Citation Nr: 21076248 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-50 094 DATE: December 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is dismissed. Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to an initial disability rating of 10 percent prior to December 10, 2019, for the Veteran's right heel spur is granted. Entitlement to an initial disability rating of 10 percent prior to December 10, 2019, for the Veteran's left heel spur is granted. Entitlement to a disability rating in excess of 10 percent for the Veteran's right heel spur is denied. Entitlement to a disability rating in excess of 10 percent for the Veteran's left heel spur is denied. A total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's service connection claims for an acquired psychiatric disorder, for right ear hearing loss, and for left ear hearing loss were granted in an August 2020 Rating Decision. 2. During the period on appeal, the Veteran's bilateral heel spurs were manifested by no more than moderate symptoms. CONCLUSIONS OF LAW 1. The criteria for dismissal of the issue of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. Prior to December 10, 2019, the criteria for a rating of 10 percent, but no more, for the Veteran's right heel spur were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 4. Prior to December 10, 2019, the criteria for a rating of 10 percent, but no more, for the Veteran's left heel spur were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 5. During the period on appeal, the criteria for a rating in excess of 10 percent for right heel spur 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 Code 5284. 6. During the period on appeal, the criteria for a rating in excess of 10 percent for left heel spur 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 Code 5284. 7. The criteria for entitlement to a rating of total disability based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1980 to June 1989. This appeal was remanded by the Board in July 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA examinations were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in September 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 1. Entitlement to service connection for an acquired psychiatric disorder 2. Entitlement to service connection for bilateral hearing loss The appeal as to the issues of entitlement to service connection for an acquired psychiatric disorder and for bilateral hearing loss is dismissed, as service connection was granted for these disabilities in August 2020. As such, there remains no case or controversy as to these issues. 38 U.S.C. § 7105. 3. Entitlement to an initial disability rating of 10 percent prior to December 10, 2019, for the Veteran's right heel spur. 4. Entitlement to an initial disability rating of 10 percent prior to December 10, 2019, for the Veteran's left heel spur. 5. Entitlement to a disability rating in excess of 10 percent for the Veteran's right heel spur. 6. Entitlement to a disability rating in excess of 10 percent for the Veteran's left heel spur. The Veteran is currently assigned a 10 percent disability rating under Diagnostic Code 8524 from December 10, 2019. Prior to December 10, 2019, she is assigned a non-compensable rating. The Veteran asserts that she is entitled to a compensable disability rating prior to December 10, 2019. From that date, her claim for a rating in excess of 10 percent remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). 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). Here, the Veteran's the Veteran's heel spurs are unlisted and rated by analogy. The Board finds that the weight of the evidence is in support of a rating of 10 percent prior to December 10, 2019, for the Veteran's right and left heel spur disabilities. From that date, a rating in excess of 10 percent is not warranted. The report of a July 2013 VA examination states that she experienced pain in her feet most of the time, that she described as 5-10/10. She reported that it hurt to walk on her feet, and that she could not do housework without having to stop and sit. The report states that the Veteran is able to walk approximately 20 minutes and stand approximately 10 minutes. The Veteran's reports of pain from 5-10/10, and her significantly limited ability to stand and walk, are more consistent with no worse than moderate symptoms. As such disability ratings of 10 percent, prior to December 10, 2019, for the Veteran's right and left heel spurs are warranted. From December 10, 2019, the Board likewise finds that the preponderance of the evidence is against ratings in excess of 10 percent for the Veteran's right and left heel spurs. The report of a December 2019 VA examination states that the Veteran experienced intermittent pain in her heels, that she was unable to stand or walk longer than 20 minutes, her sharp pain level was 5/10, and that she was only able to wear flip flops. Although the examiner stated the Veteran's symptoms were mild on both sides, the Veteran is in receipt of a 10 percent disability rating as of the date of this examination. The report of the Veteran's symptoms is more consistent with moderate symptoms; however, they do no more nearly approximate moderately severe symptoms, considering the description of mild symptoms by the examiner and the Veteran's report of intermittent pain. The Board acknowledges the Veteran's lay reports of symptoms with associated functional loss. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that she has intermittent pain, stabbing pain, cramping pain, and a limited ability to stand or walk does not result in symptoms more nearly approximating moderately severe symptoms. 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 v. Brown, 6 Vet. App. 259, 261-62 (1994); 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. Moreover, the Board recognizes that the rating schedule for musculoskeletal disabilities were amended, effective February 7, 2021. Here, the Veteran has been diagnosed with plantar fasciitis; however, she has not received surgical treatment for her bilateral foot disabilities, as such a higher rating under the Diagnostic Code for plantar fasciitis is not warranted. Furthermore, she has not been diagnosed with flatfoot, claw foot, or malunion or non-union of the tarsal or metatarsal bones; as such, Diagnostic Codes 5276-5283 are not applicable and a higher rating under other Diagnostic Codes is not warranted. In conclusion, the Board finds that the weight of the evidence supports finding that the Veteran's right and left heel spurs were manifested by moderate symptoms prior to December 10, 2019. However, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right or left heel spurs. 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. 7. Entitlement to a TDIU The Veteran asserts that she is entitled to a TDIU rating. A TDIU rating is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his or her education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In the present case, the Board finds that the Veteran meets the threshold requirements for a schedular award of a TDIU. During the period on appeal, the Veteran is service connected for major depressive disorder rated as 30 percent disabling prior to December 5, 2019, and 50 percent disabling from that date, degenerative disc disease of the thoracic spine rated at 20 percent disabling, radiculopathy of the left lower extremity rated as 20 percent disabling, tinnitus rated as 10 percent disabling, radiculopathy of the right lower extremity rated as 10 percent disabling, left heel spur and right heel spur, each rated as 0 percent disabling prior to December 10, 2019 and 10 percent disabling from that date, and bilateral hearing loss rated as non-compensable. Her combined rating is 70 percent from August 21, 2012, and 80 percent from December 5, 2019. Accordingly, she meets the schedular rating criteria for the period on appeal. The Board finds, further, that the evidence supports an award of a TDIU. Specifically, the evidence of record gives rise to a reasonable doubt as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. The record is conflicting as to the Veteran's educational history. In her Application for Compensation Based on Unemployability she reported 8 years of education. However, she reported to the December 2019 VA examiner that she graduated high school. She reported to the Social Security Administration that she completed 12th grade. Given multiple reports of completing high school the evidence supports finding that the Veteran has a high school education. She has a post military work history as a nursing assistant. She last worked in March 2011. In August 2020 the Agency of Original Jurisdiction requested the Veteran to provide employment information. She did not return that form. However, she reported to the December 2019 VA examiner that she had not worked since 2009. Although the evidence shows she reported last working in March 2011, this evidence demonstrates she has not worked during the period on appeal. The report of a November 2011 Residual Functional Capacity Questionnaire states that the Veteran was limited to sitting for one hour and standing/walking for less than one hour in an eight hour workday, and that the Veteran would be absent more than four times a month. It was opined that the Veteran had marked limitations in understanding and remembering very short and simple instructions, maintaining attention and concentration for extended periods, completing a normal workday without interruptions from psychological based symptoms, and in her ability to perform at a consistent pace with a standard number and length of breaks. The report of an April 2013 VA examination states that due to the Veteran's thoracolumbar disability she left her job as she could not stand on her feet. The examiner opined that the Veteran was limited in her ability to carry, lift objects, in how long she could stand, in how long she could sit and walk, and she would need to take frequent breaks due to her thoracolumbar disability. While a July 2013 VA examination states that the Veteran's foot disability did not impact her ability to work, a December 2019 VA examination report states that due to the Veteran's psychiatric disability, she would have occupational and social impairment with reduced reliability and productivity. Moreover, the report of a December 2019 VA examination states that the Veteran's feet disabilities result in her not being able to stand or walk longer than 15 minutes without a break. Accordingly, the evidence raises a reasonable doubt as to whether the Veteran is prevented from engaging in substantially gainful employment. Multiple medical opinions have suggested that the Veteran is capable of work that does not require extended standing. The Veteran's December 2019 VA examiner stated the Veteran could not stand or walk longer than 15 minutes. However, even employment performed primarily from a seated position requires walking to a degree that at times may require walking or standing for more than 15 minutes. The April 2013 VA examiner opined that she would need to take frequent breaks and was limited in her ability to sit, due to her thoracolumbar disability. Having to take frequent breaks would significantly limit her ability to perform substantially gainful employment, and a limited ability to sit would impact her ability to perform employment tasks from a seated position. Notably, these limitations are based on the Veteran's thoracic spine and feet disabilities and do not account for her radiculopathy of the lower extremities, which would further limit the Veteran's occupational abilities. By contrast, the November 2011 opinion suggests the Veteran would not be able to perform many of the mental requirements of substantially gainful employment as she had marked limitations in multiple areas. Indeed, given the combination of physical and psychiatric limitations the Veteran would not be able to engage in substantially gainful employment. Some of the opinions in the record do not contain limitations that would substantially impact the Veteran's ability to engage in substantially gainful employment. Nevertheless, the conflicting opinions at a minimum raise a reasonable doubt, and such doubt must be resolved in the Veteran's favor. Furthermore, the Social Security Administration has found the Veteran to be disabled. Although VA is not bound by that determination, and that finding was based at least in part on the Veteran's non-service connected disabilities such as a cervical disability, that finding nevertheless supports finding the Veteran cannot perform the requirements of substantially gainful employment. The Veteran has not worked since at least March 2011. Considering the combination of her service connected physical, and mental, disabilities the Veteran's service connected disabilities prevent her from engaging in substantially gainful employment. Based on the opinions of medical professionals related to the Veteran's limited work abilities and, considering the totality of the evidence, the Board is persuaded that an award of a TDIU is in order. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.3. 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. ZAHEER MASKATIA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate Counsel