Citation Nr: 21012235 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-08 134 DATE: March 3, 2021 ORDER Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to the service-connected lumbar spine disability or, in the alternative, secondary to the service-connected major depressive disorder, to include medications taken for treatment, is denied. Entitlement to an initial rating in excess of 30 percent prior to February 26, 2016, for an acquired psychiatric disorder, to include major depressive disorder, is denied. Entitlement to an initial 70 percent rating, but no higher, from February 26, 2016 and thereafter for an acquired psychiatric disorder, to include major depressive disorder, is granted. FINDINGS OF FACT 1. The probative evidence of record does not establish that the Veteran’s bilateral plantar fasciitis is related to her period of active duty service, or the result of or aggravated by the Veteran’s service-connected lumbar spine disability, or the result of or aggravated by the Veteran’s service-connected depressive disorder, to include medications taken as treatment. 2. The evidence of record indicates that, prior to February 26, 2016, the Veteran’s symptoms of major depressive disorder were such that they caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. 3. From February 26, 2016 and thereafter, giving the Veteran the benefit of the doubt, it is ascertainable that the Veteran’s symptoms of major depressive disorder are such that they cause social and occupational impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral plantar fasciitis, to include as secondary to the service-connected lumbar spine disability or medication due to service-connected depressive disorder, to include medications taken for treatment, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303, 3.310. 2. The criteria for an initial rating in excess of 30 percent prior to February 26, 2016 for an acquired psychiatric disorder, to include major depressive disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for an initial 70 percent rating, but no higher, from February 26, 2016 and thereafter for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from October 1997 to April 1999. In May 2016 and April 2018, the Board remanded the claims on appeal for further development. In April 2018, the Board issued a decision which denied the claim of an initial rating in excess of 30 percent for an acquired psychiatric disorder on appeal. The Veteran filed a timely appeal to the Court of Appeals for Veterans’ Claims (Court). In a July 2019 Memorandum Decision, the Court remanded the appeal to the Board for further development. In February 2020 and May 2020, the Board remanded the appeal for further development. 1. Service connection for bilateral plantar fasciitis, to include as secondary to the service-connected lumbar spine disability or, in alternative, service-connected depressive disorder, to include medications taken The Veteran contends that her bilateral plantar fasciitis is due to her period of service, to include as secondary to lumbar spine disability, or, in the alternative, medication due to the service-connected acquired psychiatric disorder. The question for the Board is whether the Veteran has a current disability that began during active duty service or is at least as likely as not related to an in-service injury, event, or disease or to a service-connected disability. The Board concludes that, while there is evidence of a current diagnosis of bilateral plantar fasciitis, the preponderance of the evidence weighs against finding that the plantar fasciitis began during active duty service or is otherwise related to an active duty service injury, event, or disease or a service-connected disability. The Board notes that in an April 2018 Board decision, the Board found that the January 2010 examination, October 2016 addendum opinion, and April 2017 addendum opinion inadequate for the purpose of adjudicating the claim. Therefore, no further analysis of these opinions is necessary. In a July 2018 VA opinion, the examiner opined that it is less likely than not that the Veteran’s bilateral plantar fasciitis is due to her period of active duty service. The examiner explained that the Veteran was diagnosed with bilateral plantar fasciitis in 2010. The examiner stated that this means that the Veteran’s condition was diagnosed 10 years after having been released from active service. The examiner further noted that the Veteran’s service treatment records are silent for bilateral plantar fasciitis during active service. For these reasons, the examiner concluded that the Veteran’s plantar fasciitis condition is not related to military service because it was incurred several years after the last day of active service. The examiner also opined that it is less likely than not that the Veteran’s bilateral plantar fasciitis is caused by, the result of, or aggravated by the Veteran’s service-connected lumbar spine condition. The examiner explained that the lumbar and feet conditions are not related “pathophysiologycally” or anatomically to each other. The examiner noted that the Veteran presents with multiple health issues such as morbid obesity and major depression (medications used for depression) which could also cause her to alter her gait pattern, causing the condition claimed. The examiner reported that he was unable to locate peer-reviewed studies to support the fact that bilateral plantar fasciitis is related to or aggravated by an actual lumbar condition. The examiner stated that there is no objective evidence of antalgic gait pattern, pain with weight bearing or weight shifting during ambulation reported on VA examinations done in June 2010, January 2011, May 2012 or October 2016. The examiner further noted that there are a number of causes for plantar fasciitis, to include incorrect shoes, overload of physical activity or exercises, excessive running, jumping, or other activities that can easily place repetitive or excessive stress on the tissue and lead to tears and inflammation, resulting in moderate to severe pain. The examiner further opined that it is less likely than not that the Veteran’s bilateral plantar fasciitis is caused by or the result of the Veteran’s service-connected acquired psychiatric disorder, to include medications taken as treatment. The examiner stated that he was unable to locate peer-reviewed studies to support the fact that bilateral plantar fasciitis is related to a subjective complaint of altered gait pattern caused by the service connected depressive disorder, to include medications used to treat her service-connected depressive disorder. The examiner noted that while there was subjective complaint of altered gait, there was no objective evidence of antalgic gait pattern, pain with weight bearing or weight shifting during ambulation during the June 2010, January 2011, May 2012 or October 2016 VA examinations. The examiner further noted that the Veteran used to work in a job that required her to be in a standing position for a prolonged time with limited period of rest for more than 5 years after having been released from active service. The examiner stated that bilateral foot conditions are more likely than not caused by multiple medical problems, obesity and/or occupational history, all of which predispose to develop plantar fasciitis. The Board finds the July 2018 VA medical opinion regarding service connection on a direct basis and secondary to the Veteran’s lumbar spine disability to be highly probative in nature. The examiner’s use of the Veteran’s medical history, lay statements and medical knowledge provides highly relevant information regarding the etiology and nature of the Veteran’s bilateral plantar fasciitis condition. In an October 2020 VA addendum opinion, the examiner opined that it was less likely than not that the Veteran’s plantar fasciitis is caused by or the result of the Veteran’s service-connected acquired psychiatric disorder, to include medications taken as treatment. The examiner explained that the medical literature does not support that an etiologic link exists between medications and plantar fasciitis. Citing medical literature, the examiner stated that plantar fasciitis is the result of collagen degeneration of the plantar fascia at the origin, the calcaneal tuberosity of the heel as well as the surrounding perifascial structures. The examiner went on to state that this is often an overuse injury that is primarily due to a repetitive strain causing micro-tears of the plantar fascia but can occur as a result of trauma or other multifactorial causes. The examiner, citing medical literature, noted that there are many risk factors which contribute to plantar heel pain, including but not limited to, loss of ankle dorsiflexion (talocrural joint, deep or superficial posterior compartment), pes cavus or pes planus deformities, excessive foot pronation dynamically, impact/weight-bearing activities such as prolonged standing, running, improper shoe fit, elevated BMI, diabetes mellitus (and/or other metabolic condition), leg length discrepancy, or tightness and/or weakness of gastrocnemius, soleus, Tendo achilles tendon and intrinsic muscle. The examiner also opined that it was less likely than not that the Veteran’s bilateral plantar fasciitis was aggravated beyond the natural progression by the Veteran’s service-connected depressive disorder, to include medications taken as treatment. The examiner noted that there was no abnormal gait at the current evaluation, and the Veteran did not mention during the interview any relation about gait complaint due to medical prescription that would make the Veteran unable to perform basic tasks in her employment or affect motor skills such as driving. The examiner further noted that the Veteran’s interview did not manifest any medication as the etiology of her gait complaint. The examiner reported that there is no medical record evidence that any medication resulted in the Veteran’s abnormal gait which aggravated her plantar fasciitis complaint. The Board finds this opinion to be highly probative in nature due to the use of medical literature and the Veteran’s medical history in explaining the lack of relationship regarding the Veteran’s bilateral plantar fasciitis and service-connected depressive disorder, to include medications taken for treatment. After review of the record, the Board finds that the probative evidence of record weighs against a finding of service connection for bilateral plantar fasciitis, to include as secondary to service-connected lumbar spine disability or, in the alternative, as secondary to service-connected depressive disorder, to include medication taken as treatment. The evidence does not provide a nexus between the Veteran’s claimed plantar fasciitis and her period of active duty service. Moreover, the evidence indicates that the Veteran’s bilateral plantar fasciitis is not related to, the result of or aggravated by the Veteran’s service-connected lumbar spine disability. Further, the evidence indicates that the Veteran’s bilateral plantar fasciitis is not related to, the result of or aggravated by the Veteran’s service-connected depressive disorder, to include medications taken. As such, service connection for bilateral plantar fasciitis is not warranted. While the Veteran believes that her bilateral plantar fasciitis is related to her service-connected lumbar spine disability or, in the alternative, depressive disorder, to include medications taken as treatment, the Veteran is not competent to provide an etiology opinion on bilateral plantar fasciitis, as this is a complex medical matter. Therefore, her statements are afforded low probative weight. The Board reiterates that the preponderance of the evidence weighs against finding that her bilateral plantar fasciitis is due to, the result of, or aggravated by her active duty service or service-connected disabilities. 2. A rating in excess of 30 percent prior to November 20, 2017, and in excess of 70 percent from November 20, 2017 and thereafter for an acquired psychiatric disorder, to include major depressive disorder The Veteran contends that her acquired psychiatric disorder, to include depressive disorder, is such that a rating in excess of 30 percent prior to November 20, 2017, and in excess of 70 percent from November 20, 2017 and thereafter is warranted. Under Diagnostic Code 9411, which are governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily), with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id. Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Turning to the evidence, in an August 2009 VA examination, the Veteran reported that she was taking anti-depressant medication, and she did not experience any side-effects. The Veteran reported symptoms of anxiety, moderate irritability with a frequency of four times a week, moderate concentration difficulties, and mild sleeping disturbances. The examiner observed that the Veteran appeared well groomed, with unremarkable speech and good judgment. The examiner stated that the Veteran was cooperative and had a good mood, and appeared well oriented to person, place and time. The examiner noted that the Veteran denied experiencing delusions or hallucinations. The examiner also reported that she did not experience obsessive or ritualistic behavior, or panic attacks. The examiner stated that the Veteran denied having homicidal or suicidal thoughts. The examiner observed that the Veteran had normal remote, recent, and immediate memory. The examiner reported that the Veteran had good impulse control and demonstrated no significant effects on her motivation or mood. The Veteran reported that she worked full-time and that she did not miss any time from work due to symptoms of her depressive disorder. The examiner reported that the Veteran’s depressive disorder symptomatology was not severe enough to interfere with occupational and social functioning. In a February 2016 private examination, the examiner reported that Veteran had experienced difficulties in handling anger, and that her behavior had impacted her performance in social activities and reduced her support network. The examiner also reported that the Veteran had no relevant marital or family history but did encounter problems at work as a result of her anxiety, shortened frustration tolerance, and poor impulse control. The examiner endorsed symptoms of depressed mood, anxiety, infrequent panic attacks, chronic sleep impairment, difficulty in understanding complex commands, impaired judgment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The examiner further noted that the Veteran experienced marked obsessive thoughts and self-criticism that affects her concentration and deteriorates her self-esteem. The examiner summarized the Veteran’s occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. In an August 2016 VA examination, the Veteran reported that she was married and working full-time in sales. The Veteran also reported that she took care of seven dogs and worked during the day. The Veteran stated that she enjoyed going to the beach, going out with friends, and attending Sunday church services. The Veteran reported that her energy was low but that she was able to perform her work duties, but she was mistrustful of some of her co-workers. The Veteran reported that she saw a psychiatrist on a monthly basis, and that she was taking medication for depression. She reported that she had recently received a diagnosis of breast cancer, which was causing her increased feelings of sadness, anxiety, insomnia, and irritability, but that her wife was emotionally supportive. The examiner observed that the Veteran had adequate hygiene and was cooperative. The examiner stated that the Veteran was spontaneous and established good eye contact immediately. The examiner also stated that the Veteran was alert and aware of the interview situation and in contact with reality. The examiner noted that there was no evidence of psychomotor retardation or agitation. The examiner reported that her speech was clear with appropriate volume and goal directed. The examiner observed that her mood is depressed/anxious and affect appropriate to mood. The examiner stated that the Veteran is in full contact with reality, and there is no evidence of delusion and no evidence of hallucinations. The examiner stated that the Veteran denied suicidal or homicidal ideations or plans at present. The examiner stated that she is fully oriented. The examiner noted that her abstraction capacity is normal, and her cognitive functions are preserved. The examiner also noted that her insight and judgment are fair. The examiner endorsed symptoms of depressed mood, anxiety, and disturbances of motivation and mood. The examiner summarized the Veteran’s level of occupational and social impairment as productive of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a November 2017 private examination, the examiner stated that the Veteran was experiencing increased anxiety and worry due to her breast cancer and pending surgery. The examiner also noted that the Veteran was troubled by her mother’s medical conditions and poor family support. The examiner stated that she had been frustrated about her occupational performance. The examiner noted that the Veteran has disturbing thoughts about an unforeseen future, particularly with prognosis and physical limitation due to back pain. The examiner stated that the Veteran had continuous major depressive disorder with recurrent episode of anxiety and less tolerance, which affects her work and social interaction. The examiner summarized the Veteran’s social and occupational impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a January 2020 private medical examination, the examiner reported that the Veteran has maintained active treatment since March 2014. The examiner noted that she has been compliant to treatment and appointments. The examiner stated that the Veteran has continuous major depressive disorder with recurrent episodes of anxiety, less tolerance that has been affecting her work and social interaction due to her cancer diagnosis, her mother’s medical condition and poor family support, and frustrations about her occupational and social performance with chronic low back pain. The examiner endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or work like setting, and an inability to establish and sustain effective relationships. The examiner summarized the Veteran’s occupational and social impairment as social and occupational impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a December 2020 VA examination, the Veteran reported that she has worked full time since 2003. The Veteran reported that she was isolated due to coronavirus, but still working, taking care of her seven dogs, maintaining her relationship with her wife, and taking and supervising her own physical and mental medication. The Veteran stated that she has seen a psychiatrist for the last eight years. The Veteran reported the use of medication to treat her depression and denied any side effects. The examiner observed that the Veteran had adequate hygiene and was cooperative. The examiner stated that the Veteran was spontaneous and established good eye contact immediately. The examiner also stated that the Veteran was alert and aware of the interview situation and in contact with reality. The examiner noted that there was no evidence of psychomotor retardation or agitation. The examiner reported that her speech was clear with appropriate volume and goal directed. The examiner observed that her mood is depressed/anxious and affect appropriate to mood. The examiner stated that the Veteran is in full contact with reality, and there is no evidence of delusions and no evidence of hallucinations. The examiner stated that the Veteran denied suicidal or homicidal ideations or plans at present. The examiner stated that she is fully oriented. The examiner further noted that the Veteran’s insight and judgment were fair. The examiner endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner remarked that since the February 2016 examination to the present time, the Veteran’s neuropsychiatry condition had not changed and was still in chronic and stable condition. The examiner also stated that, in regard to the January 2020 private medical examination, the claimed worsening of signs and symptoms were not sustained based on the current examination. The examiner reported that the Veteran’s mental medication had not changed, and the Veteran had no mental decompensation nor inpatient mental treatment nor partial hospitalization, and no change in work hours. The examiner noted that the Veteran denies alcohol nor drugs used or abused, which, in cases of depression, are sometimes used as self-medication. The examiner reported that the Veteran has had a cancer diagnosis and status post mastectomy since 2016 without complication nor metathesis. The examiner noted she was still under cancer treatment without complication. The examiner noted that the Veteran is working full time, supporting her family without clear mental change, takes and supervises her medication, and takes care twice a day of her seven dogs. The examiner opined that the description in the January 2020 examination was not found in the present examination. After review of the record, the Board finds that a rating in excess of 30 percent prior to February 26, 2016, is not warranted. Prior to this time, the evidence indicates that the Veteran experienced symptoms such as depressed mood, anxiety, and panic attacks that were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily. The evidence of record does not show that the Veteran’s symptoms warrant a 50 percent rating during this period. The evidence does not indicate that the Veteran’s symptoms manifested as occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships The evidence of record does not show that the Veteran’s symptoms warrant a 70 percent rating during this period. The evidence does not indicate that the Veteran’s symptoms manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), and/or inability to establish and maintain effective relationships. From February 20, 2016 and thereafter, a 70 percent rating, but no higher, is warranted for service-connected depressive disorder. During this period, it is ascertainable that the Veteran experienced symptoms of difficulty in understanding complex commands, impaired judgment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Board notes that the VA examiner and the Veteran’s private examiner disagree in regard to the Veteran’s level of social impairment. The Board finds both the VA and private medical opinions to be credible. Giving the benefit of the doubt to the Veteran, the Board finds that her symptoms cause social and occupational impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Therefore, a 70 percent rating is warranted since February 20, 2016. The evidence of record does not show that the Veteran’s symptoms warrant a 100 percent rating at any point during the appeal period. While the Veteran’s social functioning is impaired, she has not been found to be totally socially disabled, as she reported spending time with her wife and friends. Moreover, the Veteran is not totally occupationally impaired, as she has maintained a full-time job since 2003. The record also does not establish that the Veteran has gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, or disorientation to time or place, memory loss for names of close relatives, own occupation or own name, or persistent delusions or hallucinations. Moreover, the record does not establish that the Veteran is an imminent danger to harm herself or others. Therefore, a 100 percent rating is not warranted for the entire appeal period. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.