later diagnosed with bipolar disorder and currently has a diagnosis of an anxiety disorder. None of these disorders is shown to be related to her periods of ACDUTRA or INACDUTRA. While the Veteran is competent to report having experienced symptoms of a psychiatric disorder that she believes are related to military sexual trauma in service, she is not competent as a lay person to provide a diagnosis in this case, make a determination that she has symptoms that are manifestations of PTSD, or comment on the etiology of her psychiatric disorders. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The only medical opinion in the record regarding the Veteran’s acquired psychiatric disorder is that the Veteran does not have a confirmed diagnosis of PTSD and that her currently diagnosed psychiatric disorders were not at least as likely as not related to an in-service injury, event, or disease, including military sexual trauma during service. The rationale was that the Veteran did not meet any of the criteria for a diagnosis of PTSD and that an interview of the Veteran and review of the record failed to demonstrate a relationship with her current psychiatric disorders and service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, personality disorders are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). While service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder), by superimposed disease or injury, the Board finds no evidence of additional disability due to in-service aggravation of any personality disorder by superimposed disease or injury during service. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). As such, there is no basis for service connection for this diagnosed disability. In conclusion, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder, including PTSD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to an increased rating for right foot injury residuals with arthritic changes and right saphenous neuritis The Veteran contends that her right foot disorder is more disabling than currently evaluated. During the Board hearing in 2016, she testified that she felt she was entitled to a higher rating because her foot disability had worsened. Review of the record shows that service connection was initially granted by rating decision dated in March 1999 with an initial rating of 10 percent assigned under the provisions of Diagnostic Codes 5284 and 8527. The rating was increased to 20 percent by decision of the Board dated in July 2007. The Veteran requested an increased rating in March 2010. An examination was conducted by VA in June 2010. It was noted that the Veteran had arthritis changes in the right foot and saphenous nerve neuritis that created right foot pain. She complained of constant pain to the anterior of the foot at the right first digit, a hallux valgus or bunion formation, with no abnormal angulation or dorsiflexion of the first metatarsophalangeal (MTP) joint. She also had a 2nd hammertoe deformity. It was noted that the Veteran had been followed by podiatry and orthopedic surgery and given cortisone injections over the years to relieve the pain and discomfort. An X-ray study showed degenerative joint disease of the right first metatarsal phalange and large osteophyte dorsally at the hammertoe deformity of the second toe. The Veteran stated that if she stood more than an hour or walked more than a mile, she had flareups of a steady intense pain. For relief, she would elevate her feet, soak them in Epsom saults, and took ibuprofen. The flareups occurred daily. She denied weakness, daily stiffness, swelling, heat, and warmth. She also had redness at times. She stated that she had limitation of motion and functional impairment during flare-ups and had used a cane for the last two months. She denied effects on her activity of daily living. Regarding neuritis, she denied evidence of paresthesia, dysesthesia, sensory abnormalities, tingling, or numbness. She stated that she did have positional 4th and 5th toe numbness when walking, with no radiculopathy. Symptoms were resolved with movement. She denied easy fatigability, functional loss, weakness, or lack of endurance. On physical examination, her right foot was noted to have an obvious hallux valgus deformity of the 1st MTP with mild inward angulation of the 1st toe. There was a 2nd hammertoe claw deformity. There was no callus formation, abnormal shoe wear, or breakdown. There were no skin or vascular changes. There was no high arch claw foot, pes planus, or deformity. She had active range of motion of the MPT great toe with no redness, swelling or edema. Palpation showed complaints of pain at the hammertoe and hallux valgus formations and at the arch of the foot with deep penetration. There were no abnormal bony prominences other than the hammertoe deformity and hallux valgus deformity of the foot. The Veteran was able to wiggle her toes, although this was limited with the hammertoe and 1st MTP great toe. There was pain with movement. There was no abnormal weightbearing alignment of the Achilles tendon, no obvious pes planus and no forefoot or midfoot malalignment. There was no clubbing or cyanosis and no edema. There was no paralysis, neuritis, or neuralgia. There was no muscle wasting or atrophy. Motor strength was 5/5 bilaterally. Gait was normal. He was able to stand on his heels, but unable to stand on his toes due to deformities. Monofilament testing revealed good sensate ability to the soles of the feet to include the toes. Vibratory sense was good, and reflexes were intact. An X-ray study showed advanced degenerative changes of the 1st MTP joint with hallux valgus. The diagnoses were degenerative joint disease of the 1st MTP of the right foot, hammertoe of the 2nd digit, hallux valgus of the right foot, and saphenous nerve neuritis of the right foot. Outpatient treatment records show that the Veteran underwent a podiatry evaluation in July 2010. At that time, she had point tenderness with palpation to the 1st MPT joint dorsally and medially. There was mild lateral deviation noted to the hallux with contracture of the 2nd and, to a lesser extent, 3rd toes. There was mild adductovarus rotation noted of the 4th and 5th toes. The 1st MPT joint exhibited minimal dorsiflexion with range of motion approximately 15 degrees with dorsiflexion. The 2nd toe was in a rigid contracture and is nonreducible. The impression was right foot hallux limitus with rigid contracture of the 2nd toe and a contracted 3rd toe. The Veteran was advised of the possibility of surgical intervention. An examination was conducted by VA in July 2012. At that time, the diagnoses were hallux rigidus and residuals of a foot injury defined as a peroneal tendon rupture on the left. The Veteran was noted to have a longstanding history of pain, stiffness, and swelling of the right great toe. There was no evidence of Morton’s neuroma, metatarsalgia, hammer toes, or hallux valgus. Mild to moderate hallux rigidus of the right foot was noted. There was no claw foot deformity, malunion or nonunion of the tarsal or metatarsal bones. The Veteran had ongoing pain, swelling and difficulty walking due to right hallux rigidus. She used a cane on occasion for foot pain. Imaging studies showed degenerative arthritis of the right foot. Functional impact was described as difficulty walking, climbing or standing for long periods of time. The examiner remarked that the condition was expected to progressively worsen over time. The Veteran underwent a first MTP joint fusion and second proximal interphalangeal (PIP) joint fusion of the right foot in May 2013. In a June 2018 statement, the Veteran’s VA podiatrist indicated that, status post surgery, the Veteran continued to require periodic podiatric care and she had been ordered custom foot orthotic inserts. An examination of the Veteran’s foot was conducted by VA in September 2019. After reviewing the Veteran’s podiatry records, the diagnosis was hammer toes, hallux rigidus, and residuals of a right foot injury with arthritic change and right saphenous nerve neuritis. It was noted that the Veteran continued to see her podiatrist every two months and took Ibuprofen three times per day for pain. She described the pain as being 7/10 on the plantar surface of the right foot. The Veteran described flare-ups as so much pain that she “saw stars.” She described functional loss as increasing pain ambulating long distances. Hammer toes were noted on the second, third and fourth toes of the right foot. She had mild to moderate symptoms due to hallux rigidus. Her foot condition did not chronically compromise weight bearing. She did require bilateral orthotics, but she did not wear them any longer because she stated that they caused increased pain. It was also noted that she had had surgery on the right foot in May 2013, with limitation of motion of the great toe. Examination noted pain on weight bearing and interference with sitting and standing. The examiner stated that there was functional loss during flare-ups when the foot was used repeatedly over a period of time in that the Veteran could not stand or ambulate for more than 30 minutes at a time without resting before completing her activities. Functional impact was described as difficulty ambulating greater than 30 minutes and causing pain when standing on concrete. She reported difficulty ambulating on uneven surfaces. On VA peripheral nerve examination in September 2019, it was noted that the diagnosis was right saphenous nerve neuritis, residuals of a right foot injury. The Veteran reported cramping pain in the right foot and shooting pain related to her right saphenous nerve neuritis. The examiner noted moderate constant pain in the right lower extremity as well as mild paresthesia and mild numbness. Muscle strength was 5/5. There was no muscle atrophy. Deep tendon reflexes were all normal. Sensation to light touch was normal. There were no trophic changes. Gait was normal. The examiner found that there was mild incomplete paralysis of the internal saphenous nerve. The examiner noted that the Veteran’s peripheral nerve disability caused difficulty with ambulation greater than 30 minutes at a time, that standing on concrete was painful and that she had difficulty ambulating on uneven surfaces. The Veteran’s right foot disability is rated under a combination of 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries and Code 8527 for paralysis of the right saphenous nerve. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See www.merriam-webster.com/dictionary/severe. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Paralysis of saphenous nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8527. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8627 or 8727. Under these criteria, mild to moderate paralysis is rated as noncompensable. Moderate to complete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Where there is separate and distinct symptomatology of a single condition it should be separately rated. Where the symptomatology of a condition is duplicative or overlapping with symptomatology of another condition, it may not receive a separate evaluation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for residuals of the Veteran’s right foot injury. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and an inability to stand for more than 30 minutes or to walk on uneven ground but, even considering the these reports, the degree of limitation reflected by the statements and medical evidence do not demonstrate symptoms more nearly approximating severe other foot injuries. The Veteran’s disability has been consistently described as mild to moderate throughout the appeal period, with an ability to stand for up to 30 minutes at a time without the need for assistive devices. As more than moderate disability is demonstrated, there is no basis for a rating in excess of 20 percent for residuals of a foot injury. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban 6 Vet. App. at 259; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. It is noted that the Veteran is also rated under the provisions for impairment of the internal saphenous nerve, but with the exception of some mild paresthesia and numbness, the symptoms of nerve injury duplicate those rated under Diagnostic Code 5284. Regarding the numbness and paresthesia, the examiner specifically found this to be productive of no more than mild impairment. For a 10 percent rating, severe incomplete or complete paralysis would have to be demonstrated. As such, the evidence of record is against a finding that there are disabilities that have distinct manifestations from those that are already being compensated. See 38 C.F.R. § 4.14. Mild incomplete paralysis is rated as noncompensable under Diagnostic Code 8527. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for residuals of an injury of the right foot and mild incomplete paralysis of the internal saphenous nerve. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.