Citation Nr: 21063784 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-20 860 DATE: October 15, 2021 ORDER New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder, including major depressive disorder, is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. For the rating period from March 4, 2016 to December 7, 2016, an increased disability rating of 50 percent, but no higher, for bilateral pes planus with plantar fasciitis is granted. For the rating period from December 7, 2016 forward, an increased disability rating in excess of 50 percent for bilateral pes planus with plantar fasciitis is denied. For the entire rating period on appeal from March 4, 2016, an increased disability rating in excess of 30 percent for migraine headaches is denied. REMANDED Service connection for an acquired psychiatric disorder, including major depressive disorder, including as secondary to service-connected disabilities is remanded. An increased disability rating in excess of 10 percent for right knee pain syndrome with degenerative arthritis (right knee disability) is remanded. An increased disability rating in excess of 10 percent for left knee pain syndrome with degenerative arthritis (left knee disability) is remanded. A higher initial rating in excess of 10 percent for left knee instability is remanded. An increased disability rating in excess of 10 percent for the right ankle strain (right ankle disability) is remanded. An increased disability rating in excess of 10 percent for the left ankle strain (left ankle disability) is remanded. FINDINGS OF FACT 1. In an unappealed December 2003 rating decision, the Regional Office (RO) denied reopening service connection for an acquired psychiatric disorder, to include depression, on the basis that the evidence did not show a currently diagnosed disability; evidence received since the October December 2003 rating decision relates to the unestablished fact of a current disability, which is necessary to substantiate a claim for service connection. 2. The Veteran is not currently diagnosed with PTSD. 3. For the rating period from March 4, 2016 to December 7, 2016, the bilateral pes planus had been manifested by pronounced symptomatology not improved by orthopedic shoes or appliances. 4. For the rating period from December 7, 2016 forward, the Veteran is in receipt of the maximum schedular rating of 50 percent for the bilateral pes planus with plantar fasciitis available under Diagnostic Code 5276. 5. For the entire rating period on appeal from March 4, 2016, the migraine headaches have not manifested in symptoms of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The December 2003 rating decision declining to reopen service connection for acquired psychiatric disorder, to include depression, became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the December 2003 rating decision is new and material to reopen service connection for an acquired psychiatric disorder, to include major depressive disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Resolving reasonable doubt in favor of the Veteran, for the rating period from March 4, 2016 to December 7, 2016, the criteria for an increased disability rating of 50 percent, but no higher, for bilateral pes planus with plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 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 Code 5276. 5. For the rating period from December 7, 2016 forward, the criteria for an increased disability rating in excess of 50 percent for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 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 Code 5276. 6. For the entire rating period on appeal from March 4, 2016, an increased disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from May 1997 to October 1999. 1. Reopening service connection for an acquired psychiatric disorder Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a December 2003 rating decision, the RO declined to reopen service connection for an acquired psychiatric disorder, to include depression, on the basis that the evidence did not show a current psychiatric disorder. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the December 2003 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the December 2003 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, private examination reports, lay statements, and the July 2021 Board hearing transcript, which evidence is new because they have not been previously submitted. Evidence received since the December 2003 rating decision includes an April 2018 private examination report reflecting the Veteran is currently diagnosed with major depressive disorder. The Board finds that such evidence relates to whether the Veteran has a currently diagnosed psychiatric disorder, so could reasonably substantiate a claim for service connection for an acquired psychiatric disorder, to include major depressive disorder. As such, the Board finds that the additional evidence is new and material to reopen service connection for an acquired psychiatric disorder, including major depressive disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran generally seeks service connection for PTSD as related to bullets and mortars being fired during training exercises during service. See March 2016 VA Form 21-526EZ; March 2016 Statement in Support of Claim for PTSD. The Veteran's claim for service connection for an acquired psychiatric disorder, to include major depressive disorder, is addressed in the remand section of the Board's instant decision below. 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. Upon review of all of the evidence of record, lay and medical, the Board finds that the weight of the evidence shows no confirmed diagnosis for PTSD consistent with the DSM-V diagnostic criteria. See 38 C.F.R. § 4.125. VA treatment records throughout the claims period on appeal do not reflect any complaints, symptoms, diagnosis, or treatment for PTSD. The record includes an April 2018 private examination report, which also does not reflect a diagnosis for PTSD. Additionally, VA treatment records throughout the claims period on appeal show the Veteran's PTSD screens were negative. See December 2015 VA treatment record; January 2021 VA treatment record. For the foregoing reasons, the Board finds that the weight of the evidence is against finding that there is a current diagnosis of PTSD consistent with the DSM-V diagnostic criteria. For this reason, the appeal for service connection for PTSD must be denied. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 3. Rating bilateral pes planus with plantar fasciitis from March 4, 2016 to December 7, 2016 For the rating period on appeal from March 4, 2016 to December 7, 2016, the Veteran is in receipt of a 10 percent disability rating for the service-connected bilateral pes planus (flatfoot) with plantar fasciitis under Diagnostic Code 5276. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a 10 percent rating is assigned for moderate bilateral flatfoot, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet, either bilateral or unilateral. A 30 percent rating is assigned for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. A 50 percent rating is assigned for bilateral 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, not improved by orthopedic shoes or appliances. After a review of the lay and medical evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the rating period on appeal from March 4, 2016 to December 7, 2016, the criteria for an increased 50 percent rating under Diagnostic Code 5276 have been met. Throughout the rating period from March 4, 2016 to December 7, 2016, the bilateral pes planus has manifested in pronounced bilateral flatfoot. The Veteran underwent a VA examination in March 2016, the examination report for which shows the Veteran reported bilateral foot pain, episodes of flare ups including instability, and difficulty standing and walking due to pain. Despite the Veteran's reports of foot pain, the March 2016 VA examiner noted negative findings of any right or left foot symptoms, including pain on use of the feet, and assessed no functional impairment or functional loss of the feet. The Veteran underwent another VA examination in December 2016, only a few months after the March 2016 VA examination. In contrast to the March 2016 VA examination report, the December 2016 VA examination report reflects severe bilateral foot symptoms such as pain on use and manipulation of the feet, inward bowing of the achilles tendon of both feet, and marked inward displacement and severe spasm of the achilles tendon in both fee that are not improved by orthopedic shoes or appliances. The findings contained in the December 2016 VA examination report are consistent with a subsequent March 2021 VA examination report that reflects similar findings of pain on use and manipulation of the feet, extreme tenderness of plantar surfaces of both feet that is not improved by orthopedic shoes or appliances. Finally, the Veteran credibly testified during the July 2021 Board hearing that his bilateral foot symptoms had been consistent prior to 2016. Based on the foregoing, the Board finds that the March 2016 VA examination report is outweighed by the December 2016 VA examination report, the March 2021 VA examination report, and the Veteran's July 2021 Board testimony. For this reason, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the rating period from March 4, 2016 to December 7, 2016, the criteria for an increased 50 percent disability rating under Diagnostic Code 5276 for the bilateral pes planus with plantar fasciitis have been more nearly approximated. 38 C.F.R. § 4.71a. As the Veteran is now in receipt of the maximum 50 percent rating for bilateral pes planus under Diagnostic Code 5276 for the rating period from March 4, 2016 to December 7, 2016, an increased disability rating in excess of 50 percent is not possible. 38 C.F.R. § 4.71a. 4. Rating bilateral pes planus with plantar fasciitis from December 7, 2016 forward For the rating period on appeal from December 7, 2016 forward, the Veteran is already in receipt of the maximum 50 percent disability rating available for the service-connected bilateral pes planus with plantar fasciitis under Diagnostic Code 5276. 38 C.F.R. § 4.71a. As the Veteran's bilateral pes planus with plantar fasciitis has already been rated as 50 percent disabling, the maximum allowable rating under Diagnostic Code 5276, an increased disability rating in excess of 50 percent is not possible. 38 C.F.R. § 4.71a. 5. Rating migraine headaches For the entire rating period on appeal from March 4, 2016, the Veteran is in receipt of a 30 percent disability rating for the service-connected migraine headaches and contends that an increased rating is warranted due to increased prolonged and incapacitating migraine headaches that cause him to take time off work on numerous occasions. See August 2019 correspondence. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable (0 percent) rating is warranted with less frequent attacks. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating is assigned for migraine headaches when a veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Although prostrating attacks are not defined in the rating criteria, medical guidance used by the VA Compensation Service suggests that such an attack causes one a lack of strength to the point of exhaustion. See VA Compensation Service's Medical Electronic Performance Support System. After review of all the evidence, the Board finds that weight of the lay and medical evidence is against finding that the service-connected migraine headaches have manifested in very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability, as required for an increased disability rating of 50 percent at any time during the rating period. VA examination reports throughout the relevant rating period on appeal show the Veteran reported experiencing migraine headaches that last less than a day in 2016, increasing to once a month in 2019. See March 2016 VA examination report; December 2016 VA examination report; March 2018 VA examination report. VA treatment records also reflect the Veteran reported experiencing headaches on and off, usually two to three times per day. See January 2019 VA treatment record; October 2019 VA treatment record. The March 2016, December 2016, and March 2018 VA examination reports, and VA treatment records, all reflect negative findings for very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability, which is required for an increased 50 percent rating under Diagnostic Code 8100. 38 C.F.R. § 4.124A. The histories presented by the Veteran for treatment purposes are highly probative because one is likely to present an accurate medical history in order to receive efficacious treatment. The record includes a July 2021 private examination report, offered for compensation purposes rather than for treatment, which show the Veteran reported experiencing very frequent, completely prostrating, and prolonged migraine headaches eight to ten times per month, lasting up to a full day at a time. The private examiner characterized the reported attacks as prostrating migraine, and non-migraine headache pain once every month, and purported to assess that the Veteran experiences very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic inadaptability. As the July 2021 private provider did not review any records and noted that the Veteran was not a regular patient, did not point to any factors to support such a finding, and the weight of the evidence of record does not support severe economic inadaptability, there is no rationale in support of the statement that the Veteran's migraine headaches are productive of severe economic inadaptability. During the July 2021 Board hearing, the Veteran testified that he experiences debilitating migraine headaches several times a week, which has caused him to miss about two or three days of work per month. The Veteran testified that he uses sick or annual leave when he needs to leave work due to migraine headache pain and that he has not lost salary, wages, or been denied a promotion due to the time he has taken off work due to migraine headaches, which demonstrates the migraine headaches have not manifested in migraine headaches that are productive of severe economic inadaptability as required for an increased 50 percent disability rating under Diagnostic Code 8100. 38 C.F.R. § 4.71a. Although the July 2021 private provider purported to find that the Veteran's migraine headaches are productive of severe economic inadaptability, the Board finds that the July 2021 private examination report is outweighed by the Veteran's own testimony that the migraine headaches have not resulted in severe economic inadaptability, the histories the Veteran provided for treatment purposes, and the overall disability picture based on multiple reported histories by the Veteran and other examiners' assessments during the rating period on appeal. The foregoing evidence demonstrates that for the entire rating period on appeal from March 4, 2016, the migraine headaches have not been manifested by very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. For this reason, the Board finds the weight of the evidence is against finding that the criteria for an increased disability rating in excess of 30 percent for migraine headaches have been met or more nearly approximated at any time during the rating period on appeal from March 4, 2016. 38 C.F.R. §§ 4.3, 4.7, 4.124A, Diagnostic Code 8100. REASONS FOR REMAND 6. Service connection for an acquired psychiatric disorder is remanded. The Veteran generally asserts that an acquired psychiatric disorder is the result of his service-connected disabilities. During the July 2021 Board hearing, the Veteran testified that he experiences symptoms of anxiety and depression due to his physical disabilities. The record does not include a VA medical opinion on the secondary service connection question (38 C.F.R. § 3.310) of whether the Veteran's current acquired psychiatric disorder was either caused or worsened beyond its normal progression by the other service-connected disabilities. Accordingly, remand will request a VA medical opinion. 7. Rating the right knee disability is remanded. 8. Rating the left knee disability is remanded. 9. Rating the left knee instability is remanded. 10. Rating the right ankle disability is remanded. 11. Rating the left ankle disability is remanded. The Veteran underwent a VA examination for the right and left knee disabilities and right and left ankle disabilities in March 2018 and July 2019 and underwent another VA examination in October 2020 for the right and left knee disabilities. The March 2018 VA examination reports show the Veteran reported experiencing episodes of flare ups in the knees and the ankles, but that the VA examiner was not able to determine whether pain, weakness, fatigability, or incoordination significantly limits functional ability in the knees or the ankles with repeated use over time or during episodes of flare ups due to speculation; the March 2018 VA examiner also did not describe the additional functional loss in ranges of motion and stated it was not possible to make such a determination without resorting to mere speculation. Similarly, the July 2019 VA examination report reflects the Veteran again reported experiencing episodes of flare ups on a daily basis. The July 2019 VA examiner again did not estimate any additional functional loss in ranges of motion in the knees or the ankles following repetitive use over time or during episodes of flare ups by stating a lack of basis for making such a finding. The October 2020 VA examination report for the right and left knee disabilities show the Veteran again endorsed experienced episodes of flare ups after walking too much. Although the October 2020 VA examiner found that pain and weakness significantly limit functional ability in both the right and left knees with repeated use over time and during episodes of flare ups, the VA examiner did not describe the additional functional loss in ranges of motion and stated it was not possible to make such a determination. The October 2020 VA examiner did not provide an explanation as to why additional functional loss in the right and left knees could not be estimated in ranges of motion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements. The Court explained that an examiner must do all that reasonably can be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in Sharp that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. The mere fact that the Veteran was not experiencing a flare-up at the time of the VA examination is insufficient rationale as to whether additional limitation of function due to flare-ups of the left knee could be determined. As such, remand for assessment of possible limitations of function due to flare-ups would help answer this question. The matters are REMANDED for the following actions: 1. Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below for the claimed acquired psychiatric disorder. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current acquired psychiatric disorder was caused by the Veteran's service-connected disabilities? b) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current acquired psychiatric disorder was worsened beyond its natural progression by the Veteran's service-connected disabilities? 2. Schedule a VA examination to assist in determining the current severity and functional impairment of the right and left knee disabilities and right and left ankle disabilities. The VA examiner should report the extent of right and left knee and right and left ankle symptoms in accordance with VA rating criteria. Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. (Continued on the next page) The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should put forth best efforts in estimating the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss based on all information procured from relevant sources, including the Veteran's lay statements. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.