Citation Nr: 24008167 Decision Date: 02/16/24 Archive Date: 02/16/24 DOCKET NO. 18-50 969 DATE: February 16, 2024 ORDER Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for a left foot condition is denied. Entitlement to an initial disability rating in excess of 70 percent for depressive disorder is denied. REMANDED Entitlement to service connection for a hernia is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran's pes planus was noted upon enlistment; there is no persuasive evidence that this disability was aggravated beyond its natural progression in service. 2. Throughout the period on appeal, the Veteran's depressive disorder more closely approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but was not productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. Entitlement to service connection for a right and left foot condition have not been met. 38 U.S.C. §§ 1110, 1132, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. 2. The criteria for an initial disability rating in excess of 70 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1993 to December 1993. He also served in the Navy Reserves from October 2000 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the service connection issues on appeal and a September 2018 rating decision that granted service connection for depressive disorder and assigned an initial 50 percent rating, effective March 23, 2016. In an April 2020 rating decision, the RO granted a higher initial 70 percent rating for depressive disorder, effective from the March 23, 2016 grant of service connection. Although the Veteran originally requested a hearing before the Board, he withdrew the request in December 2022. The Board remanded this case in April 2023 for further development. The Board is satisfied that there was substantial compliance with the prior remand with regards to the service connection claims for right and left foot conditions and the increased rating claim for depressive disorder. See Stegall v. West,?11?Vet. App. 268, 271?(1998);?D'Aries?v. Peake,?22?Vet. App.?97, 105?(2008). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). SERVICE CONNECTION 1. Entitlement to service connection for a right foot condition is denied. 2. Entitlement to service connection for a left foot condition is denied. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). In this case, asymptomatic and mild pes planus was noted on the December 1992 enlistment examination. The Veteran's service treatment records did not include a separation examination. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the dispositive issue in this regard is whether the Veteran's preexisting pes planus was aggravated by his service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, supra. Under section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In determining whether there has been aggravation, the statute and regulation indicate that the first question to be asked is whether there was an increase in disability. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a preexisting injury or disease will be considered to have been aggravated by service "where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease"). In other words, if there is an increase in disability during service, aggravation is presumed, and this presumption can only be rebutted with clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306 - 307 (1993). If VA determines that there has been an increase in disability, the presumption of aggravation applies regardless of whether the degree of worsening is enough to warrant compensation under the VA rating schedule. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran generally contends that his preexisting pes planus was aggravated during service due to marching long distances and up hills in tight boots. Aside from the December 2002 enlistment examination, the Veteran's service treatment records do not document any findings related to any complaints, treatment, or diagnosis for any foot problems. As noted above, the service treatment records do not include a separation examination. However, at the Veteran's August 2000 enlistment examination upon entering Naval Reserve service, the clinical evaluation results for his feet were normal and his associated report of medical history did not contain any reports of foot problems. In an August 2023 VA examination, the Veteran was diagnosed with bilateral pes planus. He reported that the onset was in 1992, specifically that as soon as he joined the Marines, he had foot pain. He wore insoles daily. However, the examiner noted that while the Veteran reported wearing arch supports constantly, he wore flip flops to the examination. The examiner opined that while temporary aggravation was plausible, there was no evidence of permanent aggravation of the Veteran's preexisting right and left foot condition. She noted that the December 2022 enlistment examination noted a clear diagnosis of asymptomatic and mild pes planus. She noted that his dates of service were brief and absolutely not enough time to cause his pes planus to be aggravated permanently. Further, upon examination, his pes planus was mild and his diagnosis upon enlistment was also mild pes planus. As such, it was unlikely that the Veteran's brief tenure in the Marines, less than two months, lead to permanent aggravation of his pes planus. The examiner is further found that it was more likely that the Veteran's pes planus naturally continued and worsened with his obesity. According to post-service VA treatment records, the Veteran reported feet pain and numbness in November 2022 with his first podiatry visit was in December 2022 for a diabetic foot check for numbness and tingling in his feet and bilateral pes planus. His range of motion and biomechanical examinations were pain-free, functional, and within normal limits. All muscle groups tested were normal in strength and a brief gait analysis showed no pain or limping. In stance and in gait, a flexible pes planus deformity was observed on both feet. Based on a careful review of the subjective and clinical evidence, the Board finds that the evidence persuasively weighs against finding that service connection is warranted for the Veteran's bilateral pes planus. The Board finds that the clinical evidence does not show that the Veteran's preexisting pes planus increased in severity during his active duty service. Rather, the evidence demonstrates that following his separation from active duty service in August 2000, the Veteran's feet were both normal. Further, the August 2023 VA examiner also opined that it is more likely that the Veteran's pes planus naturally continued, as it is chronic and the natural history is for it to continue and will worsen with obesity; the Veteran is obese and his previous medical exams support that he has been obese for a long time; ultimately ,that it was not due to his brief time in active duty. Given the objective findings, the Board finds that the Veteran has not presented any competent and credible evidence of a worsening of his pes planus during active duty service so as to warrant a presumption of aggravation as contemplated by 38 U.S.C. § 1153. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a bilateral foot condition is warranted. Rather, the evidence persuasively weighs against finding in favor of the Veteran's service connection claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is therefore not for application as to these claims. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). 1. Entitlement to an initial disability rating in excess of 70 percent for depressive disorder is denied. The Veteran's depressive disorder is currently rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434. Under Diagnostic Code 9434, which is governed by a General Rating Formula for Mental Disorders, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. 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 solely on the basis of social impairment. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 - 17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 224 - 26 (2018). In reaching the below conclusions, the Board has considered the Veteran's statements regarding the severity and frequency of psychiatric symptoms. The Veteran is competent to report on factual matters of which she has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). Thus, in the assignment of each of the ratings, the Veteran's statements have been weighed in with the medical evidence during each of the staged periods as discussed below. In a June 2017 lay statement, the Veteran's father indicated that the Veteran seemed distant at family outings and functions. In a July 2017 VA examination, the Veteran was diagnosed with persistent depressive disorder. The examiner found that it resulted in a mental condition being formally diagnosed, but with symptoms not severe enough either to interfere with occupational and social functioning or requiring continuous medication. His psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, circumstantial speech, circumlocutory or stereotyped speech, disturbances of motivation and mood, and obsessional rituals which interfere with routine activities. The Veteran was married with three children and one stepdaughter. He was also currently employed as a license vocational nurse (LVN) at a VA hospital. He reported being able to carry out his duties and responsibilities without any marked difficulties. In a July 2023 VA examination, the Veteran was diagnosed with posttraumatic stress disorder (PTSD) and depressive disorder. The examiner found that it was not possible to differentiate what symptoms or impairments were attributable to each diagnosis. The examiner found that the Veteran's psychiatric disorders resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. His psychiatric symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, memory loss for names of close relatives, own occupation, or own name, flattened affect, 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, obsessional rituals which interfere with routine activities, and neglect of personal appearance and hygiene. Behavioral observations showed that the Veteran was cooperative with normal speech and thought processes (thought, at times, he recalled incidents of trauma), anxious and depressed mood, flattened affect, passive suicidal thoughts, and sleep disturbance. He had no delusions or auditory or visual hallucinations. The Veteran reported that he did not have friends. He had been married for 22 years and described his relationship as "great and rocky at times." He had four children. He kept to himself and rarely left the house unless required. He was employed as an LVN. The Veteran reported difficulties falling and staying asleep, tiredness, and issues with his hygiene. He used to get verbally abusive and medications helped about five years prior. According to post-service private treatment records, the Veteran had symptoms of depression, fatigue, low energy, lack of interest in anything or desire to socialize, and anxiety. In June 2014, he reported that did not grow up with large family gatherings with much interaction and these could be stressful for him. Two weeks prior, he felt nauseous at a large gathering with his wife's family and felt uncomfortable. He was accompanied by his wife at this appointment who offered support. According to post-service VA treatment records, the Veteran's psychiatric symptoms included depression, anxiety, difficulties concentrating and focusing, fatigue, low energy, hopelessness, stress, feelings of detachment, passive suicidal ideation, nightmares, hypervigilance, and auditory and visual hallucinations under acute anxiety. Mental status examinations showed that the Veteran consistently had normal speech, thought process and content, fair to good insight and judgment, mood ranging from okay to depressed or anxious, and affect ranging from stable/euthymic to mildly restricted. The Veteran reported that he was unable to put his boot camp experiences past him and that he carried the weight of his "failure" with him. He tended to ruminate about his problems and becoming preoccupied with his shortcomings. The records show that the Veteran lived with his wife and children and was employed as an LVN at a VA hospital. He had meaningful family relationships. In fact, he took a week off from work to care for his daughter who had an emergency appendectomy in May 2023. Based on a careful review of the subjective and clinical evidence, the Board finds that the evidence persuasively weighs against finding that an initial disability rating in excess of 70 percent is warranted for the Veteran's depressive disorder. In other words, the Veteran's depressive disorder was mostly closely characterized by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but was not productive of total occupational and social impairment. In that regard, the Board finds that the following provides the most probative evidence demonstrating the frequency, severity, and duration of the Veteran's mental health symptomatology as well as its functional impact and that such falls within the criteria for a 70 percent rating prior to January 1, 2020: (1) the July 2017 VA examination finding that the Veteran's depressive disorder resulted in a mental condition being formally diagnosed, but with symptoms not severe enough either to interfere with occupational and social functioning or requiring continuous medication; (2) the July 2017 VA examination noting that the Veteran was currently employed as an LVN at a VA hospital and able to carry out his duties and responsibilities without any marked difficulties; (3) the July 2023 VA examination finding that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood; (4) the July 2023 VA examination noting that the Veteran described his 22 year marriage as "great and rocky at times;" (5) post-service VA treatment records showing that the Veteran had meaningful family relationships and was employed. While the Veteran had significant occupational and social impairment, the record does not show that he had total social impairment. The Veteran was still maintained meaningful relationships with his wife and children. In fact, he was able to support them. He was also employed as an LVN throughout the period on appeal. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of an initial 100 percent rating. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial disability rating in excess of 70 percent for depressive disorder. Rather, the evidence persuasively weighs against finding in favor of the Veteran's increased rating claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), is therefore not for application as to these claims. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND 1. Entitlement to service connection for a hernia is remanded. 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for a neck condition is remanded. 4. Entitlement to service connection for a back condition is remanded. 5. Entitlement to service connection for a right knee condition is remanded. 6. Entitlement to service connection for a left knee condition is remanded. 7. Entitlement to service connection for sleep apnea is remanded. Initially, with regards to active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), service connection may be granted for a disability resulting from injury or disease incurred or aggravated during a period of ACDUTRA, or from an injury incurred or aggravated during a period of INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. The Veteran's claims file, however, does not contain specific information about all of his periods of ACDUTRA and INACDUTRA necessary to adjudicate his service connection claims. Thus, remand is necessary to verify the Veteran's specific periods of ACDUTRA and INACDUTRA service. The Board finds that the August 2023 VA examination opinions are inadequate as they are based primarily on the lack of in-service treatment and do not address the Veteran's lay statements as to the onset and continuity of his disabilities. The Board emphasizes that it is not determining whether or not the Veteran's statements as to the onset and continuity of his disabilities are credible at this time, as the additional development set forth in the directives below could impact that determination. Although the Board is requesting medical opinions regarding the Veteran's lay assertions, this is for thoroughness and not based on a finding that such assertions are credible. As such, a remand is warranted to obtain supplemental VA medical opinions. Additionally, the Board finds that the Veteran submitted medical treatise articles regarding the link between headaches and psychiatric disabilities. As such, a remand is warranted for a secondary service connection opinion. The matters are REMANDED for the following action: 1. Verify all of the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Naval Reserves, to include retirement points statement indicating such periods. The RO should issue a memo clearly identifying such dates as verified. If verification of ACDUTRA or INACDUTRA service is unobtainable, a negative reply should be noted in writing and associated with the claims file. 2. Obtain a supplemental VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran's hernia, headaches, neck condition, back condition, knee conditions, and sleep apnea. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should address the following: (a) Opine whether the Veteran's hernia, headaches, neck condition, back condition, knee conditions, and/or sleep apnea was incurred in, or was otherwise related to, his active duty service or any verified period of ACDUTRA. The examiner is also asked to opine whether the Veteran's hernia, neck condition, back condition, and/or knee conditions are disability resulting from an injury incurred during any verified period of INACDUTRA. In doing so, the examiner should address the Veteran's lay statements as to the onset and continuity of his disabilities. With regards to the etiology of the Veteran's hernia, the examiner should address the September 2018 private medical opinion as to his hernia. (b) Opine whether the Veteran's headaches are due to or aggravated by his service-connected depressive disorder. In doing so, the examiner should address the medical treatise articles the Veteran submitted suggesting a link between psychiatric disorders and headaches. (c) Opine whether the Veteran's sleep apnea is due to or aggravated by his service-connected depressive disorder. In doing so, the examiner should address the medical treatise articles the Veteran submitted suggesting a link between psychiatric disorders and sleep apnea. A complete rationale must be provided for all opinions expressed. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ko, Elise 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.