Citation Nr: 21029680
Decision Date: 05/14/21	Archive Date: 05/14/21

DOCKET NO. 14-24 988A
DATE: May 14, 2021

ORDER

Service connection for a low back disability, to include spinal stenosis, is granted.

An increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

An increased rating of 60 percent for gastroesophageal reflux disease (GERD) is granted.

An increased rating in excess of 30 percent for bilateral pes planus with hallux valgus and degenerative arthritis is denied.

REMANDED

Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded.

Entitlement to specially adapted housing is remanded.

Entitlement to special home adaptation is remanded.

FINDINGS OF FACT

1. The Veteran's current back disability, to include spinal stenosis, had its onset during his active duty service. See Service Treatment Records (STRs) dated October 1983, January 1986, July 1986, January 1992; VA Treatment Records (VATRs) dated July 1993, March 1995, August 2005, January 2008, October 2019.

2. Throughout the claim period, the Veteran's PTSD has been productive of no more than social and occupational impairment with deficiencies in most areas, including mood, work, family relations, judgment, and thinking. It has not been productive of total social and occupational impairment. See, e.g., August 2011 VA Psychiatric Examination; VATRs dated September 2013, September 2015, October 2019.

3. Throughout the claim period, the Veteran's GERD has been manifested by symptoms including pain, vomiting, hematemesis, and other symptoms productive of severe impairment of health. See August 2011 VA Examination.

4. Throughout the claim period, the Veteran's bilateral foot disability has been manifested by no more than marked deformity, accentuated pain on manipulation and use, and swelling. There is no evidence of marked pronation, extreme tenderness of plantar surfaces, marked inward displacement, and severe spasm of the tendo achilles on manipulation. See August 2011 VA Examination.

CONCLUSIONS OF LAW

1. The criteria for service connection for a low back disability, to include spinal stenosis, are met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

2. The criteria for an increased rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

3. The criteria for an increased rating of 60 percent for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346.

4. The criteria for an increased rating in excess of 30 percent for bilateral pes planus with hallux valgus and degenerative arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from October 1983 to October 1986, and in the Marine Corps from December 1988 to January 1993.

This case is before the Board of Veterans' Appeals (Board) on appeal from November 2011 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia.

SERVICE CONNECTION

1. A Low Back Disability

Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Here, the Veteran has a current diagnosis of spinal stenosis, which he contends had its onset with low back pain during his active duty service. See October 2019 VATR; September 2005 Veteran Statement. The Veteran's STRs reflect several instances of treatment for low back pain, and his post-service medical records contain intermittent attestation of a continuous history of complaints of and treatment for low back pain. See STRs dated October 1983, January 1986, July 1986, January 1992; VATRs dated July 1993, March 1995, August 2005 (Veteran reported a thirteen-year history of lower and upper back pain), January 2008, October 2019.

(The Veteran was scheduled to be afforded a VA examination and medical nexus opinion in support of this claim in November 2019; however, the record indicates that he cancelled the examination. See November 2019 VA Examination Record. Therefore, the Board will decide this claim based on the available evidence of record, summarized above. See 38 C.F.R. § 3.655.)

As noted, that evidence indicates that the Veteran has had low back pain from the time of service to the present, diagnosed by July 2005 as spinal stenosis. Therefore, resolving doubt in favor of the Veteran, as is required by law, the Board finds that the Veteran's current low back disability, to include spinal stenosis, had its onset during his active duty service. See 38 C.F.R. § 3.1303(a). Accordingly, service connection for a low back disability, to include spinal stenosis, is warranted.

INCREASED RATINGS

1. PTSD

The Veteran's PTSD is currently rated as 70 percent disabling under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a rating in excess of 70 percent (100 percent) is warranted for total occupational and social impairment, due to 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; and memory loss of names of close relatives, one's own occupation, or one's own name.

Here, the Board finds that the criteria for a schedular rating higher than 70 percent are not met, because the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, or duration.

(The Veteran was scheduled to be afforded a VA examination in support of this claim in November 2019; however, the record indicates that he cancelled the examination. See November 2019 VA Examination Record. Therefore, the Board will decide this claim based on the available evidence of record, summarized below. See 38 C.F.R. § 3.655.)

For example, the Veteran has not reported grossly inappropriate behavior or intermittent inability to perform activities of daily living, nor has such been observed. See August 2011 VA Examination (no difficulty with activities of daily living); VATRs dated September 2013, September 2015, October 2019.

The Veteran has also reported keeping functional family relationships, including a good relationship with his two stepchildren, although he reported his relationship with his wife was "difficult." See August 2011 VA Examination; October 2019 VATR (Veteran denied difficulty interacting with family or significant others).

In addition, VA care providers throughout the claim period noted that the Veteran exhibited normal appearance and hygiene and orientation to person, time, and place. See VATRs dated September 2013, September 2015, October 2019.

The Board acknowledges that the record reflects reports of persistent delusions and hallucinations, including the belief that the Veteran was being followed or watched, and visual and auditory hallucinations of shadows and voices. See August 2011 VA Examination; VATRs dated September 2013. However, other records contradict these reports. See VATRs dated September 2015 (no evidence of perceptual disturbance), October 2019 (Veteran reported no history of hallucinations).

VA regulations provide that "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7

Here, even accepting the presence of persistent delusions and hallucinations, the Veteran's disability picture more nearly approximates the criteria for the lower rating; that is, 70 percent. As expounded above, the record contains no evidence of any other symptoms indicative of total occupational and social impairment, such as 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

Therefore, the Board finds that the Veteran's PTSD has not been manifested by total occupational and social impairment at any point throughout the claim period. Accordingly, an increased rating in excess of 70 percent is not warranted.

2. GERD

The Veteran's GERD is currently rated as 10 percent disabling throughout the claim period, under Diagnostic Code (DC) 7346. Under this code, a rating of 30 percent requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health.

A rating of 60 percent is also available under DC 7346 for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

The Veteran has been afforded one VA examination in support of this claim during the claim period, in August 2011. 

(The Veteran was scheduled to be afforded another VA examination in support of this claim in November 2019; however, the record indicates that he cancelled the examination. See November 2019 VA Examination Record. Therefore, the Board will decide this claim based on the available evidence of record, summarized below. See 38 C.F.R. § 3.655.)

The August 2011 VA examination noted GERD with symptoms of heartburn (pyrosis), chest pain, dysphagia, epigastric pain, scapular (upper back/shoulder) pain, arm pain, hematemesis, reflux and regurgitation, choking, and stomach pain. The examiner noted that symptoms were constant and resulted in "less daily activity."

Although there is no evidence throughout the claim period of material weight loss, moderate anemia, or severe impairment of health, in light of the findings of pain, hematemesis, vomiting (regurgitation), and functional impairment, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a 60 percent rating. Accordingly, an increased rating of 60 percent is warranted throughout the claim period.

3. Bilateral Foot Disabilities

The Veteran's bilateral foot disabilities, to include bilateral pes planus with hallux valgus and degenerative arthritis, are currently rated as 30 percent disabling, under DC 5276. Under this code, a rating in excess of 30 percent requires "pronounced" pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.

The Veteran has been afforded one VA examination in support of this claim during the claim period, In August 2011. 

(The Veteran was scheduled to be afforded another VA examination in support of this claim in November 2019; however, the record indicates that he cancelled the examination. See November 2019 VA Examination Record. Therefore, the Board will decide this claim based on the available evidence of record, summarized below. See 38 C.F.R. § 3.655.)

The August 2011 VA examination noted bilateral pes planus, hallux valgus, and degenerative arthritis with symptoms of pain aggravated by physical activity, stiffness, swelling, and fatigue. There is no evidence throughout the claim period of marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the achilles tendon on manipulation. Therefore, an increased rating in excess of 30 percent is not warranted.

REASONS FOR REMAND

1. Entitlement to SMC Based on the Need for Regular Aid and Attendance, Specially Adapted Housing, and Special Home Adaptation

The Veteran's claims for SMC based on the need for regular aid and attendance, specially adapted housing, and special home adaptation, were all denied in a May 2012 rating decision. That decision rested in part on a December 28, 2011 Housebound Examination.

Upon initial review, the Board discovered that the claims file contained a housebound examination dated December 28, 2011, but belonging to a different Veteran. That examination has since been removed from the file, but administrative requests have not succeeded in locating this Veteran's December 28, 2011 housebound examination.

Therefore, a remand is necessary to obtain the Veteran's December 28, 2011 housebound examination. It is not clear from the record whether the examination in question is a VA or private examination. Therefore, efforts should be taken both to seek the examination from the Veteran and to determine whether the examination is already in VA's possession.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA medical records and associate them with the claims file, to include in particular a December 28, 2011 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance.

2. Contact the Veteran to request a copy of a December 28, 2011 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance.

Ask the Veteran to complete a VA Form 21-4142 for the medical professional who performed the December 28, 2011 examination. Make two requests for the authorized records from the identified medical professional, unless it is clear after the first request that a second request would be futile.

3. If unable to ascertain whether the Veteran indeed underwent examination on December 28, 2011, schedule him for an examination for the purpose of ascertaining whether his service-connected disabilities render him housebound or in need of the regular aid and attendance of another person. 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. Timmerman, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.