MUSCULOSKELETAL

Summary

The veteran, who served in the U.S. Army from March 2006 to November 2008, appeals the denial of service connection for a left knee disability, diabetes mellitus, allergic rhinitis, plantar fasciitis, a right foot disability, and PTSD. The veteran also appeals the denial of a total disability rating based on individual unemployability (TDIU). The Board found that the claim for a left knee disability could not be reopened as no new and material evidence was submitted since the prior denial. Service connection for diabetes mellitus was denied as it did not manifest during service or within one year of separation, and no nexus to service was established. The Board denied an increased rating for allergic rhinitis, finding the evidence did not meet the criteria for a compensable rating prior to October 18, 2018, nor a rating higher than 10 percent thereafter, as polyps were not present. For plantar fasciitis, the Board found the evidence did not support a rating higher than 30 percent prior to June 6, 2017, and the 50 percent rating granted on that date was the maximum allowable. The right foot disability was also denied an increased rating beyond the 10 percent already assigned. For PTSD, the Board found the symptomatology did not warrant a rating higher than 30 percent, finding the private examiner's opinion inconsistent with VA examinations. However, the Board granted TDIU, finding that the veteran's combined service-connected disabilities, including plantar fasciitis (rated 50% from June 6, 2017), PTSD (rated 30%), and others, totaling 90%, prevented her from maintaining substantially gainful employment.

Rationale

Claim previously denied in September 2014.; No new and material evidence submitted since prior denial.; Submitted evidence does not raise reasonable possibility of substantiating claim.

Full Decision Text

Citation Nr: 20010221
Decision Date: 02/06/20	Archive Date: 02/06/20

DOCKET NO. 19-24 254
DATE: February 6, 2020

ORDER

The petition to reopen the previously denied claim for service connection for a left knee disability is denied.

Entitlement to service connection for diabetes mellitus is denied.

Entitlement to a compensable rating prior to October 18, 2018 and higher than 10 percent since for allergic rhinitis is denied.

Entitlement to a rating higher than 30 percent prior to June 6, 2017, and higher than 50 percent since for plantar fasciitis is denied.

Entitlement to a rating higher than 10 percent for a fracture of the right first metatarsal, status post right first MP joint bunionectomy (right foot disability) is denied.

Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD) is denied.

Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. In a September 2014 rating decision, the RO denied service connection for a left knee disability.

2. Evidence added to the record since September 2014 concerning a left knee disability does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.

3. Diabetes mellitus was not manifested during service or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease.

4. Prior to October 18, 2018, the Veteran’s allergic rhinitis has not been productive of greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side.

5. From October 18, 2018, the Veteran’s allergic rhinitis is manifested by greater than 50 percent obstruction on both sides with complete obstruction on one side; there is no evidence of nasal polyps.

6. Prior to June 6, 2017, the Veteran’s plantar fasciitis was not manifested by pronounced symptoms, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.

7. From June 6, 2017, the 50 percent rating for the Veteran’s plantar fasciitis is the highest rating allowable.

8. The Veteran’s right foot disability is not manifested by moderately severe symptoms.

9. The most probative evidence of record does not demonstrate that the Veteran’s PTSD is productive of functional impairment worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

10. Resolving all reasonable doubt in the favor of the Veteran, the Veteran’s service-connected disabilities preclude her from securing or following substantially gainful employment consistent with her education and industrial background.

CONCLUSIONS OF LAW

1. As new and material evidence has not been received since the September 2014 decision, the criteria for reopening the claim for service connection for a left knee disability are not met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. The criteria for entitlement to service connection for diabetes mellitus have not been met.  38 U.S.C. § 5107; 38 C.F. R. §§ 3.303, 3.307, 3.309.

3.  The criteria for compensable rating prior to October 18, 2018 and higher than 10 percent since for allergic rhinitis have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6522.

4. The criteria for a rating higher than 30 percent prior to June 6, 2017 and higher than 50 percent since for plantar fasciitis have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5276.  

5. The criteria for a rating higher than 10 percent for a right foot disability have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5280, 5284.  

6. The criteria for a rating higher than 30 percent for PTSD have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

7
 plantar fasciitis have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5276.  

5. The criteria for a rating higher than 10 percent for a right foot disability have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5280, 5284.  

6. The criteria for a rating higher than 30 percent for PTSD have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

7. The criteria for entitlement to a TDIU are met.  38 U.S.C. § 1155; 38 C.F.R. § 4.16.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service with the United States Army from March 2006 to November 2008.  These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2016 rating decision.

During the pendency of the appeal, a Decision Review Officer (DRO) decision in June 2019 granted the following: a 10 percent rating for allergic rhinitis, effective October 18, 2018; a 50 percent rating for plantar fasciitis, effective June 6, 2017; and a 10 percent rating for a right foot disability, effective January 26, 2014.  

In October 2019, the Veteran’s representative submitted additional evidence along with a waiver of initial RO consideration of the evidence.

In a September 2019 rating decision, the RO denied a claim for entitlement to a TDIU. To date, this denial has not been appealed, however, a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, a TDIU rating is part of the claim for a higher rating on appeal.

New and Material Evidence

The Veteran is seeking service connection for a left knee disability.  As will be discussed below, this claim was previously denied.  The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).

The Board must therefore proceed to analyze whether new and material evidence has been submitted since the prior final decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

1.  Left Knee Disability

The Veteran’s claim for service connection for a left knee disability was denied in a September 2014 RO decision.  The September 2014 denial noted that the evidence did not show any current left knee disability.  The Veteran did not appeal this decision or submit new and material evidence within one year of that decision, and it became final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b).

Since the September 2014 denial, the Veteran has not supplied any evidence relating a current left knee disability to service.  None of the evidence added to the record shows that the Veteran has a left knee disability related to service.

In sum, the evidence added to the record is either cumulative or redundant of the evidence previously of record, or it does not relate to an unestablished fact necessary to substantiate the claim and is not sufficient to raise a reasonable possibility of substantiating the claim.

Service Connection

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that
 of the evidence added to the record shows that the Veteran has a left knee disability related to service.

In sum, the evidence added to the record is either cumulative or redundant of the evidence previously of record, or it does not relate to an unestablished fact necessary to substantiate the claim and is not sufficient to raise a reasonable possibility of substantiating the claim.

Service Connection

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include diabetes mellitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).  Generally, the disease must have manifested to a degree of 10 percent or more within one year of service.  38 C.F.R. § 3.307(a)(3).

In this case, the Veteran’s service treatment records are missing.  In July 2011, VA issued a formal finding that these records are unavailable.  In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996).

2. Diabetes Mellitus

VA treatment records dated in 2016 show that the Veteran is diagnosed as having diabetes mellitus.

Upon review, the record does not contain any indication of a nexus between the Veteran’s diabetes mellitus and her active duty service. The Veteran was not diagnosed with diabetes mellitus until many years after her period of service.  Also, as there no evidence that diabetes mellitus was manifested to a compensable degree within one year of the Veteran’s separation from military service.  Aside from the Veteran’s own claim, there is no evidence suggesting a link between his current disability and his active duty service.  Service connection for diabetes mellitus is not warranted on a direct or presumptive basis and the claim is denied.

Increased Rating

Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

3. Entitlement to a compensable rating prior to October 18, 2018 and higher than 10 percent since for allergic rhinitis

The Veteran’s allergic rhinitis has been evaluated under Diagnostic Code 6522, which provides ratings for allergic or vasomotor rhinitis.  Allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, is rated as 10 percent disabling.  Allergic or vasomotor rhinitis with polyps is rated as 30 percent disabling.  38 C.F.R. § 4.97.  A 30 percent evaluation is the maximum rating assignable under this diagnostic code.

When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

On VA sinusitis/rhinitis examination in November 2015, the examiner noted that there was no evidence of 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. The examiner also noted no evidence of permanent hypertrophy of the nasal turbinates, nasal polyps or granulomatous condition.

A March 2016 sinusitis/rhinit
.F.R. § 4.97.  A 30 percent evaluation is the maximum rating assignable under this diagnostic code.

When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

On VA sinusitis/rhinitis examination in November 2015, the examiner noted that there was no evidence of 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. The examiner also noted no evidence of permanent hypertrophy of the nasal turbinates, nasal polyps or granulomatous condition.

A March 2016 sinusitis/rhinitis examination report was incomplete and not sufficient for rating purposes.

On VA sinusitis/rhinitis examination conducted on October 18, 2018, the examiner found greater than 50 percent obstruction of the nasal passage on both sides and complete obstruction on both sides due to rhinitis, along with permanent hypertrophy of the nasal turbinates. There were no nasal polyps or granulomatous condition. 

Prior to October 18, 2018, there is no evidence of record showing the presence of polyps or the degree of nasal obstruction which is required for an increased rating for the Veteran’s service-connected allergic rhinitis.  Therefore, the criteria for an initial compensable evaluation for allergic rhinitis prior to October 18, 2018, are not met. 

Also, the evidence of record from October 18, 2018, fails to show the presence of polyps which is required for an increased rating for the allergic rhinitis. Thus, the criteria for a rating higher than 10 percent after October 18, 2018, for the Veteran’s service-connected allergic rhinitis have also not been met. 

4. Entitlement to a rating higher than 30 percent prior to June 6, 2017 and higher than 50 percent since for plantar fasciitis

The Veteran’s bilateral plantar fasciitis is rated in accordance with the rating criteria for pes planus, given that a separate diagnostic code does not exist for plantar fasciitis specifically, and, that the two conditions have are sufficiently similar in scope and symptomatology.  See 38 C.F.R. § 4.20 (providing that unlisted conditions may be rated by analogy under a closely related disease or injury).

Under Diagnostic Code 5276, mild pes planus, with symptoms relieved by built-up shoe or arch support, will correspond to a noncompensable rating.  A 10 percent rating is assigned for moderate pes planus, with weight-bearing line over or medial to great toe.  A 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities.  A 50 percent evaluation is warranted for pronounced bilateral pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

The words “moderate,” “moderately severe,” and “severe” are not defined in Diagnostic Code 5276.  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.  

On VA foot conditions examination in October 2015, the Veteran was diagnosed as having bilateral plantar fasciitis.  She complained of constant pain the joints, heel and arches with flare-ups with weather changes.  There was no pain on manipulation of the feet.  There was no indication of swelling on use.  There were no characteristic calluses.  Extreme tenderness of the plantar surfaces on one or both feet was not demonstrated.  Decreased longitudinal arch height of one or both feet on weight-bearing was not demonstrated.  There was no objective evidence of marked deformity of one or both feet.  There was no marked pronation, weight-bearing line out of place, inward bowing of the Achilles tendon. The Veteran used arch supports on both feet.  The examiner noted that the Veteran had a history of plantar fasciitis that was currently quiescent.

March 2016 foot and flatfoot conditions examination reports are incomplete and not sufficient for rating purposes.

On VA foot conditions examination in June 2017, the Veteran reported increased pain that was so bad that she could not walk except to use the bathroom.  There was
 or both feet was not demonstrated.  Decreased longitudinal arch height of one or both feet on weight-bearing was not demonstrated.  There was no objective evidence of marked deformity of one or both feet.  There was no marked pronation, weight-bearing line out of place, inward bowing of the Achilles tendon. The Veteran used arch supports on both feet.  The examiner noted that the Veteran had a history of plantar fasciitis that was currently quiescent.

March 2016 foot and flatfoot conditions examination reports are incomplete and not sufficient for rating purposes.

On VA foot conditions examination in June 2017, the Veteran reported increased pain that was so bad that she could not walk except to use the bathroom.  There was pain in both feet, with and without manipulation, which was accentuated on use.  There was no swelling with no characteristic callouses.  She used orthotics on both feet.  There was extreme tenderness of the plantar surfaces of both feet.  Decreased longitudinal arch height of one or both feet on weight-bearing was not demonstrated.  There was no objective evidence of marked deformity of one or both feet.  There was no marked pronation, weight-bearing line out of place, inward bowing of the Achilles tendon.  

Prior to June 6, 2017, the criteria for a rating higher than 30 percent would necessitate pronounced symptoms of the condition, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo achillis, not improved by orthotics. However, as demonstrated on the October 2015 VA examination report, none of the prerequisite symptoms were demonstrated. The increase to 50 percent by objective evidentiary requirements prior to June 6, 2017, is not warranted.

From June 6, 2017, the Veteran’s disability rating was increased to 50 percent.  This is the highest rating allowable under this or any other potentially relevant diagnostic code on a schedular basis. Therefore, a rating in excess of 50 percent since June 6, 2017, for the Veteran’s service-connected plantar fasciitis is not for application.

5. Entitlement to a rating higher than 10 percent for a right foot disability

The Veteran’s right foot disability is assigned a 10 percent rating under Diagnostic Codes 5280-5284.

Pursuant to Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus, operated with resection of the metatarsal head, or where the metatarsal head has not been resected, if the condition is severe, such that it is equivalent to amputation of the great toe.  38 C.F.R. § 4.71a.

Diagnostic Code 5284 provides a 20 percent evaluation for symptoms that are moderately severe.  A 30 percent evaluation is provided for symptoms that are severe.  A 40 percent evaluation is warranted for actual loss or loss of use of the foot.  Id.

On VA foot conditions examination in October 2015, it was noted that the Veteran reported right foot pain that began during active duty service and that the Veteran eventually underwent right foot surgery in 2012 in an attempt to alleviate some foot pain, but it was not successful.  The examiner described the severity of the right foot disability as mild.  The foot condition did not chronically compromise weight bearing.  It did require memory foam shoes which were comfortable.  There were no residual signs or symptoms due to the foot surgery.  

A March 2016 foot conditions examination report is incomplete and not sufficient for rating purposes.

On VA foot conditions examination in June 2017, the examiner described the severity of the right foot disability as moderate.  The foot condition did not chronically compromise weight bearing.  Orthotics were not required for the right foot disability.    

As noted above, a 10 percent rating is the maximum rating under Diagnostic Code 5280.  Moreover, in view of the findings on the VA examinations of record, the Veteran’s symptoms, including pain and the degree of functional impairment associated with the right foot disability, are consistent with moderate bilateral foot injuries.  As such, the criteria for a disability rating higher than 10 percent for the Veteran’s residuals of a right foot injury also are not met under Diagnostic Code 5284.   

6. Entitlement to a rating higher than 30 percent for PTSD

The Veteran’s service-connected PTSD is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411.

Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for 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
 the right foot disability, are consistent with moderate bilateral foot injuries.  As such, the criteria for a disability rating higher than 10 percent for the Veteran’s residuals of a right foot injury also are not met under Diagnostic Code 5284.   

6. Entitlement to a rating higher than 30 percent for PTSD

The Veteran’s service-connected PTSD is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411.

Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for 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).

A 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships.

A maximum 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.

The VA General Rating Formula for Mental Disorders is meant to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  Symptomatology should be the fact finder’s primary focus when deciding entitlement to a given disability rating, and a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Id.  The psychiatric symptoms listed in the above rating criteria are not exhaustive.  Rather, they are examples of typical symptoms for the listed percentage ratings.   Accordingly, consideration will be given to all symptoms of the Veteran’s service-connected psychiatric disabilities that affect his level of occupational and social impairment.

On VA PTSD examination in November 2015, the examiner noted that the Veteran lived with her spouse, two children and mother.  She had a housekeeping company but stated that she was advised to stop working by her doctor due to severe back problems.  She was not currently working.  She endorsed the following symptoms:  depressed mood, anxiety, panic attacks that occurred weekly or less often, and chronic sleep impairment.  The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  

On VA PTSD examination in May 2016, the Veteran reported a positive home environment.  Her hobbies and interests included crafting, reading, hiking, and attending her children’s extracurricular activities.  No significant life events had occurred since her last examination.  She reported that she has not worked since her last examination.  Her most recent employment was in February 2015 as a maintenance supervisor for an apartment complex.  She continued to experience difficulties in crowds that included anxiety.   She reported irritability all the time but denied physical or verbal outburst.  She had difficulty falling and staying asleep.  She endorsed the following symptoms:  depressed mood, anxiety and chronic sleep impairment.  Grooming and hygiene were good, and her dress was casual and appropriate.  Content of speech as appropriate.  Thought process was logical and goal-directed.
 included crafting, reading, hiking, and attending her children’s extracurricular activities.  No significant life events had occurred since her last examination.  She reported that she has not worked since her last examination.  Her most recent employment was in February 2015 as a maintenance supervisor for an apartment complex.  She continued to experience difficulties in crowds that included anxiety.   She reported irritability all the time but denied physical or verbal outburst.  She had difficulty falling and staying asleep.  She endorsed the following symptoms:  depressed mood, anxiety and chronic sleep impairment.  Grooming and hygiene were good, and her dress was casual and appropriate.  Content of speech as appropriate.  Thought process was logical and goal-directed.  She denied any active suicidal/homicidal ideation, intent or planning.  The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  

On VA PTSD examination in October 2018, the Veteran endorsed the following symptoms:  depressed mood, anxiety and chronic sleep impairment.  The examiner determined that a mental condition has been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. 

In a PTSD Disability Benefit Questionnaire (DBQ), dated in September 2019, Dr. H.H-G. found that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work. School, family relations, judgment, thinking and/or mood.  She endorsed the following symptoms:  depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous pan or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful  circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships.  

In a separate psychological evaluation conduced in September 2019, Dr. H. H-G., stated that the veteran struggles with depressed mood, hypervigilance and disturbances of motivation and mood.  Dr. H. H-G. stated that these symptoms have been in existence since the Veteran returned from the military and have continued through the date of filing for benefits.  

Statements have been received from the Veteran’s husband and daughter in October 2019 attesting to the Veteran’s symptoms relating to her PTSD, such as panic attacks, paranoia, difficulty with memory and difficulty maintaining friendships.  

After considering the evidence of record under the laws and regulations set forth above, the Board finds that, throughout the relevant period on appeal, the Veteran’s PTSD manifestations were, at worst, no more severe than productive of functional impairment comparable to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and that the record does not show that it was factually ascertainable during that period that the Veteran’s PTSD was of a severity warranting a rating in excess of 30 percent.  For example, the record shows that, during the period on appeal, the Veteran demonstrated depressed mood, anxiety, and chronic sleep impairment.  She maintained relationships with her husband and children and reported having enjoyment with some hobbies.  She did not demonstrate flattened affect, circumstantial, circumlocutory, or stereotyped speech, or delusions or hallucinations, which would be indicative of symptomatology warranting a higher rating.  The Board concludes that the Veteran’s psychiatric symptomatology shown in the records most closely corresponds to the criteria for a 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411, or occupational and social impairment with occasional impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

In reaching its conclusion, the Board has considered the September 2019 private examiner’s opinions and evaluations.  The private examiner reported that the Veteran demonstrates significant deficiencies in the areas of work, family relations and relationships, thinking and mood, and that the severity of these symptoms were in existence since the Veteran returned from the military.  In contrast, the VA examination reports of record do not indicate such severity of symptoms.  Thus, the September 2019 private examiner’s assessment in inconsistent with the symptomatology reported during the VA examinations and is afforded little probative value in determining the occupational impairment caused by the Veteran’s PTSD.

With consideration of the above, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s PTSD.  

TDIU

In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and
 family relations and relationships, thinking and mood, and that the severity of these symptoms were in existence since the Veteran returned from the military.  In contrast, the VA examination reports of record do not indicate such severity of symptoms.  Thus, the September 2019 private examiner’s assessment in inconsistent with the symptomatology reported during the VA examinations and is afforded little probative value in determining the occupational impairment caused by the Veteran’s PTSD.

With consideration of the above, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s PTSD.  

TDIU

In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  VA defined substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.”  In reaching such a determination, 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).  Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered.  38 C.F.R. §§ 3.341, 4.16, 4.19.

7. Entitlement to a TDIU

The Veteran seeks entitlement to a TDIU contending that her service-connected disabilities prevent her from obtaining or maintaining substantial gainful employment.

TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability should be rated at 60 percent or more, but if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

The Veteran is currently in receipt of service connection for plantar fasciitis (rated as 30 percent prior to June 6, 2017 and as 50 percent thereafter); migraine and tension headaches (rated as 30 percent disabling from January 26, 2014); PTSD (rated as 30 percent disabling from January 26, 2014); lumbosacral strain with myofascial pain (rated as 20 percent disabling from August 16, 2015), fracture of the right first metatarsal, status post right first MP joint bunionectomy (right foot disability) (rated as 10 percent disabling from January 26, 2014), and allergic rhinitis (rated as noncompensable prior to October 18, 2018 and 10 percent thereafter).  Her combined rating for these disabilities is 90 percent from June 6, 2017.  As the Veteran has at least one disability rated as 40 percent disabling, and, a combined rating of 90 percent, she meets the threshold percentage requirements for consideration of a TDIU as of June 6, 2017.  

The Veteran employment history involved housekeeping and cleaning and maintenance.  She last worked in February 2015.  She indicated attending four years of college but did not complete a degree in psychology in crisis intervention.  

On VA PTSD examination in November 2015, the Veteran reported that she had her own housekeeping company but was advised by her doctor to stop working due to severe back problems.  

On VA PTSD examination in October 2018, the Veteran reported that she had been unemployed since 2015.  She last worked as a maintenance supervisor for an apartment complex.  She stated that should not “handle the workload – completely ripping out sheet rock, ripping out carpeting- by myself...in these units.” 

In a September 2019 medical opinion, Dr. H.S. relates reviewing the Veteran’s entire VA claims file and interviewing the Veteran.  The opinion identifies the Veteran’s service-connected disabilities and addresses their effects on her employability.  Dr. H. S. noted that the Veteran tried to work in maintenance from 2014-2015 but was unable to keep up with physically demanding nature of the job due to her physical limitations.  Additionally, due to her headaches, she had to miss a lot of work or leave
  She last worked as a maintenance supervisor for an apartment complex.  She stated that should not “handle the workload – completely ripping out sheet rock, ripping out carpeting- by myself...in these units.” 

In a September 2019 medical opinion, Dr. H.S. relates reviewing the Veteran’s entire VA claims file and interviewing the Veteran.  The opinion identifies the Veteran’s service-connected disabilities and addresses their effects on her employability.  Dr. H. S. noted that the Veteran tried to work in maintenance from 2014-2015 but was unable to keep up with physically demanding nature of the job due to her physical limitations.  Additionally, due to her headaches, she had to miss a lot of work or leave early.  Dr. H. S. opined that that the Veteran’s service-connected impairments more likely than not prevent her from maintaining substantially gainful employment.  Dr. H.S. stated that the Veteran has been unemployable due to her plantar fasciitis, migraine and tension headaches, PTSD, lumbosacral strain with myofascial pain, and fracture of the right metatarsal status post right first metatarsal-phalangeal joint bunionectomy.

The Board finds that the foregoing evidence supports the award of a TDIU from June 6, 2017. Considering the Veteran’s education, job history, and the severity of her service-connected disabilities, entitlement to TDIU is granted.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Henriquez, 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.