Citation Nr: 21041238 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-20 198 DATE: July 8, 2021 ORDER 1. Entitlement to service connection for a psychiatric disorder other than major depressive disorder is denied. 2. Entitlement to an initial rating in excess of 50 percent for major depressive disorder (from July 7, 2003 to October 17, 2008) is denied; a 70 percent rating is granted for the major depressive disorder from [the earlier effective date of] October 17, 2008. 3. Entitlement to a rating in excess of 10 percent for left foot hallux valgus with arthrosis of the 1st metatarsal cuneiform joint prior to October 7, 2008 is denied; a 20 percent rating is granted from October 7, 2008; and a 30 percent rating is granted from December 6, 2019. 4. Entitlement to increases in the (10 percent prior to January 27, 2020, and 50 percent from that date) staged ratings assigned for bilateral pes planus is denied. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is not shown to have a diagnosis of an acquired psychiatric disorder other than major depressive disorder (with anxious distress). 2. Prior to October 17, 2008, the Veteran's major depressive disorder was not shown to have been manifested by symptoms productive of impairment greater than occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas were not shown; from [the earlier effective date of] October 17, 2008, it is reasonably shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; at no time is it shown to have been manifested by symptoms productive of total occupational and total social impairment. 3. Prior to October 7, 2008 the Veteran's left foot hallux valgus with post arthrodesis arthrosis of the first metatarsal cuneiform joint was manifested by pain and required use of orthotics; symptoms or impairment showing or approximating moderately severe foot injury were not shown; from October 7, 2008 to December 6, 2019, it was manifested by symptoms and impairment consistent with moderately severe foot injury; from December 6, 2019 it has been manifested by chronically compromised weight bearing, required arch supports, custom orthotic inserts, or shoe modifications, and recent surgery residuals have included pain, swelling, impaired ambulation, weakness, and imbalance, and symptoms and impairment consistent with severe foot injury are reasonably shown; loss of use of the left foot is not shown. 4. Prior to January 27, 2020, the Veteran's bilateral pes planus was manifested by moderate flatfoot with symptoms including weight-bearing line over or medial to great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet, and severe flatfoot with symptoms including objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, was not shown; from that date, the 50 percent rating assigned is the maximum schedular rating provided for pes planus, and separately ratable complications or flatfoot symptoms or impairment not encompassed by the schedular criteria are not shown or alleged; loss of use of either foot is not shown. 5. The Veteran's service-connected major depressive disorder (rated 50 percent from July 7, 2003 to August 23, 2010, and 70 percent from that date); bilateral pes planus (10 percent from July 7, 2003 to January 27, 2020, and 50 percent from that date); HIV (rated 30 percent); left foot hallux valgus with post-arthrodesis arthrosis of the first metatarsal cuneiform joint (10 percent from July 7, 2003 to October 7, 2008, to December 6, 2019, and 30 percent from December 6, 2019); right knee strain with tendonitis (10 percent); and right foot hallux valgus and left foot residual scar (0 percent, each); have been rated 70 percent or higher, combined, throughout; they are not shown to have been of such nature and severity as to render him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for a psychiatric disorder other than major depressive disorder (with anxious distress) is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The Veteran's major depressive disorder warrants "staged" ratings of 50 percent from July 7, 2003 to October 17, 2008, and 70 percent from [the earlier effective date of] October 17, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9434. 3. A rating in excess of 10 percent for left foot hallux valgus (with arthrosis of the 1st metatarsal cuneiform joint) is not warranted prior to October 7, 2008; staged ratings of 20 percent from October 7, 2008 to December 6, 2019 and 30 percent from December 6, 2019 are warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Code 5284. 4. Increases in the (10 percent prior to January 27, 2020, and 50 percent from that date) staged ratings assigned for bilateral pes planus are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Code 5276. 5. The schedular criteria for a TDIU rating are met, but a TDIU rating is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1995 to July 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2004, April 2014, and March 2015 rating decisions. In May 2018 and August 2019, these matters were remanded for additional development. The previous remands also addressed claims of service connection for a right knee disorder, a right foot disorder other than pes planus, and a left foot disorder other than pes planus and left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis. A June 2020 rating decision granted service connection for right knee strain with tendonitis, resolving that matter; and a February 2021 rating decision granted service connection for right and left foot hallux valgus, resolving those matters. [Also, the Veteran was previously represented by an attorney, who withdrew from representation prior to the August 2019 Board remand, which was again confirmed after that remand.] 1. Entitlement to service connection for a psychiatric disorder other than major depressive disorder is denied. The Veteran contends that he has an acquired psychiatric disorder other than major depression, including a neurocognitive disorder related to his service-connected HIV. The Veteran's STRs show that in December 1996 he reported having trouble with anxiety attacks throughout his life, worse since corps school; the assessment was panic disorder. In February 1997, he was treated for anxiety disorder/panic attacks. In August 1997, he reported having a severe anxiety attack that morning. In October 1997, he was seen on follow-up treatment for social phobia. On February 1998 psychological evaluation, the impressions were social phobia, generalized, mild-moderate, not disabling; and personality disorder not otherwise specified, with avoidant and paranoid features. On March 1998 psychological evaluation, the closest related Axis I diagnoses included social phobia; adjustment disorder, unspecified; adjustment disorder with anxious mood; and occupational problem; however, the primary diagnosis was a personality disorder, not otherwise specified with avoidant, compulsive, and paranoid features. On May 1998 psychiatric consultation, the diagnoses were social phobia, rule-out panic disorder, and personality disorder not otherwise specified with avoidant, compulsive, and paranoid features. In August 1998, he was seen for panic disorder without agoraphobia. In September 1999, he was seen for panic disorder and social phobia. In December 1999, the assessments included panic disorder well controlled, and social phobia improving. In August 2002, he was seen for depression, anxiety, and multiple social stressors. In June 2003, the diagnosis was dysthymic disorder and personality disorder not otherwise specified (by history). On September 2003 VA examination, the Veteran was noted to have been seeing a psychiatrist since 1996, when major depressive disorder and anxiety were diagnosed. He reported still having symptoms of depression and thoughts of vague suicidal ideation with no current plan. He reported his main problem was dealing with depression. Following a mental status examination, the diagnosis was major depressive disorder without psychotic features. On May 2004 and July 2004 VA treatment, the assessments included major depressive disorder, recurrent, partial remission; and rule-out bipolar disorder type 2. On August 2007 private psychiatric evaluation, the Veteran reported experiencing anxiety/panic (infrequent) symptoms including difficulty concentrating, muscle tension, and trouble staying asleep; and manic-like symptoms including staying up late and for long periods and going on housecleaning binges. The diagnoses included an Axis I mathematics disorder. The examiner also noted that the Veteran experienced manic-like psychiatric symptoms. On October 2007 VA treatment, the Veteran reported some anxiety and PTSD symptoms. He reported frequent nightmares related to physical abuse from his father as a child. The impressions included seasonal affective disorder (by history) and anxiety disorder not otherwise specified. In a February 2014 VA medical statement, a VA psychiatric nurse practitioner stated that the Veteran had been receiving treatment for an anxiety disorder not otherwise specified (NOS) since May 2013. She also noted that the Veteran's anxiety was associated with the impairment caused directly by his depression. On March 2015 VA examination, it was noted that the Veteran was being treated by VA for mild to moderate major depressive disorder, anxiety not otherwise specified, and alcohol use. On December 2017 VA treatment, diagnoses included a rule-out diagnosis of a cognitive disorder. On January 2020 VA examination, the examiner opined that the Veteran does not have any acquired psychiatric disorder other than Major Depressive Disorder, recurrent, moderate, with anxious distress; and this diagnosis can account for the Veteran's complaints such as depressed mood, anxiety, worry, memory issues, distractibility, irritability, etc. The examiner opined that the Veteran does not meet the criteria for any other mental condition at this time. The examiner opined that the Veteran's Specific Learning Disorder with impairment in mathematics is a condition that forms, and would have been present, during the developmental period; he continues to meet the DSM-5 criteria for Major Depressive Disorder, and the modifier "with anxious distress" was added to address his ongoing anxiety symptoms (e.g. nervousness, panic attacks, worry, social anxiety) that do not meet criteria for another disorder and are attributable to his depression. The examiner opined that the Veteran's Specific Learning Disorder with impairment in mathematics appears to have followed its expected course and was not at least as likely as not aggravated beyond its natural progression by the service-connected psychiatric disability. The examiner opined that the Veteran does not have a neurocognitive disorder; though he does have HIV which could be the basis of a neurocognitive disorder, he does not meet criteria for a mild or major neurocognitive disorder. The examiner opined that the complaints such as mild memory loss, forgetfulness, and distractibility can be attributed to major depression; however, the possibility of future cognitive decline does exist given the presence of the underlying HIV condition and complexities such as management of the disease. The examiner opined that the STRs demonstrate the Veteran was provided services to address depression, including psychotherapy and medication management. The examiner opined that post-military testing confirmed the mathematics disorder, which would have been present during the developmental period and continued as an ongoing condition; the Veteran reported math difficulties throughout his life up to the present that have interfered with occupational and educational attainments. The examiner opined that the specific learning disorder with impairment in mathematics clearly and unmistakably pre-existed the Veteran's active duty service. Additional VA treatment records show assessments of psychiatric disability, but no further opinion offered regarding etiology. The Veteran also submitted lay statements noting symptoms of his psychiatric disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran has received diagnoses of social phobia, panic disorder, and anxiety during service, and postservice assessments have included a mathematics disorder in August 2007, and anxiety disorder in October 2007 and March 2015, there is no confirmed diagnosis (based on a complete psychiatric evaluation) of an acquired psychiatric disorder other than major depressive disorder at any time. As explained by the January 2020 VA psychiatric examiner, the Veteran's problem with mathematics (a cognitive impairment in the class of specific learning disorder, see DSM-5, classification 315.1) is a developmental order with a natural progression that clearly pre-existed service, and is not a neurocognitive disorder secondary to the Veteran's service-connected HIV. [The provider indicated that HIV is a known risk factor for development of neurocognitive disorders, but that here such a neurocognitive disorder is not shown.] Service connection for developmental disabilities, of themselves, are not compensable disabilities. See 38 C.F.R. § 3.303(c). As the VA examiner noted the mathematics learning disorder is not shown to have progressed beyond normal progressions during service. And it is not shown that acquired pathology (such as from a neurocognitive disorder secondary to HIV) was superimposed on the pre-existing mathematics disorder during, or subsequent to, service. Accordingly, service connection for any such psychiatric disability on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. The preponderance of the evidence is against a finding that the Veteran currently has an acquired psychiatric disability other than major depressive disorder (with anxious distress). The Board finds the January 2020 VA examination report merits substantial probative weight. It reflects a detailed review of the Veteran's claims file and familiarity with his medical history and lay accounts, is based on a thorough psychiatric evaluation/interview, and includes rationale that cites to historically accurate supporting factual data and invokes medical principles. In essence, it indicates that the Veteran's diagnosed major depressive disorder includes anxious features that account for his anxiety-related symptoms (but do not reflect a separate anxiety disorder) (the Board observes here that any such distinction would not prejudice the Veteran, as all anxiety symptoms are considered in rating his service-connected mental disability), and as explained above, that his demonstrated mathematics disorder is a (noncompensable) developmental disorder. The Veteran's own opinions that he has an acquired psychiatric disorder other than major depressive disorder are not probative evidence in this matter. He is a layperson, and has not demonstrated (and does not profess to have) the medical expertise required to diagnose, and determine the etiology of, a psychiatric disability, and has not supported competent (medical opinion or treatise) evidence in support of his claimed theory of entitlement. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against this claim. Accordingly, the appeal seeking service connection for a psychiatric disorder other than major depressive disorder must be denied. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned upon a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increase, as here, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for a period beginning one year before the claim was filed until VA makes a final decision on the claim. However, separate ratings may be assigned for separate periods of time based on facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Where 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 50 percent for major depressive disorder from July 7, 2003 to October 17, 2008 is denied; a 70 percent rating is granted for major depressive disorder from [the earlier effective date of] October 17, 2008. On September 2003 VA examination, the Veteran was noted to have been seeing a psychiatrist since 1996, when major depressive disorder and anxiety was diagnosed. He was taking Zoloft. He reported still having symptoms of depression and thoughts of vague suicidal ideations with no current plan. He had increased sleep, decreased energy, poor concentration, and at times he felt like Zoloft was not having any effect. He denied any manic or psychotic symptoms. He reported his main problem was dealing with depression. On mental status examination, the Veteran was described as dressed appropriately. His mood was reported as 3/10, with 10 being happy. Speech was regular in rate and rhythm, and there were no abnormal motor movements. He had good eye contact. He was articulate, calm, cooperative, and pleasant. His affect appeared somewhat blunted. His thought process was logical and goal-directed. No auditory or visual hallucinations were noted, and no suicidal or homicidal ideation was reported. The diagnosis was major depressive disorder without psychotic features. Based on this evidence, an August 2004 rating decision granted service connection for major depressive disorder, rated 10 percent, effective July 7, 2003. A January 2005 rating decision increased the initial rating to 50 percent, also effective July 7, 2003. On August 2006 VA treatment, the Veteran was described as neatly dressed and appropriately groomed. He presented with a fairly positive affect. His thoughts were clear and coherent, and he appeared to have adequate judgment and insight. There were no signs of a thought disorder, and hallucinations and delusions were not noted. He denied any intent to harm himself or others. On August 2007 private examination, the Veteran reported symptoms of depression including depressed mood, weight gain, insomnia, easy fatigability, and difficulty concentrating and making decisions. He reported seeing his parents several times a year, and that he had a few friends with whom he enjoyed having lunch and talking on the phone; his hobbies and interests included drawing, reading, writing poetry, and studying ancient history and metaphysics. On mental status examination, he was appropriately dressed with good grooming and hygiene. His motor activity was average and attitude was cooperative. His speech was spontaneous and articulation and conversation were normal. The examiner observed no blocking, muteness, repetitions, flight of ideas, loose associations, or tangential or circumstantial thinking. The Veteran's stream of talk and mental activity were normal, and his judgment was unimpaired, and insight was good. His mood was normal and affect was broad; his concentration, attention, and memory were intact, and he was fully oriented. In October 2007 the Veteran sought VA psychiatric treatment, reporting worsening depression. He reported sleeping 6 to 8 hours per night, poor energy, anhedonia, and avolition. He denied active and passive suicidal ideation, intent, or plan. He denied audiovisual hallucinations or delusions. He denied flashbacks, hypervigilance, or avoidance. He reported that his depressive symptoms had, in the past, been "warning signs" for a much more severe depressive episode, and he wished to get started on medication before an episode became so severe that he had thoughts of self-harm. He reported frequent nightmares related to physical abuse from his father as a child. On mental status examination, he was casually dressed, well kept, and had good eye contact. It was noted that he had no psychomotor agitation or retardation and was calm and cooperative. His speech was spontaneous and normal in rate, rhythm, and volume. His mood was depressed, and affect was congruent and dysphoric. His thought process was logical and organized, with no circumstantiality or tangentiality. His insight and judgment were fair, and he was fully alert and oriented. On February 2008 VA treatment, the Veteran reported still feeling some depression, mainly in the form of amotivation, fatigue, and episodes of melancholy. He denied suicidal or homicidal ideation. On mental status examination, he was very fashionably and sharply dressed and neatly groomed, and his demeanor was pleasant and businesslike. His speech was somewhat formal in style and he had no abnormal movements. His affect was constricted, and his mood included some episodes of melancholy, very mild irritability at times, and mild depression. His thought process was organized, and thought content included no psychosis. His insight and judgment were good. He was alert, well-oriented, and had good concentration and attention with no evidence of gross difficulty. The diagnosis was mild major depressive disorder. On October 17, 2008 VA examination, the Veteran reported that he lived alone and was not in a relationship. He reported that he did not see his parents much because they were having marital issues and he did not like to be around their conflict, which he found draining and depressing. He reported that he was not close with his brother. He reported that he stayed away from people he did not feel close to, and his close friends lived at a distance and were people he had known from service; he had very little contact with others except by phone. He reported that he used to enjoy drawing, painting, and going to museums or plays, but many of his leisure activities had waned. He reported that he started books but did not finish them; this started about a year earlier and his anhedonia had been increasing. He reported having strong suicidal ideation and impulses but had not acted on them and had no plans or intent. He denied any history of violence or assaultiveness. He was isolated and anhedonic and the examiner opined he was moderately/severely impaired in his psychosocial functioning. He reported concern about his alcohol use, noting that when he woke at night he had a drink to relax and get back to sleep. He reported he took Prozac but it was not effective. On mental status examination, the Veteran was neatly groomed and appropriately dressed. His psychomotor activity was fatigued and showed low energy, with frequent sighing. His speech was unremarkable. His attitude was cooperative and attentive but with minimal eye contact. His affect was blunted, sad, and melancholy, and his mood was depressed. His attention was intact and he was fully oriented. His thought process was unremarkable but with slowed cognition, and thought content was unremarkable with no delusions or hallucinations. His judgment and insight were intact. He had obsessive/ritualistic behavior when depressed, including making piles or stacks of things and counting lines on the pavement or his hand. He reported having a moderate panic attack a few weeks earlier in a crowded movie theater, which was the first such attack in several years. He had good impulse control and no episodes of violence. He had moderate problems with household chores, shopping, and traveling. His recent memory was moderately impaired, with getting lost, forgetting important dates, and forgetting names and things he has read; this was a marked change for him over the previous 6 months. The diagnosis was major depression, recurrent, moderate/severe. The examiner opined that the Veteran's mental disorder symptoms result in deficiencies in most areas, including thinking (slowed cognition, impaired memory and concentration), family relations (he had withdrawn from family members), work (he tried to work but irritability and memory/concentration difficulties led to difficulties with supervisors and co-workers and then his leaving), mood (severe depression), and school (he dropped out of social work classes because of inability to focus and remember material that he had studied). An increased rating claim was received on August 23, 2010. On March 2011 VA examination, the Veteran reported that his parents had an ambivalent relationship with each other, and he found it difficult to spend much time with them due to their conflict. He reported a strained and sporadic relationship with his father. He reported talking to his mother occasionally but their relationship primarily consisted of her venting about her marriage. He reported not really being connected to his brother as they once were, and he spoke with his sister-in-law once in a while about her problems. He denied having any significant romantic relationships since the previous exam. He reported having two friends; he saw one of them every couple of weeks, and the other lived out of state and they communicated primarily through email. He reported tending to isolate from both friends and having to push himself to respond to their communications. He reported enjoying reading and writing but he had not really been into it lately; he had not felt like being around a lot of other people, and it had been difficult to finish any activities. He reported one past suicide attempt but none since the previous exam. He reported significantly reduced alcohol consumption. He reported chronic depressed mood, overeating, hypersomnia, anhedonia, amotivation, irritability, feelings of hopelessness and worthlessness, and difficulties with memory and concentration. On mental status examination, the Veteran was neatly dressed with good grooming and hygiene. His psychomotor activity and speech were unremarkable. His attitude was cooperative, friendly, and attentive. His affect was constricted, and mood was depressed with feeling unfocused and a bit irritable at times. His attention was impaired with being easily distracted and short attention span; he reported feeling "scatterbrained", having to read things multiple times, and having difficulty retaining things when he is in a low space. He was fully oriented and his thought process was unremarkable. His thought content included suicidal ideation but no delusions or hallucinations. His judgment and insight were intact. He reported sleep impairment and obsessive/ritualistic behavior including wringing his hands to calm himself as he falls asleep. He reported having occasional panic attacks, primarily in crowds, though not lately due to avoidance of crowds. He had suicidal thoughts because he wanted to escape his depression but had no plans to harm himself. His impulse control was fair; he had frequent irritable moods but had avoided physical altercations. He had no problems with activities of daily living. He reported ability to maintain minimal personal hygiene but it was a struggle to get motivated for basic self-care at times; his parents noticed some problems with grooming the last time he saw them. His recent memory was moderately impaired, and remote and immediate memory were normal. The diagnosis was major depressive disorder, severe, recurrent. The examiner opined that the Veteran was severely impaired in his psychosocial functioning. The examiner opined that the mental disorder symptoms resulted in deficiencies in most areas. Based on this evidence, an April 2011 rating decision granted a 70 percent rating for major depressive disorder, effective August 23, 2010. On March 2015 VA examination, the Veteran reported that he did not date and had not been in a romantic relationship since the previous exam. He reported that he lived alone. He reported that he had been back and forth to see his parents in order to take care of his ailing father, with whom he had never had a good relationship, noting that he was verbally abusive; he was just trying to help his mother deal with his father. He reported that he felt like the sounding board for his mother and her problems but could not talk to her about his problems. He reported feeling at odds with both parents and that they are his only contacts with the world. He reported that he was doing "a lot of house cleaning" in that he was "purging people from his friends list" because he had had some parasitic relationships that he knew were not good for him. He reported that about 5 years earlier, he developed a relationship with a woman and her family, but they pulled away from him and things became awkward after she broke his confidence and told her family about his HIV status, which he found to be hurtful. He reported that when he was not frustrated or distracted, he would read, which was his main activity. He reported he had done some volunteering a couple of years earlier; he thought he should be compensated for his time and was vocal about this, and was asked to discontinue working with the organization. He reported experiencing suicidal ideation but had made no attempt. He reported an altercation with a neighbor the previous year over the neighbor's noise level; the situation escalated, the neighbor hit him in the head with the butt of a pistol, and the Veteran called police; the neighbor had since moved away. He reported drinking to excess a couple of times a week. On mental status examination, the Veteran's reported symptoms included depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; 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 work-like setting; and suicidal ideation. He was casually dressed with average grooming, fair eye contact, and cooperative attitude. His speech was clear and coherent. His leg shook continuously, and he was sweating. His mood was anxious, tired, and with a certain amount of frustration. His affect was anxious/dysphoric. His attention and concentration were adequate and he was fully oriented. His immediate memory was normal but was impaired with short and long time delays. His thought content was very focused on his relationship with his father. There were no hallucinations. He denied current suicidal ideation, plan, or intent, but tended to experience more passive suicidal ideation at night when unable to sleep and thinking about how to cope. He denied homicidal ideation. His thought process was within normal limits, and his insight and judgment were average. The diagnosis was major depressive disorder, moderate with anxious distress. The examiner opined that the mental diagnosis resulted in occupational and social impairment with deficiencies in most areas. On January 2020 VA examination, the Veteran denied having close friends. He reported having the best relationship with his young nieces and nephews, and that he tried to stay connected to them. He reported connecting with his mother, though a certain amount of enmeshment had developed over the years and he had difficulty enforcing boundaries. He reported difficulty learning in school due to math problems. He reported more problems with depression during the winter months. He reported that since the loss of his father in December 2019 he had done "weird things" such as having two accidents, making mistakes on calculations at work, and trouble remembering things; his current job recognized this and asked if he needed time off, and he was now working less, and mostly on weekends. He reported some problems with disorganization, and recurring social anxiety affecting his desire to go out at times. He reported being able to connect to people at work as that is a controlled environment but found it difficult outside of work. He reported spurts of anger when driving or being hypervigilant. He reported feeling depressed, tired, distracted, and unfocused on things he wants and needs to do. He reported difficulty getting on a regular sleep schedule, inconsistent appetite, forgetfulness, poor attention, poor motivation, malaise, apathy, decreased social interest and energy, depressed mood, anhedonia, low energy, trouble being around people in public, and panic attacks approximately every few months. He denied any mania, hallucinations, delusions, obsessions, compulsions, spatial disorientation, aggression or violence, or current suicidal or homicidal ideation. On mental status examination, the reported symptoms included depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; difficulty in understanding complex commands; 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 work-like setting; inability to establish and maintain effective relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was appropriately dressed and groomed with inconsistent eye contact and appropriate motor activity. There were no apparent signs of distress and he was cooperative. His speech was clear and normal in quantity, rate, and volume, with no communication problems. His mood was reported as malaise, frustrated, and detached, and affect was constricted with depressed qualities. He was fully alert and oriented. His immediate and remote memory were grossly intact and recent memory was mildly impaired. His concentration was fair, judgment was good, and insight was good. His thought process was appropriate, linear, and goal-directed, with no evidence of a disturbance of thought process nor signs of confusion. He reported wanting to be more productive, less isolated, and with more connections to people. He reported having days when he has no desire to shower, brush his teeth, or shave. He reported being forgetful with preparing meals, and shopping at odd hours to avoid crowds. He reported periodic passive suicidal ideation after the recent death of his father but denied any current active ideation. The examiner opined that the Veteran's major depressive disorder, recurrent, moderate, with anxious distress leads to occupational and social impairment due to symptoms such as depressed mood, anxiety, worry, low motivation, interpersonal problems, panic attacks, withdrawal, trouble being around others, etc. The examiner opined that this has affected his employment due to trouble interacting with others and conflicts that have led to him being fired or else choosing to leave jobs; his personal relationships are affected as evidenced by trouble seeking and engaging in romantic relationships, trouble with family relationships such as his mother and deceased father; and he feels closest to his school-age nieces and nephews. The examiner opined that the major depressive disorder with anxious distress accounts for symptoms such as depressed mood, low motivation, anxiety, interpersonal problems, panic attacks, sleep impairment, mild memory loss, disturbance of motivation and mood, trouble adapting to stress, and intermittent impairment in activities of daily living; the mathematics disorder (by history) accounts for specific deficits in numerical operations, math fluency, and math reasoning (per testing found in the record). The examiner opined that the Veteran's mental diagnoses result in occupational and social impairment with reduced reliability and productivity. The examiner opined that the major depressive disorder with anxious distress accounts for the majority of the occupational impairment; the specific learning disorder would likely only contribute to impairments (e.g. frustration, irritability, increased depression and anxiety) in those specific instances where those skills were required and could not otherwise be compensated for by his intelligence and adaptive strategies. Additional treatment records throughout show symptoms for the most part similar to those noted on contemporaneous examinations and treatment visits described above. The Veteran has also submitted lay statements describing his difficulties due to psychiatric disability. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for major depressive disorder when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9434. The use of the phrase "such symptoms as", followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of this regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Although a veteran's symptoms are the "primary consideration" in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board finds that, from July 7, 2003 to October 17, 2008, the reports of VA examinations, treatment records, medical statements, hearing testimony, and lay statements, overall, do not show that prior to October 17, 2008 symptoms of the Veteran's major depressive disorder resulted in occupational and social impairment with deficiencies in most areas, so as to meet the criteria for the next higher (70 percent) rating. While on occasion he self-reported symptoms of greater severity, it is not shown by the record that such symptoms resulted in deficiencies in most areas. Significantly, he maintained close family relations and some friendships, he had intact attention and adequate memory, and there was no evidence of a cognitive or thought disorder or impaired insight or judgment; furthermore, his daily living activities were not shown to be significantly impaired, nor was he shown to be incapable of managing his finances. The lay statements he submitted in support of this claim detail the types of problems that result from his psychiatric symptoms. The levels of functioning impairment described are encompassed by the criteria for the 50 percent rating assigned, and do not reflect deficiencies on most areas prior to October 17, 2008. From [the earlier effective date of] October 17, 2008, the Veteran, his treating and evaluating mental health personnel, and the VA examiners have reported symptoms that reflect occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. On VA examination on that date, he described worsening symptoms that reflect a disability picture reasonably reflective of occupational and social impairment with deficiencies in most areas. He then first reported having very little contact with others except by phone, many of his leisure activities had waned, his anhedonia had increased and he would start books but not finish them, he had strong suicidal ideation and impulses, he had increased alcohol use, and obsessive/ritualistic behavior. Importantly, he was noted to have slow cognition and reported getting lost and forgetting things, suggesting some memory impairment. The Board finds significant the October 17, 2008 VA examiner's opinion that he was moderately/severely impaired in his psychosocial functioning; the examiner opined that the Veteran's mental disorder symptoms result in deficiencies in most areas, including thinking (slowed cognition, impaired memory and concentration), family relations (he had withdrawn from family members), work (he tried to work but irritability and memory/concentration difficulties led to difficulties with supervisors and co-workers and then his leaving), mood (severe depression), and school (he dropped out of social work classes because of inability to focus and remember material that he had studied). Therefore, the Board finds that a 70 percent rating is warranted from October 17, 2008. The evidence of record does not show that symptoms that met (or approximated) the criteria for a 100 percent schedular rating were manifested at any time under consideration. It is not shown that, at any time, the Veteran had symptoms productive of total occupational and total social impairment. While on occasion he self-reported symptoms of greater severity, it is not shown by the record that his symptoms resulted in such total impairment. The record does not show that he required assistance tending to finances, gross impairment in thought processes or communication was not shown, his behavior was not shown as grossly inappropriate, and he was not in persistent danger of hurting himself or others. Furthermore, he has maintained relations with his mother and his nieces and nephews and has been working. The lay statements he submitted in support of this claim detail the types of problems that resulted from his psychiatric symptoms. The levels of functioning impairment described are encompassed by the criteria for the 70 percent rating [now] assigned from October 17, 2008. Accordingly, a 100 percent schedular rating is not warranted at any time. 3. Entitlement to staged increases in the ratings for left foot hallux valgus with arthrosis of the first metatarsal cuneiform joint is granted. 4. Entitlement to increases in the (10 percent prior to January 27, 2020, and 50 percent from that date) staged ratings assigned for bilateral pes planus is denied. On September 2003 VA examination, the Veteran was noted to have a hypermobile left foot and he heard clicks; he twice had surgery on it, first in 1996 and later receiving a bone graft. He reported ability to walk limited to 2 or 3 hours, and sharp pain, particularly in the middle of the foot. He reported difficulty standing for a long time (with a maximum of 2 to 3 hours). He reported ability to walk long distances. He was not taking pain medication. On physical examination, left foot sensation was grossly intact, and he could move his toes. Both feet were flat and the soles appeared normal. X-rays showed a metallic fixating plate at the base and proximal shaft of the left first metatarsal; alignment was preserved and the ankle joint was unremarkable. The diagnoses included status post left foot surgery and bilateral flat feet. Based on this evidence, an August 2004 rating decision granted service connection for degenerative joint disease and arthrosis of the first left metatarso-cuneiform joint, status post arthrodesis, rated 0 percent, effective July 7, 2003. A January 2005 rating decision increased the initial rating to 10 percent, also effective July 7, 2003. On September 2005 VA treatment, the Veteran was noted to have had two left foot surgeries, but was having pain in both feet at the first metatarsal/cuneiform area, on the dorsal aspect of the feet. The assessment was pes planus with excessive pronation aggravated on the left by postsurgical pain with retained hardware. He was referred for custom soft orthotics and extra depth shoes to accommodate devices. X-rays showed post-surgical changes with a metallic fixation plate attached to the left first metatarsal and medial cuneiform; mild flattening of the plantar arches was seen. On June 2006 VA examination, it was noted that the Veteran had surgery in an attempt to fuse the left first metatarsal cuneiform joint in 1996; he reported that the pins broke, and he had a second procedure in 1998 when the pins were removed, and he underwent a re-fusion procedure using autologous bone graft from the iliac crest and plate and screw fixation. He reported that the pain then improved but he still had flare-ups with prolonged standing and walking; he had stopped attempting to run by that time. He reported his standing was limited to about an hour, and walking was limited to two hours, each without significant pain. He reported noting pain beginning in the right midfoot in the same location in 1999, with the same problems with prolonged standing and walking. On physical examination, the Veteran walked with a normal gait, with no evidence of painful motion or instability. Both feet showed similar ranges of motion, with 20 degrees dorsiflexion, 40 degrees plantar flexion, 40 degrees inversion, and 20 degrees eversion. There was no motion in the left first metatarsal cuneiform joint, and the plate and some bony buildup were easily palpable. On standing, the left foot showed a mild degree of Achilles curvature and a mild degree of heel valgus, with 3+ pes planus with pronation of the forefoot. The right foot showed no Achilles curvature; there was about a 2+ pes planus with mild forefoot pronation and no heel valgus, and mild bony prominence of the first metatarsal cuneiform joint. There was no objective evidence of abnormal shoe wear. There was no increased limitation of motion due to weakness, fatigability, or incoordination following repetitive use. The diagnoses were bilateral pes planus with forefoot pronation, worse on the left; and status post-surgical arthrodesis of the left first metatarsal cuneiform joint. On October 7, 2008 VA examination, the Veteran reported that due to his ambulation was limited to 50 yards or less before he must stop due to pain; he recovered enough to walk another 50 yards in about 5 minutes. He reported left foot pain, stiffness, and lack of endurance at the forefoot while standing, walking, and at rest; there was no swelling, heat, redness, fatigability, or weakness. He denied having right foot symptoms. He denied flare-ups of foot joint disease. He reported inability to stand more than a few minutes. On physical examination of the left foot, there was objective evidence of painful motion at the surgical site with standing and ambulation; it was not painful when not weight bearing. Tenderness was noted at the midpoint of the surgical scar and just proximal to the ball of the foot at the medial aspect. There was no objective evidence of swelling, instability, weakness, or abnormal weight bearing. On examination of the right foot, there was no objective evidence of painful motion, swelling, tenderness, instability, or weakness. Bilateral pes planus, left greater than right, was noted. His gait was normal. An increased rating claim was received on August 23, 2010. On March 2011 VA examination, the Veteran reported increased left foot pain and a need to be more careful of the foot when walking. He reported left foot pain on the plantar surface and dorsum while standing, walking, and at rest; stiffness at the plantar surface while standing and at rest; and lack of endurance of the entire foot on standing and walking. He reported right foot pain on the plantar surface while standing, walking, and at rest; stiffness of the plantar surface at rest; and lack of endurance of the entire foot on standing and walking. He denied having foot joint flare-ups. He reported inability to stand for more than a few minutes or walk more than a few yards. He wore custom fitted boots with custom orthotic inserts for bilateral foot pain and pes planus. On physical examination, there was evidence of painful motion at the incision site with standing and with palpation of the surgical scar area, and tenderness to palpation in the arch and across the ball of the left foot; there was evidence of tenderness to palpation in the arch and at the ball of the right foot. There was inward bowing with non-weight bearing for the left foot and with weight bearing for both feet that was not correctable with manipulation; there was no pain or spasm on manipulation. There was no forefoot or midfoot malalignment. There was moderate pronation of the left foot and mild pronation of the right foot. The arches were not present on non-weight-bearing or weight-bearing. There was 3 degrees of left heel valgus that was not correctible by manipulation, and 0 degrees of right heel valgus. The location of the weight bearing line was medial to the great toe bilaterally. There was no muscle atrophy of either foot. Gait was normal. X-rays showed no acute abnormality in either foot and no pes planus bilaterally; there was a stable appearance to the fixation hardware of the left foot which showed no evidence of failure or loosening. Based on this evidence, an April 2011 rating decision continued a 10 percent rating for status post arthrodesis left foot. On February 2014 VA treatment, the Veteran reported pain along the mid-portion of the first metatarsal shaft area of the left foot and along the metatarsal head of the first metatarsal. He reported swelling along the area of the first metatarsal. There was a noticeable decrease in arch height of the left foot with weight bearing that was not appreciable on X-ray. Range of motion was within normal limits. There was trace edema on the medial aspect of the left foot. Based on this evidence, an April 2014 rating decision granted service connection for bilateral pes planus, rated 10 percent, effective July 7, 2003. On March 2015 VA examination, the Veteran reported severe intermittent shooting pain and weakness and stiffness in the left foot. He reported wearing special shoes and orthotics and resting the foot to help with the pain. He reported that prolonged standing and any length or amount of walking made the pain worse. He reported aching pain in the center, arch area, and great big toe of the left foot. He denied flare-ups. He reported pain, lack of endurance, and incoordination. There was pain on use and manipulation of the left foot. There was no indication of swelling on use and there were no characteristic callouses. He used arch supports, built-up shoes, and orthotics for both feet. There was extreme tenderness of the plantar surface of the left foot that was improved by the orthopedic appliances. There was decreased longitudinal arch height of the left foot on weight bearing. There was objective evidence of marked pronation of the left foot that was improved by orthopedic appliances. The weight-bearing line fell over or medial to the left great toe; there was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was no inward bowing of the Achilles tendon, and no marked inward displacement and severe spasm of the Achilles tendon on manipulation, of either foot. There was left foot pain that did not contribute to functional loss. There was no functional loss for the left lower extremity attributable to the claimed conditions. January 2014 X-rays showed minimal left foot pes planus with calcaneal angle of 16 degrees and no evidence of hardware failure or loosening; there was no evidence of right foot pes planus. On March 2019 VA podiatry treatment, the Veteran reported the bony prominence on his left foot swelled and hurt at times. There was a noticeable decrease in medial arch with weight bearing, and small bony prominence on the dorsal left foot at the metatarsal-cuneiform area. The assessments included pes planus and small saddle-bone deformity. Podiatry clinic records note that in November 2019, because on continuing left foot pain on consultation with a podiatrist the Veteran decided to undergo a surgical procedure to remove the fixation hardware in his left foot. He underwent such surgery on December 6, 2019. The record reflects that his left first metatarsal has remained symptomatic since the surgery. On January 27, 2020 VA examination, the Veteran was noted to have developed a painful knot on the dorsum of the left foot, and he underwent surgery to remove a dislocated screw in late 2019; he was off from work as a massage therapist for 3 weeks. He reported that he was able to work but still worked less than usual hours. He reported dull achy intermittent pain over the dorsum of the left foot of 4/10 severity. He was dragging the left foot somewhat, had some imbalance, was putting more weight on the right foot, using custom made orthotics and special shoes since the surgery, and had some left foot weakness. A callus was noted on the left foot at the ball and great toe. Dull achy pain around 6/10 in severity in the left first metatarsophalangeal joint was worse with standing and ambulation, and he needed to take rest or use a stool when working. He reported that the right foot was hurting at the arch due to putting weight on the right leg. He denied that flareups impacted foot function. He reported being unable to stand and walk for too long; he could stand up to 2 hours and then start hurting, and he could walk for only 30 minutes; running and high impact activities were out of the question. He reported that sometimes lifting heavy things for a long time caused more left foot pain. Pes planus caused pain on use of both feet, with pain accentuated on use of both feet; there was no pain on manipulation of the feet. There was swelling on use of the left foot, and characteristic calluses were noted. Orthotics were used but both sides remained symptomatic and were not relieved. Decreased longitudinal arch height was noted on both feet on weight bearing. There was objective evidence of marked deformity (pronation, abduction) of the left foot; there was marked pronation of the left foot and the condition was not improved by orthopedic shoes or appliances; the right side was improved by orthopedic shoes or appliances. The weight-bearing line fell over or medial to the left great toe. Inward bowing of the Achilles tendon was noted to the left foot. There was marked inward displacement and severe spasm of the Achilles tendon on manipulation of the left foot that was not improved by orthopedic shoes or appliances. Left foot hallux valgus was noted to cause mild or moderate symptoms; right foot hallux valgus was mild and not symptomatic. The examiner opined that the other left foot condition, specifically the failed joint fusion performed in 1996 that required a hardware removal and new fusion with bone graft in 1998 and repeated failed hardware removal in 2019 with residual pain, was moderately severe, chronically compromised weight bearing, and required arch supports, custom orthotic inserts, or shoe modifications; surgery residuals included pain, swelling, impaired ambulation, weakness, and imbalance. Left foot pain resulted in less movement than normal, weakened movement, excess fatigability, incoordination and impaired ability to execute skilled movements smoothly, pain on non-weight bearing, swelling, instability of station, and interference with standing; bilateral foot pain resulted in pain on movement, pain on weight bearing, and disturbance of locomotion. Right foot pain was due to pes planus and occurred with prolonged standing and ambulation, mostly due to favoring the left foot; left foot pain was also aggravated by prolonged standing and ambulation. A mild dorsal deformity was noted in both feet that was nontender to the touch but reported as an area of pain during ambulation. The examiner opined that the Veteran has severe pes planus of the left foot with objective evidence of marked deformity (pronation, abduction), pain on use accentuated, indication of swelling on use, and characteristic callosity noted on medial aspect of the ball of the left foot. The examiner explained that the Veteran has pronounced pes planus of the left foot with marked pronation, marked inward displacement, and severe spasm of the tendon achilles on manipulation, not improved by orthopedic shoes or appliances. The examiner opined that recent surgery to remove loose hardware residual of the first metatarsal cuneiform joint status post arthrodesis, resulted in worsening left foot pain with standing and ambulation; in addition, left foot hallux valgus is diagnosed as a progression of both service-connected left foot conditions and it causes mild to moderate pain in the left great toe during ambulation. The examiner noted that the Veteran underwent a removal of loose hardware in late 2019; the hardware was placed during arthrodesis in 1998 (which is service-connected). The examiner noted that the Veteran had been experiencing pain in the left foot since the recent surgery and had not been able to work full time due to limited ability to stand and walk for extended periods of time. The examiner opined that bilateral pes planus was aggravated by the recent surgery as pain and swelling of the left foot had increased following the procedure and the Veteran had been favoring his left foot, thus putting more weight on the right leg, which was causing worsening pani due to pes planus of the right foot as well. The examiner opined that left foot hallux valgus was a progression of both service-connected conditions which led to abnormal anatomy and motion of the first metatarsal bone and abnormal biomechanics of the left foot, leading to increased stress and workload on the first left metatarsophalangeal joint with resultant hallux valgus. The examiner noted that the condition was painful and got worse following the recent surgery. The examiner noted that the right foot hallux valgus was not symptomatic and was caused by pes planus leading to abnormal pronation and abnormal biomechanics of the right foot, which led to increased workload on the first right metatarsophalangeal joint with resultant hallux valgus. The examiner noted that bilateral hammer toes were not symptomatic and were due to progress of the service-connected disabilities due to chronic pain, antalgic gait, and abnormal bilateral biomechanics of both feet causing increased wear and tear of the joints of both feet. In a February 2021 addendum, the examiner noted that the opinion regarding hammer toes was provided in error; the Veteran does not have hammer toes. The examiner opined that testing of range of motion in degrees is not required for foot exam per VA guidelines. The examiner opined that foot motion is affected by the ankle but ankle testing was not requested or required. The examiner opined that pes planus and hallux valgus do not affect foot range of motion. Based on this evidence, a February 2021 rating decision granted a 50 percent rating for bilateral pes planus, effective January 27, 2020. The February 2021 rating decision also granted a 20 percent rating for left foot hallux valgus with left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis, effective January 27, 2020. Additional VA treatment records throughout show symptoms largely similar to those found on the VA examinations described above. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Left foot hallux valgus with left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis The Veteran's left foot hallux valgus with left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis has been rated under Code 5284, for other foot injury. Under that Code, a 10 percent rating is warranted for moderate injury, a 20 percent rating is warranted for moderately severe injury, and a 30 percent rating is warranted for severe disability. A 40 percent rating is warranted with actual loss of use of the foot. The words "slight", "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds that, from July 7, 2003 to October 7, 2008 the reports of VA examinations, VA treatment records, medical statements, hearing testimony, and lay statements, overall, do not show that prior to December 6, 2019, a rating in excess of 10 percent was warranted for the disability. On September 2003 VA examination, the Veteran reported ability to walk long distances (for 2 or 3 hours), and to stand for up to 2 to 3 hours, and took no pain medications. On June 2006 VA examination, standing was limited to about an hour, and walking limited to two hours, each without significant pain; he walked with a normal gait, with no evidence of painful motion or instability. On October 7, 2008 VA examination, a worsening of impairment due to the disability was clearly shown. The Veteran reported walking limited to 50 yards of less before needing to pause due to pain; there was objective evidence of painful motion at the surgical site with standing and ambulation but it was not painful when not weight bearing; his gait was normal. On March 2011 VA examination, he reported inability to stand for more than a few minutes or walk more than a few yards; there was painful motion at the incision site with ambulation and on palpation. On February 2014 VA treatment, he reported pain along the mid-portion of the first metatarsal shaft area of the left foot, and pain and swelling and along the metatarsal head of the first metatarsal. On March 2015 VA examination, he reported severe intermittent shooting pain and weakness and stiffness in the left foot, and he wore special shoes and orthotics to help with the pain; however, left foot pain did not contribute to functional loss. The additional level of functional ability due to the disability shown from the October 7, 2008 examination date reasonably reflects a level of functioning impairment consistent with moderately severe foot injury, and warrants the assignment of a 20 percent rating for the disability from the October 7, 2008 examination date to December 6, 2019. Continuing the analysis, the record shows that to relieve complaints of pain that were associated with the fixation hardware implaced in the Veteran's left 1st metatarsal, the Veteran was scheduled for surgical removal of the hardware. The surgery was performed On December 6, 2019. The record reflects that while the Veteran was able to return to work 3 weeks after the surgery, the post-operative residuals have been symptomatic throughout since, and that an increased level of manifestations (over that shown prior to the surgery) is now shown On January 27, 2020 VA examination the consulting provider opined that the disability is no more than moderately severe; that of itself is not dispositive of the issue. The Board finds that the overall evidence reasonably supports a characterization of the disability picture presented by the service-connected left hallux valgus foot disability as severe injury, warranting a 30 percent rating under Code 5284. Loss on use of the foot is not shown, and a still higher rating is not warranted. Bilateral pes planus The Veteran's pes planus is rated under Code 5276. Under that Code, a 0 percent rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate flatfoot with symptoms including 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 warranted for unilateral severe flatfoot with symptoms including 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 bilateral severe flatfoot with symptoms including 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 alternately warranted for unilateral pronounced flatfoot with symptoms including 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 pronounced flatfoot with symptoms including 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. Code 5276 specifically allows only a maximum 50 percent rating unless there are exceptional or unusual circumstances warranting referral of the case for extraschedular consideration. 38 C.F.R. § 3.321. At the outset, the Board observes that symptoms of, and impairment due to the Veteran's separately rated left foot hallux valgus disability are considered in that rating and may be considered again in rating the bilateral pes planus. The Board finds that, from July 7, 2003 to January 27, 2020, the reports of VA examinations, treatment records, medical statements, hearing testimony, and lay statements, overall, do not show that prior to January 27, 2020 a rating in excess of 10 percent was warranted for the pes planus. On September 2005 VA treatment, the assessment was pes planus with excessive pronation aggravated on the left by postsurgical pain with retained hardware; X-rays showed mild flattening of the plantar arches. On June 2006 VA examination, both feet showed pes planus with forefoot pronation that was not deemed to be marked. On October 2008 VA examination, he denied any right foot symptoms. On March 2011 VA examination, there was inward bowing with non-weight bearing for the left foot and with weight bearing for both feet that was not correctable with manipulation; but there was no pain or spasm on manipulation and no forefoot or midfoot malalignment; there was moderate left foot pronation and mild right foot pronation. On March 2015 VA examination, there was pain on use and manipulation of the left foot but pain was not accentuated on use or manipulation; there was no indication of swelling on use or characteristic calluses; extreme tenderness of the plantar surface of the left foot and objective evidence of marked left foot pronation were improved by orthopedic appliances; and there was no inward bowing of the Achilles tendon, and no marked inward displacement and severe spasm of the Achilles tendon on manipulation, of either foot. The levels of functioning impairment described are encompassed by the criteria for the 10 percent rating assigned, and do not show that a higher rating was warranted prior to January 27, 2020. Continuing the analysis, while the assignment of the maximum schedular rating for bilateral pes planus from January 27, 2020 raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board's review of the evidence of record in the matter found that referral is not necessary. There is no evidence showing (or allegation of) symptoms or functional impairment not encompassed by the schedular criteria. VA examiners have not opined that the Veteran is unable to work due to his service-connected bilateral pes planus, or that the symptoms he has reported are not all encompassed by the schedular criteria. Consequently, separate ratings for complications are not warranted, and referral for extraschedular consideration is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from the bilateral pes planus. The symptoms and impairment described are consistent with the criteria for the 10 percent and 50 percent ratings assigned, and do not support that a higher rating is warranted. The Board finds that an increase in the staged ratings for bilateral pes planus is not warranted at any time during the appeal period under consideration. The preponderance of the evidence is against this claim, and the appeal in the matter must be denied. 5. Entitlement to a TDIU rating is denied. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran is service-connected for: major depressive disorder rated 50 percent prior to August 23, 2010, and 70 percent from that date; bilateral pes planus rated 10 percent prior to January 27, 2020, and 50 percent from that date; HIV, 30 percent; hallux valgus left foot with left foot (post-arthrodesis) arthrosis of the first metatarsal cuneiform joint (now 10 percent prior to October 7, 2008, 20 percent from October 7, 2008 to December 6, 2019, and 30 percent from December 6, 2019); right knee strain with tendonitis, 10 percent; and right foot hallux valgus and left foot residual scar, each 0 percent. The combined rating has been 70 percent or higher, throughout, with the mental disability rated 50 percent or higher throughout. Therefore, the schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) is met throughout, and the analysis turns to whether the service-connected disabilities have rendered the Veteran unemployable. The Veteran has not worked full-time for certain extended periods during the period for consideration. However, this of itself does not establish that his service-connected disabilities rendered him unemployable. On October 2004 VA mental health progress note, the Veteran's treating psychiatrist noted that he was involved in vocational rehab and planned to attend university in January 2005. The psychiatrist stated that she filled out a form stating she did not feel the Veteran's depressive symptoms would interfere with school. On June 2006 VA foot examination, it was noted that the Veteran's employment status was that he had been employed by a nonprofit organization until about a year prior. The Veteran reported that he had been unemployed for the previous year for other reasons than his bilateral foot problem. An October 2006 letter from the U.S. Postal Service's District Reasonable Accomodation Committee denied the Veteran's request for accommodation, concluding based on the information he and his treating physician submitted that his condition did not substantially limit a major life activity. The Veteran indicated that no accommodations were requested, and his treating physician stated that no special requirement or restrictions were needed. The conclusion was that he was not a qualified individual within the meaning of the Rehabilitation Act. A November 2006 letter from the U.S. Postal Service stated that the Veteran had been found medically unsuitable for the position of part-time flexible mail handler based on physical restrictions of no standing or walking for more than 4 hours a day. It was determined that these restrictions are not compatible with the strenuous activities required for the position. A December 2006 letter from the U.S. Office of Personnel Management noted the Postal Service's tentative determination that the Veteran is not qualified for the position of mail handler because of a medical or physical condition. The conclusion was that the Veteran's medical condition presents an unacceptable safety and health risk and is likely to adversely affect his ability to perform the full range of duties required for the position. On October 2008 VA mental disorders examination, the Veteran reported that he had been in school studying social work until about a year prior, but stopped because of poor concentration, lack of sleep, and insomnia; he could not remember material that he had read. He reported that he wanted to work and be productive, but was unemployed due to anhedonia, anergia, poor concentration, memory, attention, withdrawal, and irritability. On October 2008 feet and HIV-related illness examinations, the Veteran reported that he had been unemployed for 1 to 2 years due to chronic foot pain. On March 2011 VA mental disorders examination, the Veteran reported that he had taken a number of courses using the GI Bill but dropped out due to poor concentration, amotivation, and depressed mood. He reported that he had been unemployed for 2 to 5 years. He reported being fired from one job due to subpar performance and tardiness, which he attributed to his depression. He reported most recently working at Hillcrest, which he found e very difficult due to others' mental illnesses; he felt uncomfortable due to being the new person, negative comments from coworkers, and the perception that patients were treated poorly, and he was only there for 3 weeks. He reported having been fired from or quit jobs due to amotivation, poor concentration and memory, depressed mood, and irritability. On March 2011 VA feet examination, the Veteran reported that he had been unemployed for 2 to 5 years due to foot pain and no jobs being available. In a February 2014 VA medical statement, a VA psychiatric nurse practitioner stated that the Veteran was being treated for major depressive disorder, recurrent, moderate-severe. The practitioner opined that in addition to impairment caused directly by his depression, associated symptoms of anxiety had exacerbated his depression and affected his ability to deal ordinarily to life situations, which had caused sleep disturbances, interpersonal conflicts, relationship problems, and social isolation. The nurse opined that, taken all in consideration, it would be understandable that the Veteran's major depressive disorder, anxiety disorder not otherwise specified, and inability to cope with psychosocial stressors hinder his focus and concentration necessary to complete job related tasks as well as interfere with his day to day activities. In a May 2014 statement, the Veteran stated that his major depressive disorder made finding and keeping employment difficult. On March 2015 VA mental disorders examination, the Veteran reported that he had done some volunteering a couple of years earlier; he thought he should be compensated for his time and was vocal about this, and he was asked not to continue working with the organization. He had not worked since the previous exam. On March 2015 VA feet examination, the examiner opined that the Veteran's foot disabilities impact his ability to perform occupational tasks, though the examiner did not elaborate. In his July 2015 application for TDIU, the Veteran stated that his psychological conditions, feet conditions, and HIV prevent him from securing or following any substantially gainful occupation. He stated that his disabilities affected full-time employment from January 2002, and he last worked full-time and became too disabled to work in July 2003. He did not list any former employers. He reported having a high school education with 2 years of college; additional education included certified HIV and AIDS testing and education, and an associate degree in criminal justice. In a July 2015 private employability opinion, the reviewing psychologist noted that the Veteran had had a number of work attempts since service, all for short durations. The Veteran reported being employed as a community health adviser until his depression interfered with his ability to function on the job and was dismissed. He reported that he attempted to work as a mental health aid for two weeks before resigning due to his depression. He reported working for 3 months in 2005 in a seasonal job as a stock clerk, and he worked part-time as a peer educator. The reviewing provider opined that the Veteran was restricted to sedentary or light duty work as of July 2006 due to his foot impairments; he was noted to have poor response to frustration and below average mental stamina, communication skills, and physical stamina on August 2007 examination; and by August 2008 his diagnosis was major depression, recurrent, moderate/severe. The provider opined that since that time and possibly as far back as 1996, the Veteran has struggled with psychological conditions currently diagnosed as major depressive disorder, which is reflected in the treatment records and demonstrated by his inability to sustain and maintain a job. The provider opined that when considering his education, work history, and psychological conditions currently diagnosed as major depressive disorder, the Veteran as of August 17, 2008 would have had a 100% loss of employability, and his HIV and foot impairment adds to the weight of his inability to work. The provider opined that it could be argued and reasonable to consider the Veteran as having a 100% loss of employability as of August 23, 2007. A February 2017 VA Vocational Rehabilitation employment information report states that the Veteran had been employed full time as a massage therapist since the previous month. It was noted that the job was suitable for his service-connected disabilities. An April 2017 note stated that it was determined in March 2017 the employment was not suitable as the Veteran had mentioned back and feet problems, and he did not want to pursue other employment; he pursued and received accommodations from his employer, and he reported the job was going well and not aggravating his service-connected disabilities. On March 2019 VA treatment, the Veteran reported dealing with stressors related to his job; he wanted to find employment in a setting that suited his philosophy of massage, and he currently felt he was led to upsell rather than focus on the quality of his work. In a December 2019 statement, the Veteran stated that he worked full time as a licensed massage therapist, a profession that required daily prolonged standing and weight bearing. On January 2020 VA mental disorders examination, the Veteran reported working as a licensed massage therapist part-time for the past 6 months; he denied problems performing his job, and he had some regular clients but was still building clientele so his work was not consistent. He reported that his previous job lasted for about 4 months before ending in July 2019 due to interpersonal issues; he reported changes in management that caused conflict between the old manager and employees, and conflicts over workspace and materials, and he felt several people attempted to bully him because he was new, leading him to lose weight and have problems sleeping. He reported working for a different massage practice for 3 years before that, and previous work as an HIV/AIDS educator with a nonprofit, as an AIDS peer educator, and support group work. On January 2020 VA feet examination, the examiner opined that all of the Veteran's diagnosed foot conditions interfere with prolonged standing, prolonged walking, jumping, running, and lifting and carrying heavy loads. Significantly, the Veteran reported on that he was able to return to work as a massage therapist, albeit working less than usual hours, and that he could stand for up to 2 hours or walk for up to 30 minutes before experiencing increased pain. VA and non-VA providers have opined that the Veteran's service-connected psychiatric and foot disabilities impact his ability to engage in certain types of work. The overall disability picture presented suggests that the symptoms and impairment associated with the Veteran's service-connected disabilities would likely preclude work in occupations that require strenuous physical labor/prolonged standing (longer than reported tolerable based on the Veteran's reports) or significant interpersonal interaction with co-workers and supervisors. However, the service-connected disabilities are not shown to be such that due to the disabilities he is precluded from participating in the types of work that do not require significant interpersonal relationships with co-workers or supervisors, substantial physical exertion/lifting, or prolonged standing, but can be performed seated or including limited standing/walking. In fact, despite the submission and the private provider's opinion that the Veteran is, and has been, 100 percent unemployable, the record shows he has found employment in an occupation that is not incompatible with/precluded by his service-connected disabilities. There is nothing in the records suggesting he would be incapable of engaging in such work -with the types of accommodations he has been provided. The most recent indication of his employment status, on the January 2020 VA examinations, was that he was working only part time, but this was attributed to his being in the process of building up his clientele and recovering from foot surgery the previous month; there was no indication or allegation that he would be unable to resume full-time work in such position. In summary, the overall record does not support that due to his service-connected disabilities, the Veteran is rendered unable to obtain and maintain substantially gainful employment consistent with his education and experience. The Board has considered the Veteran's statements in support of the appeal, and acknowledges that due to his service connected disabilities he clearly has work limitations, particularly for physically demanding types of work or with significant interpersonal interactions with others, and that related functional impairment limits his occupational opportunities, but is unable to find that he is shown to be precluded from engaging in regular substantially gainful employment due to his service-connected disabilities. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.