Citation Nr: 18160691
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-02 508
DATE:	December 27, 2018
ORDER
Entitlement to an initial disability evaluation in excess of 10 percent for service-connected primary insomnia from July 1, 2013 to July 16, 2014, for a disability evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD), previously rated as primary insomnia, from July 16, 2014 to April 26, 2016, and in excess of 70 percent from April 26, 2016, is denied.
REMANDED
Entitlement to service connection for bilateral pes planus is remanded.
Entitlement to service connection for bilateral plantar fasciitis is remanded.
Entitlement to an initial disability evaluation in excess of 10 percent for service-connected right knee patellar tendonitis is remanded.
Entitlement to an initial disability evaluation in excess of 10 percent for service-connected left knee patellar tendonitis is remanded.
Entitlement to an initial compensable disability evaluation for service-connected temporomandibular joint disorder (TMJ) is remanded.
FINDINGS OF FACT
1. From July 1, 2013 to July 16, 2014, the Veteran’s primary insomnia more closely approximates occupational and social impairment due to mild or transient symptoms, but not impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 
2. From July 16, 2014 to April 26, 2016, the Veteran’s PTSD (previously rated as primary insomnia) more closely approximates occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas.
3. From April 26, 2016, the Veteran’s PTSD (previously rated as primary insomnia) more closely approximates occupational and social impairment with deficiencies in most areas, but not total impairment.
CONCLUSION OF LAW
1. Prior to July 16, 2014, the criteria for a disability rating in excess of 10 percent for service-connected primary insomnia are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9410 (2018).
2. From July 16, 2014, to April 26, 2016, the criteria for a disability rating in excess of 50 percent for service-connected PTSD (previously rated as primary insomnia) are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2018).
3. On and after April 26, 2016, the criteria for a disability rating in excess of 70 percent for service-connected PTSD (previously rated as primary insomnia) are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran served on active duty in the U.S. Army from April 1993 to August 1993, and from October 1993 to July 2013.  The Board notes that the issue of a total disability rating due to individual unemployability was granted effective January 12, 2017.  As such, this issue is not before the Board.
The Veteran contends that the currently assigned disability ratings for his service-connected PTSD do not accurately reflect the level of disability manifested during the period on appeal.
Applicable Law and Regulations 
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.
In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).
Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 
The Veteran was service-connected for primary insomnia in an August 2013 rating decision, and granted a 10 percent evaluation effective July 1, 2013.  In December 2013, the Veteran filed a notice of disagreement (NOD) as to the evaluation assigned to his service-connected primary insomnia.  In March 2014, the Veteran filed a new claim for service connection for an adjustment disorder with anxiety and depression.  In March 2015, the Veteran filed a claim for entitlement to service connection for PTSD.  In July 2015, the RO granted service-connection for PTSD (previously rated as primary insomnia), and assigned a 50 percent evaluation effective March 25, 2015.  In a January 2016 rating decision, the RO granted a 50 percent evaluation for service-connected PTSD (previously rated as primary insomnia) from July 16, 2014, the date a VA examiner diagnosed the Veteran with major depressive disorder.  In a July 2016 rating decision, the RO granted a 70 percent evaluation for service-connected PTSD (previously rated as primary insomnia) from April 26, 2016. 
The Board notes that the rating criteria for both primary insomnia (DC 9410) and PTSD (DC 9411) are the same under 38 C.F.R. § 4.130:
A 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.
A 30 percent rating is warranted when there is 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 warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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); and the inability to establish and maintain effective relationships. 
A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  The symptoms shall have caused occupational and social impairment in most of the referenced areas.  Vazquez-Claudio, 713 F.3d 112.  When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126.  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the examination.  38 C.F.R. § 4.126.

The Veteran seeks an initial evaluation in excess of 10 percent prior to July 16, 2014 for service-connected primary insomnia, an evaluation in excess of 50 percent for service-connected PTSD (previously rated as primary insomnia) from July 16, 2014 to April 26, 2016, and an evaluation in excess of 70 percent for PTSD (previously rated as primary insomnia) from April 26, 2016.
Evaluation in excess of 10 percent prior to July 2014
The Board finds that prior to July 16, 2014, an evaluation in excess of 10 percent is not warranted.
During a March 2013 VA examination, the Veteran was diagnosed with primary insomnia.  His occupational and social impairment was described as being due to mild or transient symptoms with decreased work efficiency and inability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  During the examination, the Veteran reported that he was married and had a normal relationship with his wife and two children.  He also reported having a good relationship with his father.  The Veteran stated that he enjoyed listening to music and watching television, but that he had no significant social activities or leadership positions outside of his work.  The Veteran reported that he was prescribed medication for sleep problems, and that he experienced significant trouble sleeping if he did not use the medication.  The examination report noted only chronic sleep impairment as a symptom of the Veteran’s diagnosis.  He was determined not to be a threat of danger or injury to himself or others. 
In a July 2013 VA treatment note, the Veteran denied financial and housing concerns.  He also denied anxiety and depression, and had no prior history of suicidal thoughts or attempts.  At the time, the Veteran was employed full time.
In an August 2013 VA treatment note, the Veteran was diagnosed with an adjustment disorder/insomnia.  No suicidal or homicidal ideations were noted.  In a subsequent August 2013 VA treatment note, the Veteran was noted to have a continued stable status, with no mental health or social concerns reported by the Veteran.
In November and December 2013 VA treatment notes, the Veteran reported stress, anxiety, and worry concerning a legal crisis with his son.  He stated that he felt ashamed and embarrassed, and was withdrawing more from people.  He reported he could not sleep well because of the stress and worry, and that it had started to affect his work.  Mental status examinations show that he was well-groomed, with logical, coherent, fluent, and well-organized speech.  The Veteran reported some decreased short-term memory and concentration, but recent and remote memory testing showed they appeared grossly intact.  The Veteran was alert and oriented to three spheres, with organized thought processes, no loose associations, or flight of ideas.  He did not exhibit any evidence of hallucinations, delusions, or distorted ideations, and he denied suicidal and homicidal ideation.  The Veteran exhibited adequate impulse control and was a low risk for self-harm and harm to others.  The Veteran’s judgment and insight were appropriate, with no evidence of dissociation.  He was determined to be capable of understanding, offering and withholding information, and was fully capable of making his own medical decisions. 
In the July 2014 VA examination, the Veteran was diagnosed with major depressive disorder, considered moderate.  His occupational and social impairment was described as 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.  The Veteran reported that he lost his job in March 2014 when his contract expired; he noted that in the prior year, he started having problems with productivity at work, mainly forgetting to attend to various details.  He also reported that he was still married to his wife of over 25 years and had two grown sons.  The Veteran exhibited symptoms of depressed mood, anxiety, chronic sleep impairment, impairment of short- and long-term memory, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work and a worklike setting.  The Veteran was determined capable of managing his own financial affairs.
There is no evidence that the Veteran exhibited a depressed mood, anxiety, or suspiciousness.  The Veteran specifically denied these symptoms in July and August 2013.  The Veteran did not report or describe panic attacks.  While the Veteran did report some decreased short-term memory and concentration in December 2013, the mental status examination result showed that the Veteran’s recent and remote memory appeared grossly intact.  There is no other evidence of record to support a finding that the Veteran’s disability rating should be increased for this period.
In short, the Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination prior to July 16, 2014. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence does not support the award of a higher evaluation for the Veteran’s service-connected primary insomnia.
Evaluation in excess of 50 percent from July 2014 through April 2016
The Board finds that from July 16, 2014 to April 26, 2016, an evaluation in excess of 50 percent is not warranted. 
In an October 2014 VA psychology note, the Veteran reported that he felt stressed and overwhelmed, and was not sleeping well.  Upon examination, his appearance was determined to be neat and well-groomed.  His mood was anxious/down, and his affect was appropriate and congruent with mood.  His speech was logical, coherent, fluent, and well-organized.  His recent and remote memory appeared grossly intact, and he was alert and oriented to three spheres.  The Veteran’s thought processes were organized with no loose associations or flight of ideas.  His thought content was void of hallucinations, delusions, and distorted ideations.  He denied current and past suicidal and homicidal ideation and had adequate impulse control and was determined to be a low risk.  His judgment and insight were appropriate and did not evidence dissociation.  The Veteran was cognitively able to understand, offer, and withhold information, and was fully cognitively capable of making his own medical decisions. 
During his May 2015 VA examination. the Veteran was diagnosed with PTSD, with associated depression.  His occupational and social impairment was described as occasionally decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The Veteran reported being married for 25 years and living with his wife.  He talked to his father approximately once per month, but had no contact with his siblings, and had no friends at the time.  The Veteran stated that he went to church weekly, but that he did not feel close to people and was emotionally distant.  He preferred to be alone.  The Veteran also reported nightmares three to four times per week, daily intrusive thoughts about Afghanistan, and experienced crying spells with the intrusive thoughts.  He also described loss of sexual desire, high anxiousness, panic attacks, irritability, and avoidance of war movies.  He exhibited symptoms of depressed mood, anxiety, suspiciousness, panic attacks which occurred weekly or less often, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation.  He presented at the examination properly groomed and highly anxious.  He reported hypervigilance and increased startle.  The Veteran experienced passive thoughts about death, but denied active suicidal plan or intent, with an ability to control his impulses without active suicidal or homicidal ideation, intent or plan.  His speech was of normal rate and tone with no agitation, his thought process was organized and goal-directed, he demonstrated no auditory or visual hallucinations or delusions.  He was alert and oriented times four with no cognitive or memory impairments.  The Veteran’s insight was fair and his judgment was deemed not to be impaired.  He was determined to be capable of managing his own financial affairs. 
In an October 2015 VA psychologist note, the Veteran reported he was doing better overall; he reported doing some photography and going to bookstores with his wife.  Upon examination, the Veteran’s appearance was determined to be neat and well-groomed.  The Veteran’s mood was anxious/down, and his affect was appropriate and congruent with mood.  The Veteran’s speech was logical, coherent, fluent, and well-organized.  His recent and remote memory appeared grossly intact, and he was alert and oriented to three spheres.  The Veteran’s thought processes were organized with no loose associations or flight of ideas.  His thought content was void of hallucinations, delusions, and distorted ideations.  He denied current and past suicidal and homicidal ideations and had adequate impulse control.  His judgment and insight were appropriate and did not evidence dissociation.  The Veteran was cognitively able to understand, offer, and withhold information, and was fully cognitively capable of making his own medical decisions.
A January 2016 VA examination addendum opinion noted that based on the evidence of record, the Veteran’s diagnoses of PTSD, major depressive disorder, and insomnia were all separate diagnoses, but were all inter-related and overlapped.  The examiner determined that all diagnoses were currently present.
In a January 2016 VA psychology note, the Veteran reported feeling more depression, anhedonia, and low energy since his return from Puerto Rico.  He reported not wanting to do much, watching a lot of television, and finding it hard to get motivated.  The Veteran also reported having thoughts of being better off if he were not around, but denied suicidal and homicidal ideations.  Upon examination, the Veteran’s appearance was determined to be neat and well-groomed.  The Veteran’s mood was anxious/down, and his affect was appropriate and congruent with mood.  The Veteran’s speech was logical, coherent, fluent, and well-organized.  His recent and remote memory appeared grossly intact, and he was alert and oriented to three spheres.  The Veteran’s thought processes were organized with no loose associations or flight of ideas.  His thought content was void of hallucinations, delusions, and distorted ideations.  He denied current and past suicidal and homicidal ideations and had adequate impulse control.  His judgment and insight were appropriate and did not evidence dissociation.  The Veteran was cognitively able to understand, offer, and withhold information, and was fully cognitively capable of making his own medical decisions.
In a March 2016 VA mental health intake note, the Veteran reported no desire to do anything and poor sleep.  He stated that his appetite was fair, but that his ability to focus was limited and his memory was poor.  He stated that he was not truly happy, and that he did not feel like he had a purpose in life.  He reported no auditory or visual hallucinations.  The Veteran was noted to be alert and oriented to all spheres, was cooperative and claim, with good grooming and hygiene.  While he appeared to be guarded, the tone of his speech was audible and appropriate, with his thought process linear and goal-oriented.  His thought content was relevant and informative with no perceptual disturbances noted.  His judgment and insight were noted to be intact. 
Given the evidence of record, the Board finds that the Veteran’s service-connected PTSD (previously rated as primary insomnia) has been appropriately rated as 50 percent disabling from July 16, 2014 to April 26, 2016.  In short, the Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination from July 16, 2014 to April 26, 2016. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The evidence does not support the award of a higher evaluation for the Veteran’s service-connected PTSD (previously rated as primary insomnia).
Evaluation in excess of 70 percent from April 26, 2016
The Board finds that a rating in excess of 70 percent from April 26, 2016 is not warranted. 
In an April 2016 VA psychology note, the Veteran was alert and oriented as to all spheres, with an anxious mood.  He was cooperative, and his speech was appropriate in tone and volume.  His thought process was linear, with thought content being relevant and informative.  No perceptual disturbances were observed or reported, and his judgment and insight were noted to be intact.  In a different April 2016 VA psychology note, the Veteran presented as alert and oriented as to three spheres, but reported amotivation, no desire to do anything, and impoverished sleep.  He stated that his appetite was fair, but that his focus and concentration were limited, recent and remote memories being poor, no goals or aspirations, depression, anhedonia, unwarranted hostile, angry outburst to his wife, and poor impulse control.  He denied suicidal and homicidal ideation, and auditory and visual hallucinations. 
A May 2016 VA examination was conducted.  The Veteran had diagnoses of chronic PTSD, with associated symptoms of depression, anxiety, sleep deficits/deficiencies.  The Veteran’s occupational and social impairment was described as deficient in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The Veteran reported that he had been married for over 27 years.  The Veteran stated that he had insomnia, anxiety, and depression all the time.  The Veteran reported that he continued to have symptoms of PTSD, such as hypervigilance, hyper-startle responses, numbing of feelings, irritability, and loss of temper.  The Veteran’s then-current symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships.  Upon examination, the Veteran was dressed and groomed appropriately, but was extremely anxious/tense.  The Veteran was alert and oriented properly in all spheres, able to express thoughts adequately, with no thought disorders, delusions, or hallucinations noted or reported.  The Veteran denied suicidal and homicidal ideations and plans, had mild difficulty with delay recall tasks, with judgment intact and insight adequate.  The Veteran was determined to be capable of managing his own financial affairs.  The examiner concluded that the Veteran’s PTSD symptoms had increased in severity, as evidenced by losing his job as a contractor, encountering serious family problems, and requiring a change in medication in an effort to improve functioning and PTSD symptoms. 
In a June 2016 VA mental health medication management note, the Veteran was noted to have symptoms of insomnia, nightmares, anxiety, intrusive thoughts, easy irritability, dysthymia, and apprehensiveness.
A November 2016 independent medical opinion was obtained.  The examiner determined that the Veteran’s service-connected disability affected his ability to secure and maintain substantially gainful employment due to his sleep problems, resulting energy and concentration problems, irritability, interpersonal difficulties, hypervigilance, hyperarousal, flashbacks, and intrusive thoughts.  
In an April 2017 VA psychology note, the Veteran reported that he was doing better and that he did not have angry outbursts.  He noted that his appetite has increased and that he is sleeping better.  He noted that his mood was also better.  He reported no crying spells or auditory or visual hallucinations.  The Veteran was observed to be alert and oriented to all spheres, with his grooming and hygiene noted to be good.  He was cooperative, and his speech was appropriate in tone and volume.  His thought process was linear and thought content was relevant and informative.  There were no perceptual disturbances observed or reported, no suicidal or homicidal ideations reported, and judgment and insight were determined to be intact. 
In a June 2017 VA psychology note, the Veteran reported having increased anxiety, felt like fleeing when in public, and felt impending doom.  He noted poor concentration and energy, and had limited memory.  The Veteran also reported nightmares, but denied crying spells and auditory and visual hallucinations.  Upon examination, the Veteran was alert and oriented as to all spheres.  His grooming and hygiene were noted to be good.  His speech was appropriate, thought process was linear and thought content was relevant and informative.  There were no perceptual disturbances noted and no suicidal or homicidal ideations reported.  The Veteran’s judgment and insight were noted to be intact. 
An August 2017 VA examination was conducted.  The Veteran was diagnosed with PTSD, chronic, with associated anxiety, depression, and insomnia.  The Veteran’s occupational and social impairment was described as deficient in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The Veteran reported still being married and has been so for over 30 years.  The Veteran reported continued chronic anxiety, depressive episodes, and problems sleeping.  He also stated that he frequently gets nervous, agitated, and angry.  The Veteran stated that he only leaves the house about twice a week – to go to the grocery store and to church.  The Veteran stated that he feels his PTSD symptoms have gotten worse since last year and that his medications have changed.  The Veteran reported having difficulty with concentration and memory.  The Veteran’s then-current symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic or depression affecting ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, intermittent in ability to perform activities of daily living including maintenance of minimal personal hygiene.  Upon examination, the Veteran was dressed appropriately, was cooperative, mentally alert to all spheres.  He was able to express thoughts adequately but had difficulty recalling specific dates and information.  His thought process was slow, but thoughts were coherent and logical, with no delusions or hallucinations.  The Veteran denied suicidal and homicidal intent and plans.  His mood was anxious, depressed, and agitated, with a flat affect.  His judgment and insight were both fair.  The Veteran was determined capable of managing his own financial affairs, but was extremely limited in his ability to perform activities on a sustained basis or in a stressful situation, ability to interact properly on a daily and regular basis with coworkers, supervisors, and the public, and ability to engage in normal conversation, given.  The examiner noted that the Veteran was suspicious of motives, had difficulty trusting others, avoided people, unable to cope with job pressures, stress, deadlines, changes in schedule, and ambiguity.  The Veteran was also determined to be extremely limited in his ability to accept and receive criticism, to perform daily grooming/hygiene at times, to concentrate and difficulty due to limited flexibility, and to begin, persist, and complete tasks timely due to limited energy, motivation, and fatigue. 
A September 2017 VA addendum opinion was obtained.  The examiner reiterated that the Veteran had only one disability, but that symptoms directly associated with the diagnosis were anxiety, depression, and insomnia. 

At no point during the period on and after April 26, 2016 does the Veteran exhibit symptoms of gross impairment in thought process or communication.  There is also no evidence of persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others.  All VA examinations and VA psychology treatment notes indicate that the Veteran does not have delusions, auditory or visual hallucinations, or perceptual disturbances.  The Veteran has also denied these symptoms.  Similarly, the Veteran has consistently denied suicidal and homicidal ideations and plans.  There is also no evidence of record to indicate that the Veteran has displayed grossly inappropriate behavior.  The record also does not contain evidence of the Veteran exhibiting disorientation to time or place, memory loss of names of close relatives, own occupation or own name.  It was noted in an August 2017 VA examination that the Veteran had an intermittent inability to perform activities of daily living including maintenance of minimum hygiene.  However, aside from this one notation, the Veteran always presented as well-groomed, with grooming and hygiene noted to be good. 
Given the evidence of record, the Board finds that the Veteran’s service-connected PTSD (previously rated as primary insomnia) from April 26, 2016 was appropriately rated as 70 percent disabling.  In short, the Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination from April 26, 2016.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The evidence does not support the award in excess of 70 percent for the Veteran’s service-connected PTSD (previously rated as primary insomnia).
REASONS FOR REMAND
First, remand is required to obtain adequate VA examinations that address all theories of recovery.  Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Additionally, a medical opinion should address the appropriate theories of entitlement and must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).
Second, when a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997).
Moreover, in increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.  
Finally, in increased evaluation claims, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2018).
Entitlement to service connection for bilateral pes planus and bilateral plantar fasciitis is remanded.
A November 2015 VA examination was conducted.  The Veteran was diagnosed with bilateral pes planus and plantar fasciitis.  At the examination, the Veteran reported that he began having foot pain between 2006 to 2007, and that he injured his left foot on a rock.  The Veteran further reported that the pain has continued since his retirement and described the pain as a sharp like stabbing pain on the inner part of the foot.  The examiner noted that the Veteran regularly used night splints as an assistive device for plantar fasciitis.  Diagnostic testing indicated bilateral degenerative or traumatic arthritis. 
The examiner opined that the Veteran’s bilateral pes planus and plantar fasciitis were less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner reasoned that there was no evidence documenting foot pain in service or any diagnosis of any foot abnormalities while in service. The examiner also stated that there was no current credible professional medical literature documenting a nexus between the occurrence of an acute unilateral ankle sprain and the development of pes planus and plantar fasciitis. 
However, the examiner did not take into consideration the Veteran’s lay statements regarding the onset of his symptoms during service, or provide a well-reasoned rationale as to why the Veteran’s current diagnoses of bilateral pes planus and plantar fasciitis are unrelated to active service.  The examination report also did not address the diagnosis of bilateral equinus in a July 2016 VA treatment note.  Thus, a new VA examination is warranted. 
Entitlement to an initial disability evaluation in excess of 10 percent for service-connected right knee patellar tendonitis and an initial disability evaluation in excess of 10 percent for service-connected left knee patellar tendonitis is remanded.
Pursuant to the holding in Snuffer, a new VA examination is warranted for service-connected right and left knee patellar tendonitis.  The most recent VA examination was conducted in November 2015.  In a January 2016 Statement in Support of Claim, the Veteran alleged that his physical problems were getting worse, and that simple household daily tasks such as mowing the lawn, washing car, walking, and grocery shopping have become a painful ordeal and have become very difficult.  See Snuffer, supra.
The Board also notes that the November 2015 VA examination report did not address the requirements of Sharp and Correia identified above; the new VA examination must do so.

Entitlement to an initial compensable disability evaluation for service-connected TMJ disorder is remanded.
Pursuant to Snuffer, a new VA examination is warranted for service-connected TMJ.  The most recent VA examination was conducted in December 2015.  In a January 2016 Statement in Support of Claim, the Veteran alleged that his physical problems were getting worse.  Because the Veteran has alleged an increase in severity for his service-connected TMJ since the last VA examination, a new VA examination is appropriate.  See Snuffer, supra.
These matters are REMANDED for the following action:
1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his representative.
2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.
3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assist in determining the nature and etiology of any bilateral foot disorder(s).  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  The examiner must elicit from and consider the Veteran’s lay statements regarding his active service. 
(a.) First, the examiner must determine each of the Veteran’s bilateral foot disorders, to include: 1) plantar fasciitis, 2) pes planus, and 3) equinus.  If any of these bilateral foot disorders are not noted, please address the prior diagnoses of record and explain why no such current diagnoses are warranted.
(b.) Second, the examiner must opine whether each diagnosed bilateral foot disorder at least as likely as not (50 percent or greater probability) had onset in, or is otherwise related to active service.
The examiner must address the following: 1) the Veteran’s lay statements regarding feet problems starting in 2006 after military field training exercises; 2) the Veteran’s STRs from October 2005 indicating ankle pain and ankle sprain deltoid ligament left; 3) a November 2014 correspondence with supporting articles on plantar fasciitis; and 4) the November 2015 VA examination report.
4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right and left knee patellar tendonitis.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.
(a.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination.  Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted.  If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups.  All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically.  Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information - i.e. frequency, duration, characteristics, severity, or functional loss -regarding his flares by alternative means.
(b.) The examiner must utilize the appropriate Disability Benefits Questionnaire.  The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain.  The examiner must test the range of motion and pain of each knee in active motion, passive motion, weight-bearing, and non-weight-bearing.  The examiner must also conduct the same testing on the opposite knee.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so.
5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of his service-connected TMJ disorder.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.
6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.
7. Ensure compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
8. After the development requested above has been completed to the extent possible, the AOJ should again review the record.  If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999)


Continued on Next Page
These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112 (2012).

 
K. A. KENNERLY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. Nguyen, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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