Citation Nr: 21067698 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-25 350 DATE: November 5, 2021 ORDER Service connection for an acquired psychiatric disorder, claimed and/or characterized as bipolar disorder, anxiety, major depressive disorder, alcohol abuse, and posttraumatic-stress disorder (PTSD) is granted. Service connection for left foot numbness is denied. An initial disability rating in excess of 10 percent for a left foot disability is denied. A compensable initial disability rating for a left foot scar is denied. A 10 percent rating, but no more, for hypertension is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that his acquired psychiatric disorder is etiologically related to active duty service. 2. The Veteran's left foot numbness was not shown in service, or for many years thereafter, and is not otherwise etiologically related to active duty service. 3. The Veteran's left foot disability has been characterized by mild to moderate pain; moderately severe pain has not been shown. 4. The Veteran's left foot scar is not deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm), superficial and nonlinear, covering an area or areas of 144 sq. inches (929 sq. cm.) or greater, or unstable or painful. 5. Throughout the period on appeal, the Veteran's hypertension has characterized by the use of continuous medication to control; diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed and/or characterized as bipolar disorder, anxiety, major depressive disorder, alcohol abuse, and PTSD, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 2. The criteria for service connection for left foot numbness have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for Entitlement to an initial disability rating in excess of 10 percent for a left foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5279. 4. The criteria for compensable initial disability rating for a left foot scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7805. 5. The criteria for an initial disability rating of 10 percent, but no more, for service-connected hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2009 to May 2011. The Board acknowledges that the Veteran seeks service connection for an acquired psychiatric disorder that was either claimed as, or has been characterized as an acquired psychiatric disorder, claimed and/or characterized as bipolar disorder, anxiety, major depressive disorder, alcohol abuse, and PTSD. However, a service connection claim that describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Therefore, the Board will consider service connection for any acquired psychiatric disorder shown by the record. Service Connection The Veteran contends that service connection is warranted for an acquired psychiatric disorder and left foot numbness. Under the relevant laws and regulations, 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. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for an acquired psychiatric disorder, claimed or characterized as bipolar disorder, anxiety, major depressive disorder, alcohol abuse, and PTSD The Veteran contends that service connection for an acquired psychiatric disorder is warranted because the suicide of a friend, during his active duty service, caused his acquired psychiatric disorder. Based upon the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board determines that service connection is warranted for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. Initially, the Board notes that the clinical evidence, including an August 2018 treatment record, shows that the Veteran has been diagnosed with multiple psychiatric disorders, including major depressive disorder, bipolar disorder, anxiety, and alcohol dependence. Additionally, a January 2017 private treatment record reflects that a private psychologist diagnosed the Veteran with PTSD in accordance with the full diagnostic criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. Next, the Board concludes that the evidence is at least in equipoise concerning whether the Veteran's acquired psychiatric disorder is etiologically related to active duty service. Here, the service treatment records, in conjunction with the Veteran's competent and credible statements, demonstrate that he began experiencing symptoms of an acquired psychiatric disorder during his active duty service, and that his symptoms have continued since his active duty service. A January 2011 service treatment record reflects that he was assessed as having a depressive disorder, bipolar disorder, and alcohol dependence. Additionally, the report from his March 2011 separation examination reflects that his psychiatric evaluation was abnormal given his history of suicide attempts, alcohol abuse, and treatment for an acquired psychiatric disorder, and he reported that he experienced frequent trouble sleeping, was receiving counseling, experienced depression and excessive worry, was being evaluated for a mental condition, and attempted suicide in his March 2011 report of medical history. Given that he received treatment for an acquired psychiatric disorder during his active duty service and that he experienced numerous symptoms of an acquired psychiatric disorder during his active duty service, in conjunction with the Veteran's competent and credible statements, the Board concludes that the evidence is at least in equipoise that his acquired psychiatric disorder was incurred in or caused by his active duty service. The Board acknowledges the negative evidence includes the report from the December 2014 VA examination, where the examiner opined that the Veteran's major depression was less likely than not incurred in or caused by his active duty service because the report of medical history that the Veteran completed in connection with his entrance into service indicated that he drank and experienced depression prior to his active duty service and because the examiner saw no reason that his consumption of alcohol and depression would have been exacerbated by his time in service. The Board finds that this opinion is not entitled to significant probative weight because the examiner failed to address the Veteran's statements regarding the suicide of his friend and because the examiner did not address the significant treatment for an acquired psychiatric disorder that the Veteran received during his active duty service. Moreover, a January 2017 private treatment record reflects that a private psychologist opined that the Veteran's acquired psychiatric disorder was at least as likely as not incurred in or caused by his active duty service based upon a review of the evidence, in-person examination, and detailed discussion of the causes for and symptoms of the Veteran's acquired psychiatric disorder. Although the private psychologist did not provide a significant rationale, the Board finds that the private psychologist's opinion is entitled to more probative weight given the greater discussion of the development, worsening, and symptoms of the Veteran's acquired psychiatric disorder. By virtue of the foregoing, the Board concludes that the evidence is in relative equipoise and that the Veteran's claim seeking service connection for an acquired psychiatric disorder should be granted. 2. Entitlement to service connection for left foot numbness The Veteran contends that service connection is warranted for left foot numbness. Based upon the evidence of record, the Board determines that although the Veteran has a diagnosis of left foot numbness, service connection is not warranted because the preponderance of the evidence weighs against finding that it began during service or is otherwise etiologically related to active duty service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. Initially, the Board finds that the Veteran's service treatment records fail to establish that his current left foot numbness was incurred in or is otherwise etiologically related to his active duty service. Specifically, the Board finds that his service treatment records do not reflect that he sought treatment for, reported signs or symptoms of, or was diagnosed with left foot numbness. Additionally, the report from the Veteran's March 2011 separation examination reflects that neurological system was normal and that no left foot numbness was noted by the examining physician, and his March 2011 report of medical history reflects that he reported that he experienced numbness or tingling of the ring and pinky finger of his right hand, but did not report numbness or tingling of his left foot. The post-service evidence also does not indicate that the Veteran experienced continuous symptoms of left foot numbness. Here, the objective medical evidence does not show any symptoms of or treatment for left foot numbness until December 2017, more than six years after his separation from service. In fact, September 2014 and October 2017 treatment records reflect that he denied numbness or tingling. Accordingly, given the significant gaps between his separation from service in May 2011 and when he first sought treatment for left foot numbness and his denial of numbness and tingling in various treatment records, including the September 2014 and October 2017 treatment records, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. The Board acknowledges the Veteran's statements regarding the history of his symptoms of left foot numbness. Although he is competent to report that he experienced the symptoms of left foot numbness, he is not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau, 492 F.3d at 1377, 1377 n.4. Nevertheless, to the extent that the Veteran contends that his left foot numbness has persisted since service, the Board determines that the reported history of continued symptoms is not credible and does not establish the nexus element because, as discussed above, the evidence shows that he did not seek treatment for left foot numbness for more than six years after his separation from service, and that he denied left foot numbness on multiple occasions, including denials documented by the September 2014 and October 2017 treatment records. The fact that he did not seek treatment for these significant durations after his active duty service and his denial of numbness or tingling in various treatment records weighs against the Veteran's credibility to the extent that he asserts continuous symptoms of left foot numbness. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011). Moreover, the report from the Veteran's March 2011 separation examination, reflecting that the examining physician determine that his neurological system was normal, and his March 2011 report of medical history, reflecting that he did not report left foot numbness, further weigh against the credibility of any contention that he has experienced left foot numbness since his separation from service. Thus, a continuity of symptoms cannot be established based upon the Veteran's assertions. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between the Veteran's active duty service and his left foot numbness. Indeed, there is no objective medical evidence linking his left foot numbness to his active duty service. Further, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his left foot numbness. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his left foot numbness to his active duty service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his left foot numbness. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms, left foot numbness is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his left foot numbness was related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the claim seeking service connection for left foot numbness, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings The Veteran contends that an initial disability rating in excess of 10 percent is warranted for his left foot disability and that compensable initial disability ratings are warranted for his left foot scar and hypertension. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 3. Entitlement to an initial disability rating in excess of 10 percent for a left foot disability The Veteran contends that an initial disability rating in excess of 10 percent is warranted for his left foot disability. The Veteran is currently assigned an initial 10 percent disability rating for his left foot disability under 38 C.F.R. § 4.71a, DC 5279, which is the maximum schedular rating available for under DC 5279. The Board also will consider whether a higher rating, or additional ratings based upon disability of the left foot under other potentially relevant DCs, are warranted. Here, the Board notes that during the course of this appeal, the schedular criteria for evaluating plantar fasciitis under 38 C.F.R. § 4.71a, DC 5269 were amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim seeking an increased disability rating for his left foot disability was received prior to the effective date of the regulation changes, the Board must consider plantar fasciitis under both the old and revised criteria if applicable based upon the evidence of record. Id. Initially, the Board concludes that additional ratings are not warranted under DC 5269 (addressing plantar fasciitis), DC 5276 (addressing pes planus), 5277 (addressing weak foot, bilateral), 5278 (addressing pes cavus), 5280 (addressing hallus valgus), 5281 (addressing hallux rigidus), DC 5282 (addressing hammer toe), and DC 5283 (addressing malunion or nonunion of tarsal or metatarsal bones) because there is no evidence that the Veteran has any of these conditions. For example, the report from the January 2015 VA examination reflects that the examiner did not determine that the Veteran had plantar fasciitis, pes cavus, weak foot, claw foot, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. Further, the Veteran's treatment records do not show that he has any of these conditions. Next, with respect to a disability rating based upon limitation of motion, DC 5284 (addressing other foot injuries), the Board finds that the symptoms of the Veteran's left foot disability (metatarsalgia status post cellulitis and abscess surgery), are at worst moderate in nature, and not indicative of a moderately severe or severe foot injury under DC 5284. For example, the report from the January 2015 VA examination reflects that the examiner characterized the Veteran's left foot metatarsalgia symptoms as paint that was worse with ambulating and standing, and that it impaired running, walking long distances, and prolonged standing, but did not indicate that it prevented such activities. Further, the Veteran's treatment records do not reflect moderately severe pain, as they lack consistent reports of foot pain, or reports that foot pain has limited activities. Accordingly, the Board finds that the 10 percent rating the Veteran currently receives for his left foot disability under DC 5279 fully compensates for his level of symptomology and functional limitation. By virtue of the foregoing, the Board concludes that an initial disability rating in excess of 10 percent for the Veteran's left foot disability is not warranted. 4. Entitlement to a compensable initial disability rating for a left foot scar The Veteran contends that a compensable initial disability rating is warranted for his left foot scar. The Veteran is currently assigned an initial noncompensable disability rating for his left foot scar under 38 C.F.R. § 4.118, DC 7805. The Board notes that during the appeal period, VA amended its regulations governing skin disabilities effective August 13, 2018. However, the criteria for rating scars under applicable DC did not change. In order to warrant a compensable rating for a scar under DC 7805, the evidence must show that the scar is, or scars are: Deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm) (10 percent under DC 7801); Superficial and nonlinear, covering an area or areas of 144 sq. inches (929 sq. cm.) or greater; One or two in number that are unstable or painful (10 percent under DC 7804); or, One or two in number that are unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. After a review of the evidence of record, the Board concludes that a compensable initial disability rating for the Veteran's left foot scar is not warranted. Specifically, the report from the January 2015 VA examination reflects that the Veteran presented with a surgical scar on the dorsum of his left foot that measured 3.5 cm in length and 1.5 cm in width, and that the scar was stable, well-healed, and nontender. The examination report further reflects that the scar was not painful or unstable. Further, the treatment records do not evidence a larger size scar, or any complications associated therewith. Accordingly, based upon the evidence of record, the Board concludes that the Veteran is not entitled to a compensable rating for his left foot scar because the scar is not deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm), superficial and nonlinear, covering an area or areas of 144 sq. inches (929 sq. cm.) or greater, or unstable or painful. 5. Entitlement to a compensable initial disability rating for hypertension The Veteran contends that a compensable initial disability rating is warranted for his hypertension, which is rated pursuant to Diagnostic Code (DC) 7101. Under the applicable rating criteria, a 10 percent rating is applicable when evidence shows diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. A 20 percent rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Higher ratings require diastolic pressure of predominantly 120 or more. Id. Based on the evidence of record, the Board determines that a 10 percent rating, but no more, is warranted. Specifically, a January 2015 VA examination reflects that the Veteran had blood pressure readings of 131/101, 134/84, and 178/97. However his treatment plan for hypertension included taking continuous medication. On the basis of the need for continuous medication, a 10 percent rating is warranted. However, the January 2015 VA examination fails to show that a rating in excess of 10 percent is warranted, because it fails to show that his diastolic pressure was predominantly 100 or more, his systolic pressure was predominantly 160 or more, or that he was an individual with a history of diastolic pressure predominantly 100 or more in addition to requiring continuous medication for control of his hypertension. The Veteran's treatment records also do not show that a rating in excess of 10 percent is warranted. For example, and October 2014 treatment record shows blood pressure of 133/87, an April 2015 treatment record shows blood pressure of 121/71, an April 2016 treatment record shows blood pressure of 127/77, a March 2017 treatment record shows blood pressure of 120/74, and a May 2018 treatment record shows blood pressure of 134/71. By virtue of the foregoing, the Board concludes that a rating in excess of 10 percent for the Veteran's hypertension is not warranted. In considering the appropriate disability rating for the Veteran's left foot disability, left foot scar, and hypertension, the Board has also considered the statements from the Veteran that his left foot disability, left foot scar, and hypertension are worse than the rating she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through her senses, he is not competent to identify a specific level of disability of his scars according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's left foot disability, left foot scar, and hypertension has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the January 2015 VA examiners (as provided in the examination reports) directly address the criteria under which his left foot disability, left foot scar, and hypertension are evaluated, and the impact of his left foot disability, left foot scar, and hypertension, and the Board finds the examiners' assessments of greater probative weight. By virtue of the foregoing the Board concludes that service connection for an acquired psychiatric disorder is warranted, service connection for left foot numbness is not warranted, an initial disability rating in excess of 10 percent for a left foot disability is not warranted, and compensable initial disability ratings are not warranted for his left foot scar. However, a 10 percent rating is warranted for hypertension. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel