BVA9500092 DOCKET NO. 91-36 860 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased disability evaluation for an anxiety reaction with depressive features, currently evaluated as 50 percent disabling. 2. Entitlement to an increased disability evaluation for left thigh puncture wound scar residuals, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable disability evaluation for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel INTRODUCTION The veteran had active military service from February 1941 to January 1945. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a May 1990 rating decision of the New York, New York Regional Office (hereinafter "the RO") which denied, in part, increased disability evaluations for the veteran's service-connected anxiety reaction with depressive features, left thigh puncture wound scar residuals and bilateral pes planus and a total rating for compensation purposes based on individual unemployability. At the January 1991 hearing before a Department of Veterans Affairs (hereinafter "VA") hearing officer, the veteran expressly withdrew his claim for a total rating for compensation purposes based on individual unemployability. In February 1992, the Board remanded this appeal to the RO for further development of the record and formal adjudication of the veteran's claim of entitlement to service connection for hammer toes. In July 1993, the Board again remanded this appeal to the RO for formal adjudication of the veteran's claim of entitlement to service connection for hammer toes. In August 1993, the RO denied service connection for bilateral hammer toes. A timely notice of disagreement to the August 1993 rating decision was not subsequently received. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in denying increased disability evaluations for his service-connected psychiatric disorder, left thigh puncture wound residuals and bilateral pes planus as those disabilities have increased in severity. He contends that he experiences significant psychiatric and lower extremity impairment which has necessitated ongoing treatment. The Board's attention is directed to the provisions of 38 C.F.R. § 4.7 (1993). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that a preponderance of the evidence is adverse to his claim for increased disability evaluations for his psychiatric disorder, left thigh puncture wound residuals and bilateral pes planus. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's psychiatric disorder has been shown to be productive of no more than considerable industrial impairment. 3. The veteran's left thigh puncture wound residuals have been shown to be manifested by tender scars and no more than slight injury to Muscle Group XIII. 4. The veteran has been shown to suffer from no more than mild bilateral pes planus. CONCLUSIONS OF LAW 1. The schedular criteria for a disability evaluation in excess of 50 percent for an anxiety reaction with depressive features have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.3, 4.7 and Diagnostic Code 9400 (1993). 2. The schedular criteria for a disability evaluation in excess of 10 percent for left thigh puncture wound scar residuals have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.3, 4.7 and Diagnostic Codes 5313, 7804, 7805 (1993). 3. The schedular criteria for a compensable disability evaluation for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.3, 4.7 and Diagnostic Code 5276 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, an additional remand in order to allow for further development of the record is not necessary. I. Psychiatric Disorder A. Historical Review The veteran's service medical records indicate that he was hospitalized in November 1943 for mild neurocirculatory asthenia manifested by palpitations, nervousness, and vague aches and pains. The report of a November 1944 Army physical examination states that the veteran exhibited no psychiatric abnormalities. A December 1944 physical classification report notes that the veteran suffered from an anxiety state. In May 1945, the RO established service connection for an anxiety-type psychoneurosis evaluated as 10 percent disabling. The report of the September 1979 VA examination for compensation purposes conveys that the veteran was diagnosed as suffering from a severe anxiety reaction with depression manifested by marked anxiety, tension and an inability to function on "the outside." In December 1979, the RO recharacterized the veteran's service-connected psychiatric disorder as an anxiety reaction with depressive features evaluated as 50 percent disabling. B. Increased Disability Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). A 50 percent disability evaluation is warranted for an anxiety reaction where the veteran's ability to establish or maintain effective or favorable relationships with people is considerably impaired and when his reliability, flexibility, and efficiency levels are so reduced by reason of his psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation requires that the veteran's ability to establish and maintain effective or favorable relationships with people be severely impaired and that his psychoneurotic symptoms be of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 38 C.F.R. Part 4, Diagnostic Code 9400 (1993). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). At the March 1990 VA psychiatric examination for compensation purposes, the veteran complained of chronic nervousness; suspiciousness; nightmares in which people were chasing him; frequent screaming; and avoiding people. He reported that he had sustained a left thigh gunshot wound; was a retired mechanic; and had a few friends. On mental status examination, the veteran was observed to be oriented, anxious, and "quite" depressed; to speak cautiously and hesitantly; to cry and shake throughout a "good" part of the examination; and to exhibit apparent survivor's guilt. A diagnosis of post-traumatic stress disorder with depression and survivor's guilt was advanced. The examiner assigned a "60" to the veteran's symptomatology on the Global Assessment of Functioning Scale. VA treatment records dated between May and December 1990 show that the veteran received ongoing psychiatric treatment. A May 1990 treatment entry notes that the veteran complained of boredom, poor sleep and being "disgusted with things." He denied feeling depressed. He reported the recent deaths of his two dogs. VA psychiatric personnel observed that the veteran was despondent; became tearful when discussing his pets; and exhibited a constricted affect. A July 1990 treatment record states that the veteran was enjoying himself and functioning in his limited capacity. An impression of improving major depression was advanced. A September 1990 treatment record indicates that the veteran related that he often arose during the night due to nocturia; his sleep was impaired and his mood was "not so good." An October 1990 treatment record shows that the veteran's depression was found to be in remission. A December 1990 treatment entry notes that the veteran reported some intermittent dysthymic feelings. An impression of "depression in control" was advanced. At the January 1991 hearing on appeal, the veteran testified that his service-connected psychiatric disorder was manifested by impaired sleep. He stated that he was happily married and had a few friends who visited him. Although he indicated that he spent the days doing "nothing," the veteran acknowledged that he watched television and read the newspaper. VA treatment records dated on March 4, 1991 indicate that the veteran complained of depression; appeared sad, withdrawn and tearful; and exhibited a depressed affect. He reported constantly watching the television coverage of the Persian Gulf War. VA psychiatric personnel commented that the veteran's psychiatric disorder was possibly being exacerbated by the war. A VA treatment entry dated on March 18, 1991 states that the veteran reported having a good mood since the end of the Persian Gulf War. An October 1991 VA treatment entry states that the veteran complained of mild anhedonia and impaired sleep due to nocturia. The veteran was reported to be receiving treatment for depression and hypothyroidism. VA psychiatric personnel observed that he exhibited good eye contact; slightly dysphoric speech; and a mildly dysphoric affect with a dysphoric mood. An impression of "major depression versus an organic mood disorder secondary to reduced thyroid" was advanced. At the July 1992 VA examination for compensation purposes, the veteran presented "few subjective complaints." He was found to be oriented and to exhibit a mildly depressed mood and no evidence of a specific anxiety syndrome. The examiner diagnosed the veteran as suffering from chronic depression and assigned a "60" to the veteran's symptomatology on the Global Assessment of Functioning Scale. The Board has reviewed the probative evidence including the veteran's testimony and argument on appeal. The veteran's service-connected psychiatric disorder has been shown to be manifested by relatively mild chronic depression. The veteran's symptomatology is clearly productive of no more than considerable industrial impairment and is adequately reflected by the current 50 percent disability evaluation assigned under the provisions of 38 C.F.R. Part 4, Diagnostic Code 9400 (1993). Therefore, an increased disability evaluation is not warranted. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1993) has been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, the evidence does not suggest that the veteran's psychiatric disorder is productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standard and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). II. Left Thigh Puncture Wound Residuals A. Historical Review The veteran's service medical records convey that he sustained a moderately severe left thigh puncture wound in May 1943 when he slipped and struck his leg with his telephone pole "climbers" while crossing a stream. The veteran's wound was debrided and his left lower extremity was immobilized. He was returned to duty approximately nine days later. The report of the November 1944 Army physical examination states that the veteran drove a spike into his left thigh in May 1943; was subsequently hospitalized for two weeks; and experienced a "little trouble" in damp weather. On examination, the veteran exhibited a small scar on the medial aspect of the left thigh. A January 1945 Army treatment record notes that the veteran had a "gaft" wound on the inner aspect of the left thigh which was painful to palpation. In May 1945, the RO established service connection for moderately severe left thigh puncture wound scar residuals evaluated as noncompensable. The report of the June 1947 VA examination for compensation purposes relates that the veteran exhibited an asymptomatic, non-depressed and non-adherent laceration scar on the medial aspect of the lower one-third of the left thigh measuring approximately one inch in diameter and no evidence of associated muscle injury. The report of the September 1979 VA examination for compensation purposes states that the veteran was diagnosed as suffering from left thigh gunshot wound residuals with atrophy of the extensor group muscles. In December 1979, the RO recharacterized the veteran's left thigh puncture wound residuals as a left thigh scar with atrophy of the extensor muscle group evaluated as 10 percent disabling. B. Increased Disability Evaluation A 10 percent disability evaluation is warranted for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. Part 4, Diagnostic Code 7804 (1993). Scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R. Part 4, Diagnostic Code 7805 (1993). Limitation of extension of the thigh to 5 degrees warrants a 10 percent disability evaluation. 38 C.F.R. Part 4, Diagnostic Code 5251 (1993). Limitation of flexion of the thigh to 45 degrees warrants a 10 percent disability evaluation. A 20 percent disability evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. Part 4, Diagnostic Code 5252 (1993). A noncompensable evaluation is warranted for slight injury to Muscle Group XIII (posterior thigh group). A 10 percent evaluation requires moderate injury. A 30 percent evaluation requires moderately severe injury. 38 C.F.R. Part 4 Diagnostic Codes 5313 (1993). At the February 1990 VA examination for compensation purposes, the veteran reported that he sustained a left thigh "gunshot" wound. The examining physician reported a well-healed "shrapnel scar" on the inner aspect of the left thigh. At the January 1991 hearing on appeal, the veteran stated that he sustained a left thigh "shrapnel" wound. He testified that he experienced left thigh pain and an associated inability to "straighten up" after bending down. At the July 1992 VA examination for compensation purposes, the veteran reiterated that he had sustained a left thigh "shrapnel" injury and subsequently underwent "removal of shrapnel" at a field hospital. On examination, the veteran exhibited a normal gait; multiple tender and non-adherent circular scars on the medial side of the lower third of the left thigh measuring approximately one inch in diameter; good left thigh muscle strength; and no left thigh atrophy. The veteran was diagnosed as suffering from multiple tender left thigh scars. The Board has made a careful longitudinal review of the record. The veteran's left thigh puncture wound residuals have been shown to be manifested by multiple tender scars with slight, if any, injury to Muscle Group XIII and no associated limitation of motion of the thigh. In the absence of evidence of either significant injury to Muscle Group XIII or limitation of motion of the left thigh, a disability evaluation in excess of 10 percent is not warranted. 38 C.F.R. Part 4, Diagnostic Codes 5313, 7804, 7805 (1993). The potential application of various provisions of Title 38 of the Code of Federal Regulations (1993) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, the evidence does not suggest that the veteran's left thigh puncture wound residuals are productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standard and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). III. Pes Planus A. Historical Review The veteran's service medical records indicate that he was diagnosed with symptomatic second to third degree bilateral pes planus. In January 1945, the RO established service connection for symptomatic second degree bilateral pes planus evaluated as 10 percent disabling. The report of the June 1947 VA examination for compensation purposes notes that the veteran exhibited slightly symptomatic second degree bilateral pes planus. In August 1947, the RO reduced the disability evaluation for the veteran's bilateral pes planus from 10 percent to noncompensable. B. Increased Disability Evaluation A noncompensable disability evaluation is warranted for mild bilateral acquired pes planus with symptoms which are relieved by built-up shoes or arch supports. A 10 percent evaluation is warranted for moderate bilateral acquired pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo achillis and pain on manipulation and use of the feet. 38 C.F.R. Part 4, Diagnostic Code 5276 (1993). At the February 1990 VA examination for compensation purposes, the veteran complained of painful feet. The veteran was found to exhibit Grade I bilateral pes planus and bilateral hammer toes of the third, fourth and fifth toes. At the January 1991 hearing on appeal, the veteran testified that he experienced foot pain associated with walking and wore out his shoes rapidly. He denied having been prescribed special shoes. At the July 1992 VA examination for compensation purposes, the veteran complained of pain on the bottom of the feet, the heels and the metatarsal heads on walking and weight bearing. The VA examiner noted tenderness on the medial surface of the right foot, mild bilateral hammer toes and no callus under the metatarsal head. Contemporaneous X-ray studies of the feet revealed degenerative joint disease of the left first metatarsal-tarsal joint and the right side of the right foot. The veteran was diagnosed as suffering from mild Grade I bilateral pes planus, minimal bilateral hammer toes, a minimum right calcaneal spur and mild degenerative arthritis of the left first metatarsal-tarsal joint. The Board notes that the veteran has been found at the most recent examination to exhibit mild first degree bilateral pes planus and a number of nonservice-connected foot disorders. He has not been shown to manifest either weight-bearing lines over or medial to the great toes nor inward bowing of the tendo achillis. In the absence of such symptoms and given the minimal impairment associated with the veteran's bilateral pes planus, a compensable disability evaluation is not presently warranted. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1993) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, the evidence does not suggest that the veteran's pes planus is productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standard and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). ORDER An increased disability evaluation for an anxiety reaction with depressive features is denied. An increased disability evaluation for left thigh puncture wound scar residuals is denied. A compensable disability evaluation for bilateral pes planus is denied. JEFFREY J. MARTIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court within 120 days from the date of mailing of notice of the decision, provided that a notice of disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board.