Citation Nr: 21028370 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-51 518 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral pes planus and plantar fasciitis is granted. Entitlement to a higher initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether bilateral pes planus and plantar fasciitis were incurred in service. 2. For the entire rating period, PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral pes planus and plantar fasciitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a higher initial 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to October 1979. This matter comes to the Board of Veteran's Appeals (Board) from October 2015 and February 2017 rating decisions. In February 2020, the Veteran and L.C. testified before the undersigned Veterans Law Judge at a Board videoconference hearing. The hearing transcript is of record. The appeal was remanded in April 2020 for a VA examination and opinion, and to request outstanding Vet Center Records. The Board finds that the requested development has been completed and the Board may proceed with a decision. 1. Entitlement to service connection for bilateral pes planus and plantar fasciitis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends in an August 2017 notice of disagreement that she had the onset of foot pain in service when she was assigned boots with no support. She reported that she purchased a second set of more supportive jump boots and purchased shoe inserts. She reported that she wore a size 9 shoe when she entered service and a size 1012 at discharge. She reported seeing a podiatrist since discharge. The Veteran also submitted photographs of orthotics prescribed by her podiatrist in approximately 1980 and in 1988. The Board finds that the evidence is at least in equipoise on the question of whether currently diagnosed bilateral pes planus and plantar fasciitis had their onset in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). August 2017 and January 2021 VA foot examinations diagnosed bilateral pes planus and bilateral plantar fasciitis. Thus, the question is whether the current disability is related to service. The August 2017 VA examination did not include a medical opinion. While the January 2021 VA examiner opined that the Veteran's foot disabilities were less likely than not incurred in service, in her rationale, she noted the Veteran's report of having the onset of foot pain in service with field training exercises. These repeated activities led to bilateral fallen arches and subsequent plantar fasciitis. While complaints related to the feet were not shown in service treatment records or a separation examination report, the Veteran reported that bilateral foot pain was not severe upon release from active duty but progressed with time. The Veteran reported treatment at the Graduate Hospital in Philadelphia in 1980 or 1981 for orthotics, with photographs added to the record. The Veteran continued to see a podiatrist, and was currently treated with orthotics, supportive shoes, ice, and elevation of the feet. The VA examiner stated that although the history above was consistent with the progression of acquired pes planus and plantar fasciitis, unfortunately, there was no documentation in the medical record to conclusively support service connection. Here, while the VA examiner provided a negative opinion, she also reported a history of foot pain in service, fallen arches, and the subsequent progressive foot pain post-service, she also opined in her rationale that the Veteran's history was consistent with the progression of acquired pes planus and plantar fasciitis. The Board finds that the Veteran is competent to report foot pain in service, as well as fallen arches as evidenced by an increase in her shoe size during service. The Board finds that her reports are credible. She also submitted lay and photographic evidence to support her contention that she sought treatment for the feet shortly after service and was provided orthotics, which she continues to use for treatment pes planus and plantar fasciitis. Here, the Veteran has provided a credible history of foot symptoms in service and post service, and the January 2021 VA examiner opined that this history was consistent with the progression of acquired pes planus and plantar fasciitis. Accordingly, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral pes planus and plantar fasciitis are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral pes planus and plantar fasciitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a higher initial 70 percent rating for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In rendering a decision, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran is in receipt of a 50 percent rating for PTSD. A 50 percent disability rating is assigned 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 difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 A 70 percent disability rating is assigned for 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; obsessional rituals which interfere with routine activities; speech that is 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 worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A higher 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). In a March 2016 notice of disagreement and July 2021 statement, the Veteran contends that a 70 percent rating is warranted to PTSD. She contends that she exhibits obsessional and ritualistic patterns that interfere with her normal day, and contends in hearing testimony and lay statements from her friends that she is afraid in her own house, she is afraid of all men, and she checks and rechecks locks on doors and windows in her home and in her car. The Board finds that a higher 70 percent rating is warranted for PTSD for the entire rating period. An October 2015 VA examination identified the Veteran as having occupational and social impairment with reduced reliability and productivity. However, the examination report identified symptomatology consistent with both 50 and 70 percent ratings for PTSD to include depressed mood, anxiety, suspiciousness, sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. The Veteran's VA treating psychologist, who has been treating her for PTSD since 2014 completed a March 2015 Review PTSD Disability Benefits Questionnaire. She identified PTSD as being chronic and severe, and opined that PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. She noted that the Veteran was unable to engage in romantic relationships and was impaired in social relationships. Education and occupation became her primary coping skills. In addition to the PTSD symptoms listed in the October 2015 VA examination report, the March 2015 evaluation also noted symptoms of panic attacks occurring more than once a week, inability to establish and maintain effective relationships, and self-esteem issues and social anxieties. In a February 2021 opinion, the same VA psychologist asserted that the Veteran's symptoms were severe when they began treatment and continued to be severe. She noted symptoms of tremendous anxiety, nightmares, and poor sleep. The Veteran had to build courage to leave her home, and then again prior to leaving her car to return home after a day's work. She had constant anxiety, avoided having repairs done to her home, had not been in a relationship with a man, and had difficulties with friendships. VA treatment records and Vet Center records also document constant anxiety. (Continued on the next page) The weight of the evidence shows that PTSD signs and symptoms were more severe than indicated by the October 2015 VA examination. The Veteran had severe PTSD resulting in occupational and social impairment with deficiencies in most areas as shown by her VA treating psychologist in March 2015 and February 2021 opinions. PTSD symptoms included symptoms consistent with a 70 percent rating, to include suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous anxiety or panic; and difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Thus, the Board finds that a higher 70 percent rating is warranted for PTSD. The Board finds that the Veteran has not met or more nearly approximated the criteria for a higher 100 percent disability rating for PTSD. See 38 C.F.R. § 4.130. The medical and lay evidence of record does not identify both total occupational and social impairment due to psychiatric symptoms. Instead, the October 2015 VA examination shows that the Veteran was able to maintain employment as the office manager at a dental office since 2000, and she was living a roommate and friend, thus, maintained some social relationship. Moreover, mental status examinations associated with VA treatment records, show that the Veteran did not exhibit symptomatology of such severity as indicated for a 100 percent rating (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name). VA mental status examinations consistently show that the Veteran was clean and well kempt; she denied suicidal or homicidal thoughts or plans; speech was normal; there was no evidence of thought disorder; she denied auditory or visual hallucinations; and memory was intact. The Board finds, therefore, that the weight of the evidence shows that the degree of severity of the Veteran's psychiatric symptoms and functional impairment is not consistent with the next higher 100 percent rating. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.