Citation Nr: 24017992 Decision Date: 04/26/24 Archive Date: 04/26/24 DOCKET NO. 17-10 958 DATE: April 26, 2024 ORDER Entitlement to a disability rating in excess of 30 percent for acquired mental health disability prior to January 26, 2016, is denied. Entitlement to 50 percent disability rating for acquired mental health disability effective January 26, 2016, is granted. Entitlement to a 70 percent disability rating for acquired mental health disability effective April 28, 2017, is granted. Entitlement to a disability rating in excess of 70 percent for acquired mental health disability after April 28, 2017, is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. Prior to January 26, 2016, the Veteran's acquired mental health disability was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's acquired mental health disability was manifested by social and occupational impairment with reduced reliability and productivity since January 26, 2016 and before April 28, 2017. 3. The Veteran's acquired mental health disability has been manifested by deficiencies in most areas, including work, family, judgment, and mood, since April 28, 2017. 4. The Veteran's acquired mental health disability does not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for acquired mental health disability prior to January 26, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a 50 percent disability rating for acquired mental health disability effective January 26, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a 70 percent disability rating for acquired mental health disability effective April 28, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to disability rating in excess of 70 percent for acquired mental health disability after April 28, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from July 1990 to April 1992 with additional periods of service in the Navy Reserve. He served in Southwest Asia and was awarded the Combat Action Ribbon. This matter comes before the Board on appeal of rating decisions issued in December 2014 which denied entitlement to service connection for bilateral pes planus and for several acquired mental health disabilities. Also on appeal is a February 2017 rating decision which granted service connection for acquired mental health and assigned a 30 percent disability rating effective October 2013 and a subsequent rating decision in June 2020 which granted a 50 percent disability rating for mental health effective June 2020. This matter falls within the legacy system of adjudication. The claim of service connection for bilateral pes planus and for increased disability rating for mental health were previously before the Board in April 2022, when the service connection was denied, and the increased rating claim was remanded for additional action. The claim for increased disability rating for mental health was again before the Board in May 2023, when a 50 percent disability rating was granted effective February 14, 2020, a rating higher than 30 percent was denied before that date, and a rating higher than 50 percent was denied after that date. The Veteran appealed both the denial of service connection for bilateral pes planus and the assigned disability rating for mental health to the Court of Appeals for Veterans Claims (Court) which issued a Memorandum Decision in August 2023 regarding service connection, and a Joint Motion for Partial Remand (JMR) in January 2024 regarding the disability rating for mental health. These actions by the Court vacated the Board's decisions and directed the Board to take further specific action on the claims. The Board notes the April 2021 statement submitted by the Veteran's wife regarding injuries to the Veteran's right leg sustained as a result of treatment for his mental health disability and accompanying sleep disturbances. The record does not reflect that any claim has been filed with respect to these injuries or any resulting disability from them. Under VA regulations, the right leg injuries and/or disability would be separate from the mental health disability and therefore is not appropriate for consideration in the discussion below. Entitlement to a disability rating in excess of 30 percent for acquired mental health disability prior to January 26, 2016 Entitlement to a 50 percent disability rating for acquired mental health disability effective January 26, 2016 Entitlement to a 70 disability rating for acquired mental health disability effective April 28, 2017 Entitlement to a disability rating in excess of 70 percent for acquired mental health disability after April 28, 2017 The Veteran is service-connected for an acquired mental health disability described variously as other specified trauma and other stressor disorder and as posttraumatic stress disorder (PTSD) as a result of his experiences in combat. A 30 percent disability rating has been assigned as of the date of claim in October 2013, with a 50 percent disability rating assigned effective February 14, 2020 by the Board decision in August 2023. The appeal to the Court sought a higher disability rating for the entire appeals period since the date of claim, to include after February 2020. The Board has therefore reviewed the entirety of the evidence to determine eligibility for a higher rating. The JMR specifically directed the Board to consider and discuss the private opinions provided in May 2017 and in March 2021, which the Board has done below. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), warrants a 30 percent rating. 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, warrants a 50 percent rating. 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, warrants a 70 percent rating. 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, warrants a 100 percent rating. 38 C.F.R. § 4.130. The Veteran was afforded a VA examination in November 2014 to assess the nature and severity of his mental health disability. (See C&P Exam, 11/03/2014.) At that time, he reported worsening sleep disturbance, irritability, hyperstartle response, problems with concentration, mild memory loss, depressed mood, and anxiety. He reported that his young daughter told him he was "always gripey." However, he did not miss work, maintained a committed marriage despite strain and grief from multiple pregnancy losses, and got together regularly with friends to watch football. At that time, the VA examiner stated that the Veteran's symptoms did not completely satisfy the definitional requirements for a PTSD diagnosis. His disability was described as other trauma and stressor-related disability and the examiner indicated that it resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A private treatment note from Dr. Ponder dated July 2015 described the Veteran's mental health disability as manifesting in social anxiety and insomnia as a result of two specific stressor events during combat. (See Medical Treatment Record, 12/03/2015.) In January 2016, the Veteran underwent a mental health evaluation for treatment planning at VA. (See CAPRI, 02/10/2017.) He denied having any problems from his mental health disability at work, noting that he got along well with others and did not have any issues with tardiness or absenteeism. However, he was concerned that his mental health symptoms were making it increasingly difficult for him to function day to day. He reported feelings of depression and anxiousness, experiencing unwanted memories and flashbacks, having physical reactions to recalled trauma, distancing himself from others, and having lost interest in many previously pleasurable activities. The Veteran indicated that he felt emotionally numb, was prone to angry outbursts, had difficulty concentrating, and had hyperstartle reactions and hypervigilance. He denied having issues with alcohol or drugs or experiencing any suicidal or homicidal ideation, with one exception. He reported experiencing suicidal ideation on one instance in the past when he separated from his first wife. The provider noted no evidence of hallucinations, delusions, or psychotic symptoms. Another VA mental health evaluation in April 2017 officially diagnosed PTSD and noted that his symptoms had been present for at least 4 or 5 years. (See CAPRI, 12/03/2019.) He was having difficulties at his job including paranoia that people were trying to get him, as well as marital problems and trouble connecting with his daughter. He reported that his nerves were bad, leading him to isolate himself in his room and being unable to tolerate noise. He reported snapping at his daughter and having difficulty getting along with people and socializing. He had problems staying asleep, mood fluctuations, was easily agitated and frequently irritable and became anxious in large crowds. He described his depression as 6 or 7 out of 10 and reported that he didn't want others to hurt him. He felt sluggish and inadequate and experienced restlessness, nervousness, racing thoughts, sweating, and headaches. An evaluation completed by Dr. Ponder in May 2017 was submitted by the Veteran's attorney in March 2020. (See Medical Treatment Record, 03/16/2020.) Dr. Ponder noted that the Veteran met the criteria for a diagnosis of PTSD and listed symptoms supporting that diagnosis including emotional distress, hypervigilance, and difficulty experiencing positive emotions which had negative impacts on his work and personal life. The provider specifically cited the Veteran's reported deficiencies in family relations, persistent irrational fears, speech intermittently illogical or irrelevant, deficiencies in mood, intermittent inability to perform activities of daily living, intrusive traumatic recollections, deficiencies in work or school, gross impairment of thought processes and communication, unprovoked irritability and hostility, depression which impacted his ability to function independently, and inability to establish and maintain relationships. While most areas of daily functioning were identified by the provider as moderately limited, the Veteran was noted to be markedly limited in the ability to maintain concentration for long periods and the ability to respond appropriately to changes in the work setting. The provider noted that the Veteran's mind tended to wander, and he was prone to paranoia regarding violence and hostile situations. It was estimated that the Veteran's symptoms would prevent him from going to work about two days per month. A statement from Dr. Ponder dated in September 2018 described the Veteran's PTSD as manifested by severe social anxiety which limited his ability to perform daily work and family routines and led to complications performing his daily work duties. He also had an inability to focus leading to work impairment, significant prolonged periods of irritability leading to marriage instability in the past, and intermittent paranoia at work. He displayed a lack of proportionate responses, rapidly losing control of his emotions with little provocation, where any small irregularity in his daily pattern led to a marked emotional response, including physical manifestations such as anger, crying, and tremors. The Veteran was also reported to suffer from memory deficits implicating many high-level functions but also daily short-term retention. A Disability Benefits Questionnaire (DBQ) completed in June 2020 noted that the Veteran's mental health disability was occasionally manifested by work impairment from an inability to focus. (See C&P Exam, 06/16/2020.) The Veteran's wife reported that he had a bad temper and tended to isolate himself. While he had never been violent, he had broken a vacuum cleaner when angry. The DBQ was completed strictly on a records review basis and considered only medical reports since the November 2014 VA examination and in-person interview with the Veteran and his wife. The opinion offered was that the Veteran's disability was consistent with the criteria for a 30 percent disability rating, or occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran submitted a psychological evaluation completed by a Dr. Didio in March 2021. (See Medical Treatment Record, 03/23/2021.) Dr. Didio provided a diagnosis of PTSD related to the Veteran's experiences in service and noted that this was manifested by social isolation, concentration difficulties, lack of trust in others, fear, and avoidance of social situations. The provider indicated his belief that previous evaluations of the Veteran had failed to uncover the true extent and nature of his mental health issues and that his report provided a more comprehensive review and a more complete historical perspective. He offered the opinion that the Veteran was currently suffering from social and occupational impairment, with deficiencies in the areas of work, family relations, judgment, concentration, and mood. He was unable to effectively interact socially due to a compromised mental status and he was emotionally unstable which was likely to cause serious difficulties in the workplace. He offered the additional opinion that the Veteran should be considered totally psychiatrically disabled and unable to perform sustained competitive fulltime employment as a result of his service-connected mental health disability. A statement dated in April 2021 was submitted by the Veteran's wife providing her perspective on his symptoms and ability to function. (See Buddy/Lay Statement, 06/04/2021.) She is a nurse and was able to describe a worsening disability picture throughout the 12 years of their marriage. She noted that he had suffered from increased sleep impairment over the years with worsening nightmares and sleep walking which had not responded to medical treatment. One of the medications prescribed for these difficulties had resulted in an incident in February 2020 where he collapsed several times and sustained injuries to his right leg including a fracture and strained muscles. This medication was discontinued, and his sleep problems have continued to worsen which has in turn aggravated his other mental health symptoms including anxiety and depression. A VA examination completed in August 2022 noted that the Veteran was still gainfully employed at the Mercedes Benz parts factory and reported having good friends and a strong attachment to his 11-year-old daughter. (See C&P Exam, 08/04/2022.) He experienced ongoing sleep disturbances, with sleep limited to about 4 hours per night, and he had episodic anxious and depressive periods with both "good days" and "bad days." The examiner indicated that the Veteran's disability picture was consistent with one of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or service connection controlled by medication. After reviewing the entirety of the record, with specific attention to the documents discussed above, the Board finds that a disability rating higher than 30 percent is not warranted prior to January 26, 2016. Specifically, at that time both the 2014 VA examination and the 2015 note from Dr. Ponder describe the Veteran's symptoms as involving sleep disturbance, depression, anxiety, and irritability. However, he still had frequent interactions with his friends and was not having any problems in his employment. Despite later statements that the Veteran's more severe disability picture dated back to 2010 (see medical treatment record 03/16/2020), the contemporaneous records from VA and private providers such as Dr. Ponder do not reflect a disability picture worse than the equivalent of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. For these reasons, entitlement to a disability rating in excess of 30 percent prior to January 26, 2016, is denied. As of January 26, 2016, however, the record reflects that the Veteran's disability picture had worsened. At that time, he sought mental health assistance through VA because of his concern about those worsening symptoms. The mental health assessment and his responses to the PTSD questionnaire show a disability picture more consistent with reduced reliability and productivity. He was specifically reporting difficulty concentrating, disturbances of motivation and mood, loss of interest, angry outbursts, and physical reactivity to disturbing memories and flashbacks. Therefore, the Board finds that entitlement to a 50 percent disability rating for acquired mental health disability is shown as of January 26, 2016. A still-higher 70 percent evaluation is not warranted for this period as the overall disability picture is not consistent with deficiencies in most areas. Indeed, during this period he was still not experiencing difficulties occupationally. Moreover, while he reported loss of interest in activities he had enjoyed in the past, this is deemed contemplated by disturbances in motivation and mood. The Board also acknowledges the reference to one past instance of suicidal ideation when he separated from his first wife. The historical information in the examination report indicates that this would have been around 2008 or earlier, and thus outside the rating period for consideration. The evidence shows that the Veteran's disability picture continued to worsen and as of the date of his VA mental health evaluation on April 28, 2017, the Board finds that it was equivalent to one of deficiencies in most areas including work, family, judgment, thinking, and mood. Specifically, the evidence shows that the Veteran was more withdrawn from his family than ever and had increased angry outbursts and marital problems. His paranoia had increased, particularly at work, and he had difficulty tolerating noise and being around other people. He specifically stated that he isolated because he didn't want other people to hurt him, and he was depressed most of the time. Dr. Ponder's report of May 2017, confirmed this disability picture and reflected persistent irrational fears, speech intermittently illogical or irrelevant, deficiencies in mood, intermittent inability to perform activities of daily living, intrusive traumatic recollections, deficiencies in work or school, gross impairment of thought processes and communication, unprovoked irritability and hostility, depression which impacted his ability to function independently, and inability to establish and maintain relationships. For these reasons, the Board finds that a 70 percent disability rating is appropriate as of April 28, 2017. The Board has considered entitlement to a still higher rating of 100 percent, which requires evidence of total occupational and social impairment. The Board notes the March 2021 statement by Dr. Didio that the Veteran was totally psychiatrically impaired and unable to engage in substantially gainful employment. However, the Board also notes that the August 2022 VA examination reflects that the Veteran is still gainfully employed at the Mercedes Benz parts plant, had a deep emotional attachment to his daughter, and reported having good friends. These points all reflect that the Veteran does not exhibit total occupational and social impairment. Therefore, a 100 percent disability rating is not warranted in this case. REASONS FOR REMAND Entitlement to service connection for bilateral pes planus The Veteran seeks service connection for bilateral pes planus, asserting that the condition noted at the time of service entrance was described as moderate and asymptomatic was worsened in service because of the wearing of military boots and became symptomatic and required treatment following his service. The Veteran's service treatment records show no evidence of complaints or treatment of foot problems in service and his Navy Reserve entrance examination following active duty also described the Veteran's bilateral pes planus and moderate and asymptomatic. There is evidence of record that the Veteran sustained subsequent foot injuries during civilian employment. His current foot disabilities are diagnosed as bilateral pes planus, acquired hallux valgus, and acquired hammertoe. The Veteran was afforded a VA examination in November 2014 which offered the opinion that the Veteran's bilateral pes planus clearly and unmistakably preexisted his military service and was not shown to have worsened during active duty service. In rendering this opinion, the examiner cited military service records including those in the Navy Reserve which reflected moderate and asymptomatic condition at service entrance and separation. The examiner noted the Veteran's reports of experiencing pain in service and since service separation but did not provide any analysis of whether reported pain as experienced by the Veteran, which he is medically competent to testify of, could be considered aggravation of the underlying condition. The Memorandum Decision in August 2023 found that failure to address the Veteran's reports of foot pain and of having reported foot pain in 1992 at the Navy Reserve examination a short time after discharge from active duty service rendered the opinion inadequate. Specifically, the Court found that there was nothing in the opinion that reflected "a reasoned medical explanation" for whether the Veteran's repeated complaints and experiences of pain could be considered aggravation of a formerly asymptomatic disability. An opinion with such a reasoned medical explanation of whether aggravation is shown by complaints of pain related to a disability previously described as asymptomatic is necessary on remand. In the interests of a full and complete record, such opinion should accompany an examination of the Veteran's feet. The matters are REMANDED for the following action: Afford the Veteran a VA examination conducted by a podiatrist or similarly qualified foot specialist to address the Veteran's bilateral pes planus claim. Specifically, the examiner should review the entirety of the evidence, to include a history obtained from the Veteran during the examination. The examiner is advised that the Veteran is legally competent to provide evidence regarding his subjective experiences of pain and other symptoms even without medical training to address the causes. The examiner is also advised that the Veteran is deemed credible unless the examiner can articulate a clear medical reason why the history provided by the Veteran should be discounted. The examiner is advised that the question to be addressed is whether there is clear and unmistakable evidence that the Veteran's moderate asymptomatic pes planus was not aggravated or worsened as a result of his active duty military service. In answering this question, the examiner is asked to provide a 'reasoned medical explanation' as to whether symptoms and complaints of pain are evidence of worsening of a disability previously described as asymptomatic. The examiner should specifically cite to any medical record or other documentary evidence which informs the opinion. The examiner is also asked to cite to any medical research or treatises which inform the opinion. Finally, the examiner should provide a statement of the medical reasoning or rationale for the opinions offered. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Handy, Cheryl E. 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.