Citation Nr: 21040445 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-46 384 DATE: July 3, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for bilateral pes planus, bilateral degenerative arthritis, and right metatarsalgia and hallux valgus (bilateral foot disability) prior to May 8, 2019, and in excess of 30 percent thereafter, is denied. Entitlement to a separate 10 percent rating for metatarsalgia is granted. Entitlement to an initial disability rating of 50 percent for major depressive disorder with cannabis use disorder (MDD) is granted. FINDINGS OF FACT 1. Prior to May 8, 2019, the Veteran's bilateral foot disability manifested in, at worst, symptoms equivalent to moderate bilateral flatfoot. 2. On and after May 8, 2019, the bilateral foot disability manifested in, at worst, symptoms equivalent to severe bilateral flatfoot. 3. Throughout the period on appeal, the Veteran had metatarsalgia with symptoms distinct from her other foot disabilities. 4. Throughout the period on appeal, the Veteran's MDD manifested in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent prior to May 8, 2019, and in excess of 30 percent thereafter, for a bilateral foot disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 2. The criteria for a separate 10 percent rating for metatarsalgia are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5279. 3. The criteria for entitlement to an initial disability rating of 50 percent for MDD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2010 to March 2011, to include service in Southwest Asia. She also served on active duty for training from October 2008 to April 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) regional office, which is the agency of original jurisdiction. The Board remanded these matters for further development in November 2018. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 background 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). 1. Entitlement to an initial disability rating in excess of 10 percent for a bilateral foot disability prior to May 8, 2019, and in excess of 30 percent thereafter. 2. Entitlement to a separate compensable disability rating for metatarsalgia. The Veteran's left foot disability is currently assigned a 10 percent disability rating prior to May 8, 2019, and a 30 percent disability rating thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. This appeal stems from the Veteran's initial claim for service connection. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; 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. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran first underwent VA examination in connection with this claim in August 2014, at which time the examiner diagnosed bilateral mild pes planus (flat feet) and metatarsalgia, as well as mild hallux valgus of the right foot. The Veteran reported that, with respect to her right foot, she experienced a dull pain while walking long distances and a sharp pain at night. With respect to the left foot, she reported that it was less painful than the right, but that she had a sore heel and a dull pain in the toes. She described the right foot pain as an 8 on a scale of 1 to 10, and the left foot pain as a 4. Her pain was aggravated by running, laying down, or sitting, and she stated that her feet were mainly aggravated with no pressure on them, such as with sitting down. She denied flare-ups that limited mobility and indicated that walking less than one mile did not aggravate her feet. The Veteran did not report having any functional loss or impairment of the feet other than pain on use. The examiner found no evidence that pain was accentuated on manipulation, of swelling on use, or of characteristic calluses. Furthermore, the Veteran's feet did not demonstrate extreme tenderness to the plantar surfaces, decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity, marked pronation, inward bowing of the achilles tendon, or marked inward displacement or severe spasm of the achilles tendon on manipulation. The weight-bearing line did not fall over or medial to the great toe. The examiner opined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability when the feet were used repeatedly over a period of time, and that the foot disabilities would not impact the Veteran's ability to perform any occupational tasks. The Veteran again underwent VA examination in May 2019. The Veteran reported current symptoms including tightness at the heel and ankle. She described the functional impact of her disabilities as preventing her from exercising for consecutive days or from standing at times due to numbness in her feet, as well as swelling. She also reported pain when riding a bike and pain in the heels, and described her flare-ups as consisting of the same symptoms. She used arch supports but stated that they did not provide relief. The examiner noted pain on manipulation of the feet and accentuated on use as well as decreased longitudinal arch height on weight-bearing bilaterally. There was no indication of swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, marked deformity, marked pronation, inward bowing of the achilles tendon, or marked inward displacement and severe spasm of the achilles tendon. The weight-bearing line did not fall over or medial to the great toe. The examiner opined that the Veteran's right foot hallux valgus resulted in mild or moderate symptoms and that the Veteran continued to suffer from bilateral metatarsalgia. Pain was noted upon physical examination and pain on movement and interference with sitting contributed to functional loss. Pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups with repeated use over time; specifically, the Veteran's disability limited her ability to sit for longer than an hour. Treatment records and lay statements throughout the period on appeal reflect findings consistent with those noted on examination. For example, in May 2019, the Veteran stated that she had ongoing pain in both feet for which she was undergoing physical and electro-therapy. She reported using antiinflammatory medications, topical creams, and pain relievers, but that chronic swelling and soreness affected her ability to drive, stoop, and kneel repeatedly. Private podiatry records reflect complaints similar to those noted on examination, including pain and stiffness. See Village Podiatry records, September 2014. Upon review, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left foot disability prior to May 8, 2019, and in excess of 30 percent thereafter, pursuant to Diagnostic Code 5276. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, numbness, and difficulty sitting for long periods of time. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the Veteran's statements regarding flare-ups, specifically that the flare-ups consist of essentially the same symptoms she experiences daily, would not result in symptoms more nearly approximating severe unilateral or bilateral acquired flatfoot prior to May 8, 2019, or bilateral pronounced flat foot thereafter. In that regard, prior to May 8, 2019, the evidence does not reflect severe or pronounced unilateral or bilateral flatfoot. There is no objective evidence of marked deformity (such as pronation), accentuated pain on manipulation and use, swelling on use, or characteristic callosities. Throughout the period on appeal, there is no indication of pronounced flatfoot with marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation. While the Veteran did suffer from pain, particularly when sitting down, the evidence is against a finding that the Veteran's bilateral flatfoot was worse than moderate prior to May 8, 2019, or worse than severe thereafter. 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). 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)). 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 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. Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. However, the Veteran does have other service-connected disabilities with distinct manifestations, specifically right hallux valgus and bilateral metatarsalgia. In this regard, Diagnostic Code 5280, relevant to hallux valgus, is not for application in this case. Diagnostic Code 5280 provides for a 10 percent rating for unilateral hallux valgus only if it has been operated on with resection of the metatarsal head, or when it is severe, if the severity is equivalent to the amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. The evidence does not reflect that the Veteran has undergone foot surgery. Further, the severity of her hallux valgus has been noted to be mild or moderate, at worst. Accordingly, the evidence is against a finding that a separate rating for hallux valgus is warranted. Conversely, the Board finds that a separate 10 percent rating may be assigned for bilateral metatarsalgia pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5279. This is the maximum rating for this condition and may be assigned whenever metatarsalgia is present. As the record reflects that the Veteran has bilateral metatarsalgia with manifestations distinct from those associated with flatfoot, a 10 percent rating pursuant to Diagnostic Code 5279 is warranted throughout the period on appeal. In conclusion, the Board finds that a separate 10 percent rating is warranted for metatarsalgia pursuant to Diagnostic Code 5279 throughout the period on appeal. However, the preponderance of the evidence is against a rating in excess of 10 percent prior to May 8, 2019, and in excess of 30 percent thereafter for the Veteran's left foot disability pursuant to Diagnostic Code 5276. 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. 3. Entitlement to an initial disability rating of in excess of 30 percent prior to May 8, 2019, and in excess of 50 percent thereafter, for MDD. The Veteran's MDD is currently rated as 30 percent disabling prior to May 8, 2019, and 50 percent disabling thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. Diagnostic Code 9434 directs the rater to use the General Formula for Mental Disorders (General Formula). 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). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The Veteran first underwent VA examination in connection with this claim in September 2014. She reported having a close relationship with her father and siblings, and that she had been married for one year and shared a 10-year-old son with her wife. She described her relationships with her wife and son as positive, and reported enjoying playing sports, attending sporting events, and travelling together. The Veteran worked as a maintenance technician, serving in a supervisory role to two employees. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, and that the Veteran expressed a clear future orientation with no indication she wanted to harm herself or others. Ultimately, the examiner opined that the Veteran's psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress. Veteran submitted a Disability Benefits Questionnaire completed in April 2018 by a private clinician. The Veteran reported that she was separated from her spouse but continued to maintain a close relationship with her son and two friends. She engaged in activities including attending church, walking in the park, and watching television. She worked fulltime as a renovation superintendent. She reported that her anxious mood affected her daily functioning, and that she had considered suicide in the past. The clinician indicated that the Veteran's anxiety affected her sleep patterns and kept her awake at night. The Veteran asserted that she regularly worried about things she had to do and sustained a sense of incompletion. She demonstrated a physical restlessness, including nail biting and playing with her hair, and indicated that she suffered from a decreased libido. She reported that her wife and co-workers expressed that she often appeared angry, irritable, and short-tempered. The Veteran described experiencing indecisiveness, forgetfulness, and a reduced tolerance for frustration. The clinician noted symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, a flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, reduced activity, fatigue, and reduced self-esteem. Ultimately, the clinician opined that the Veteran's psychiatric disorder manifested in occupational and social impairment with reduced reliability and productivity. The Veteran most recently underwent VA examination in May 2019. She reported that she continued to remain close to her parents and son, but that she was going through a divorce. She attributed the divorce to her depression causing her to be distant from her wife. She continued to work as a renovation superintendent and stated that she could work from home which gave her "a lot of freedom." While she frequently struggled with a lack of motivation to get out of bed, she was able to work from home on those days. She noted that her performance evaluations had been average to below average as she tended to isolate from her co-workers and could be irritable with them. The Veteran reported that she still had two close friends she saw somewhat frequently, but that she tended to back out of plans due to anxiety. She further reported that she was typically an organized and clean person, but had difficulty maintaining household chores during her depressive episodes. The examiner noted current symptoms of anxiety, depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, low self-worth, irritability, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. With respect to irritability, the Veteran admitted that she had temporarily given her dog to a friend because she was hitting the dog in moments of anger. Further, she reported a history of self-harm, specifically cutting. She indicated that her last episode of self-harm was in 2017, but that she still had thoughts and urges related to cutting. The examiner opined that the Veteran's insight and judgment were intact, and her impulse control was within normal limits. The examiner further opined that the Veteran's psychiatric disorder manifested in occupational and social impairment with reduced reliability and productivity. Treatment records and lay statements throughout the period on appeal reflect symptoms consistent with those noted on examination. For example, in May 2017 the Veteran enrolled in an intensive outpatient therapy program to address her depression, at which time she complained of decreased motivation and energy, difficulty sleeping, and irritability. See Deaconess Health System records, May 2017. The Veteran also sought private treatment in February 2019 and described feeling sad and depressed and having frequent panic attacks. The Veteran also submitted statements from a VA clinician and a spiritual counselor. In February 2015, Dr. L., the VA clinician, stated that the Veteran's conditions affected not only her mood, but also her memory and concentration, but that the Veteran was very motivated and compliant with treatment. The spiritual counselor stated in May 2019 that the Veteran displayed symptoms of fatigue, depression, and anxiety during their sessions. VA and private treatment records, the VA examinations, and the Veteran's lay statements show that the Veteran's MDD was primarily manifested by symptoms associated with a 50 percent rating (impairment of memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships). She also had symptoms that are not listed with a specific rating, such as suspiciousness, chronic sleep impairment, indecisiveness, and reduced self-esteem. The Veteran remained employed fulltime throughout the period on appeal and was close to a few friends, her son, and her family. Notably, the Veteran did not pursue education during the appeal period and the effects of her disability on her ability to function at school are unknown. The evidence reflects that such symptoms cause occupational and social impairment with reduced reliability and productivity. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms mostly closely approximate the symptoms contemplated by a 50 percent rating, which are more severe, more frequent, and longer in duration than those contemplated by a 30 percent rating, but less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Veteran expressed suicidal ideation and the urge to self-harm, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation and urge to self-harm has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. The Veteran reported experiencing suicidal ideation in the past, but generally denied contemplating suicide. Moreover, the symptom was not associated with impairment in her occupational or social functioning. Instead, the Veteran attributed her marriage problems to symptoms such as depression causing distance from her now former spouse. Furthermore, while she reported that she engaged in self-harm, specifically cutting, in the past, with the most recent occurrence in 2017, and occasionally had the urge to self-harm, she was consistently found by clinicians to not be a danger to herself. Again, this symptom is not associated with any impairment of occupational or social functioning during the appeal period. As such, the evidence does not reflect that her suicidal ideation was productive of social and occupational functioning with deficiencies in most areas or total impairment. While the Veteran did experience symptoms contemplated by a 70 percent ratingspecifically difficulty in adapting to stressful circumstancesthe evidence overall does not demonstrate the level of impairment associated with a 70 percent rating or higher is warranted. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds that a 50 percent rating, but no higher, is warranted throughout the period on appeal and, to that extent, the claim is granted. The preponderance of the evidence is against a finding that the Veteran's MDD is productive of either total occupational and social impairment or occupational and social impairment with deficiencies in most areas. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Thus, the Board concludes that a rating higher than 50 percent is not warranted at any point during the period on appeal. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.