Citation Nr: 0004533 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 97-30 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a depressive disorder. 2. Entitlement to an evaluation in excess of 10 percent for residuals of bilateral bunionectomy with post-surgical changes, on appeal from the initial grant of service connection. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from February 1994 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied service connection for a nervous disorder and granted service connection at a 10 percent evaluation for bilateral bunionectomies. FINDINGS OF FACT 1. The veteran's depressive disorder pre-existed service and did not undergo an increase in severity in service. 2. Residuals of a bilateral foot bunionectomy with post surgical changes is currently manifested by recurrent hallux valgus deformity of the left foot, a lack of active extension of the tip of the right great toe, and soft tissue swelling of the right foot, without any other functional limitation or atrophy. CONCLUSIONS OF LAW 1. A pre-existing depressive disorder was not aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1101, 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.306, 4.1 (1999). 2. The criteria for an evaluation in excess of 10 percent for residuals of a bilateral foot bunionectomy with post surgical changes are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, 4.2, 4.7, Part 4, Diagnostic Code 5299-5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Analysis The veteran's entrance physical examination is negative as to a nervous or depressive disorder. Service medical records contain a December 1994 consultation request to a military podiatry clinic concerning symptoms of increased prominence over the first metacarpal phalangeal joint of both feet. Podiatry examination revealed symptomatic bunions, the left greater than the right, which required surgical correction. The assessment was bilateral hallux abducto valgus. In April 1995, the veteran was hospitalized with complaints of a painful bunion ongoing in her left foot for several years. Symptoms had progressively been getting worse, and now included aching and throbbing localized to the first metatarsal head. Podiatry musculoskeletal examination of the left foot was positive for increased supination of the foot with forefoot varus and metatarsus primus varus. There was positive hallux abductovalgus with a bunion at the first metatarsal head which was tender to palpation, but no joint crepitus in the first metatarsophalangeal joint. Operative procedures involved a closing wedge ostectomy at the base of the first metatarsal and an Akin bunionectomy at the first metatarsophalangeal joint of the left foot. Postoperatively, the veteran did well. An April 1996 pre-hospitalization work-up noted that the veteran was again scheduled for surgery on her left foot the following month. She had had her left bunion corrected in April 1995, which was successful. She did have a painful lump overlying the proximal first metatarsal, which was not attached to the metatarsal, the extensor tendon, or to the overlying skin. The palpation of the screw heads also caused pain. The May 1996 operative report indicated a nine month history of retained hardware in left foot, status post bunionectomy in 1995. Three months prior to operation, the veteran had noticed small, hard nodules in the region of the retained hardware which caused irritation, as well as an increased sensitivity to cold since the surgery. Two nodules were excised and two cortical screws discovered and extracted. The postoperative diagnoses were retained hardware and subcutaneous nodules, left foot. An August 1996 service podiatry examination noted that the left hallux was now straight and pain free. Examination of the right foot revealed an abducted hallux which was abutting the second toe. Also present was a marked bunion which was painful to palpation, but not on range of motion. The hallux was not trackbound. The plantar surface of the foot revealed a heavy hyperkeratosis plantar to the second metatarsal phalangeal joint. Following evaluation of x-ray studies, the examiner stated that the veteran's right foot would respond best to a closing wedge osteotomy of the first metatarsal with Akin bunionectomy and a sliding second metatarsal. Military records reveal that during July and August 1996 the veteran participated in a stress management education and training group seminar. Later in August 1996, she was hospitalized for five days for indications of suicidal ideation, reporting that she had had previous problems of suicidal ideation as a teenager four years previously. Currently, she had dysphoria precipitated by feelings of abandonment and loneliness because she had been unable to join her boyfriend in Puerto Rico. Past psychiatric history disclosed psychiatric treatment at the age of seventeen after being attacked, followed by weekly therapy for two months. She had also seen a military physician a few months before this hospitalization and had attended stress management class. In October 1995, she had seen a doctor at sick call and was put on antidepressants. Mental status examination revealed that she was well dressed, well groomed, and maintained good eye contact. Although she complained of feeling dysphoric, this was found to be incongruent with her affect, as she laughed and joked throughout the examination. She was well oriented to person, place, and time. Memory and concentration were good. She denied current suicidal or homicidal ideation and did not exhibit psychosis. It was noted that she had been admitted to a hospital ward for safety and for stabilization and for the purpose of working on her oppressive [sic] feelings, learning to deal better with her relationship and loneliness issues, and increasing her coping skill and sense of self control. She was restarted on Prozac and progressed well during the course of hospitalization. On discharge, her affect was bright, her mood was good, and her thoughts were organized without any evidence of suicidal ideation or psychosis. She demonstrated good eye contact and was optimistic about the future. The Axis I diagnosis was depressive disorder, not otherwise specified; the Axis II diagnosis was borderline personality disorder. Because of her ongoing problems with separation, loneliness, and affect tolerance, the examiner recommended to her unit that they pursue chapter proceedings, in the belief that her personality disorder would be likely to cause difficulties for her on an ongoing basis, especially in times of stress, making her deployability and dependability problematic for her future in military service. Post service in November and December 1996, veteran was counseled at a VA outpatient psychiatric clinic in Puerto Rico. On her initial visit in early November 1996, she complained of feeling tense, anxious, restless, and sometimes having a sleeping problem. She was seen by a doctor, who said that the veteran was unable to connect her current life circumstances to her mood state and that she requested long- term follow-up for better self understanding. She reported having been hospitalized twice during service for depression and being unable to perform at work. She reported conflicts with peers at work. On mental status evaluation, she was casually dressed, verbal, and outspoken. She presented a neutral mood and full range of affect. There were no psychotic symptoms. She presented with good judgment and fair insight. A psychology consultation report in December 1996 indicated that she appeared uptight and guarded, with moderate difficulty in focusing on central ideas, as she tended to go into details about the pressures and stressful situations experienced while on active duty. She was currently living with her boy friend. During the interview, she frequently sought reassurance, approval, and acceptance and also asked for direct advice, diagnosis, and prognosis. Although there was no evidence of a thought disorder, she did exhibit a tendency to derail her thoughts from central topics without awareness of process and to ruminate obsessively into small and intricate details. She evidenced a sense of uncertainty and a need for acceptance of structure and conveyed a general feeling of uneasiness, insecurity, and restlessness. Her mood was mildly depressed. Although her judgment was fair, her insight was poor. The veteran underwent a VA podiatry examination in January 1997. She complained, essentially, that if she stood for 20 or 30 minutes she developed pain in the bunions and the balls of both feet. On physical examination, she was able to stand, squat, do supination, pronation, and rise on toes and heels with both feet without problems. Examination of the left foot revealed a recurrent hallux valgus deformity. There was adequate function and a normal gait cycle with both feet. On the left bunion there was a well-healed scar, which was not tender to palpation. On the right foot, there was a well-healed bunionectomy scar with keloid tissue not tender to palpation. She lacked active extension of the tip of the right great toe. Muscle strength of both great toes, ankle dorsiflexors, and extensor hallucis longus was normal. All muscles of both ankles had normal muscle strength. The diagnosis was residuals of bilateral foot bunionectomy with post-surgical changes and wiring of previous fracture with soft tissue swelling of the right foot by x-ray. A VA psychiatric examination report in January 1997 stated that the veteran had apparently not worked since she was in the service. She reportedly had had two hospitalizations during service, one in 1995 for a period of 5 days and the other in October 1996 for 4 to 5 days. She admitted having a personality disorder. As to subjective complaints, she went into a detailed history of depression caused by feelings of pressure and difficulty in dealing with people. She reported that she was taking Prozac and was in Puerto Rico to be with her fiancé. She was apparently not following any organized psychiatric treatment. Objective findings indicated that she was dressed casually, looked clean and wore no makeup. She was alert, in contact, cooperative, and expressed herself freely. Thought content was relevant, coherent, and well organized, with no thought disorder or perceptive disorder. Memories were preserved and retention, recall, intellect, and sensorium were all clear. Although there was also a depressive component, no suicidal ruminations were detected. Her judgment was preserved. The Axis I diagnosis was depressive disorder, not otherwise specified, mild and in partial remission. The Axis II diagnosis was personality disorder, by history. The Axis V, Global Assessment of Functioning (GAF) was 75. In October 1997, the veteran testified at a hearing before an RO hearing officer. She stated that she really had wanted to remain in military service. As to any psychiatric problems before service, she said that she had talked to a psychiatric counselor once or twice about an incident that had occurred when she was sixteen or seventeen. After this episode, she had had no subsequent problems. She claimed to have done well in active military service for about a year and a half, but then started feeling depressed because of the way she had been treated at work. She reported having been hospitalized twice, but only became worse. Following discharge from service, she had gone to Puerto Rico, where she had been getting psychiatric treatment at VA once a month. As to residuals of bilateral foot bunionectomy, she maintained that the surgery had not worked and that the condition had gone back to the way it was before surgery. Although she had no pain, her toes were numb and she was unable to feel them. She was under the impression that a doctor in San Juan felt that she would have to undergo surgery again. In November 1997, the veteran was afforded another psychiatric examination by a different examiner. She had been unemployed since military service, lived with her fiancé, and was studying at the Interamerical University in San German. She complained that her emotional problems in the military had been caused by discrimination by men in her office, as she had been doing an excellent job working for all of them while they were having fun. She believed that she should thus be compensated for the mistreatment from her fellow workers and supervisor. She added that she was always blamed because of her attitude and for everything that happened and that she could no longer trust anyone, had poor self esteem, spent all day at home, had no friends, and had gained 50 pounds since her depression began. Objective examination revealed that the veteran was clean, adequately dressed and groomed, and alert and oriented. Her mood was somewhat depressed and her affect labile. She varied from laughter to almost tears while relating her complaints. Attention, concentration, and memory were fair. She demanded attention. Her speech was clear and coherent, but circumstantial at times. She was not suicidal, homicidal, or hallucinating. Insight and judgment were fair, and she exhibited good impulse control. The Axis I diagnosis was depressive disorder, not otherwise specified. The Axis II diagnosis was borderline personality disorder. The Axis V GAF was currently 75. This examiner opined that, based on the current evaluation, history, and military records, he considered the above diagnoses, given while in the service, as correct. He also believed that the veteran's most disabling condition was her characterological disorder. II. Legal Analysis A. Service Connection for a Depressive Disorder The veteran's claim for service connection for a depressive disorder is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant and available facts have been properly developed. VA has accomplished its duty to assist by acquiring military and VA medical records, providing a recent medical examination, and granting the opportunity of a personal hearing before a Member of the Board. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A presumption of aggravation applies when a preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). The veteran's diagnoses include two components: a personality disorder and a depressive disorder. Considering first the personality disorder component, VA regulations provide that there are medical principles so universally recognized as to constitute fact, and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently, with notation or discovery during service of such residual conditions, the conclusion must be that they preexisted service. Specifically, in the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing pre-service origin. 38 C.F.R. § 3.303(c) (1999). Personality disorders as such are not diseases or injuries within the meaning of applicable legislation and, hence, may not be service connected. Id. Under 38 U.S.C.A. § 1111 (West 1991), where a defect has not been noted at the time of examination for entry into service, a veteran is afforded a presumption of sound condition upon entry into service. That presumption can be rebutted by clear and unmistakable evidence (obvious or manifest) that a disability existed prior to service and was not aggravated by such service. 38 C.F.R. § 3.304(b); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). As the veteran's service medical records show, a nervous or depressive disorder was not detected during her enlistment examination. She is thus entitled to the presumption of soundness. Military records reveal a history of preexisting suicidal ideation and psychiatric treatment as a teenager. This evidence alone is not conclusive, however, as it has not been corroborated by contemporaneous medical evidence. What is more persuasive is that the August 1996 service hospitalization report indicated that the veteran was hospitalized to ensure her safety and stabilization and to assist her in dealing with emotional issues by increasing her coping skill and self control. Not only was she shown to have no objective symptoms of a depressive disorder, but, despite a diagnosis of depressive disorder, the military examiner recommended separation from service only because of the personality disorder. He stated that this prevented her from dealing well with stressful situations, inferring that a depressive disorder was a transient reaction to psychosocial stress which might recur periodically during military life. Post-service examination in November 1997 also resulted in diagnoses of depressive disorder and personality disorder. The VA examiner stated, however, that the personality disorder was the more disabling. Moreover, both VA examiners estimated the veteran's Global Assessment of Functioning (GAF) as 75 under DSM IV. This assessment notes that if symptoms are present, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. Since the veteran's pre-existing personality disorder has prevented her from developing coping mechanisms with which to deal effectively with such stressors, the tendency to develop a depressive component also pre-existed service. Accordingly, the presumption of soundness has been rebutted by clear and convincing evidence. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (1999). Thus, in deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been a measured worsening of the disability during service and then whether this constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). An Army psychiatric report in August 1996 stated that the veteran's hospitalization had been to ensure her safety and stabilization, and to assist her in dealing with her emotional issues and in increasing her coping skill and self control. Initially, upon admission, she showed no objective symptoms of a neuropsychiatric disability. She was found to be well oriented, possessed good memory and concentration, denied current suicidal or homicidal ideation, and even laughed and joked throughout the examination. Although she had complained about dysphoria, she revealed no overt evidence of this during the hospital course. It is significant, as well, that separation from service was recommended solely on the basis of her personality disorder, without reference to a depressive mood. The lack of the characteristic symptomatology of a depressive disorder thus clearly shows that there had been no measurable worsening of a preexisting depressive disorder during service. Post-service examination in January 1997 indicated that the depressive disorder was mild and in partial remission. The examiner in November 1997 noted symptoms of depressed mood, labile affect, somewhat circumstantial speech, and a demand for attention, but no symptoms representative of a more serious problem. Having most thoroughly reviewed the evidence, the most that can be said of the status of a pre-existing tendency to an underlying emotional instability during service is that symptoms of a depressive disorder were transient and flared up due to the veteran's perception of unfair treatment. See Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Temporary occurrences not resulting in overall worsening of a veteran's condition during service are insufficient to be considered aggravation in service. Because there is no evidence that this veteran's depressive disorder underwent an increase in severity during service, the Board finds that she is not entitled to the presumption of aggravation. Id. While there was transient reactivation of symptoms due to a stressful situation, the underlying condition itself did not worsen. Moreover, the evidence does not show an increase in disability such as to cause a resulting impairment in earning capacity. 38 C.F.R. § 4.1 (1999). In summary, the Board finds that regulations do not permit the granting of service connection for a personality disorder, that the presumption of soundness in terms of a depressive disorder has been rebutted by clear and convincing evidence, and that the preponderance of the evidence is against her claim for service connection for a depressive disorder. The claim must therefore be denied. Although the Board has considered the doctrine of benefit of doubt under 38 U.S.C.A. § 5107, it finds that, since the record does not provide an approximate balance of positive and negative evidence on the merits, there is no reasonable basis for granting service connection as to this issue. B. Increased Rating for Residuals Bilateral Bunionectomy The veteran has presented a well-grounded claim for an higher disability evaluation for residuals of a bilateral foot bunionectomy with post-surgical changes within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The VA has met its duty to assist by obtaining the veteran's military records, affording her a recent VA podiatry examination, and according her a hearing before the RO. Sufficient evidence is of record for an equitable disposition of this appeal, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran filed her initial claim in November 1996. She underwent a VA podiatry examination in January 1997. In March 1997, the RO granted her service connection for residuals of a bilateral foot bunionectomy with post-surgical changes with an evaluation of 10 percent, effective from October 26, 1996, the day following her separation from service. In July 1997, the veteran submitted a notice of disagreement and in October 1997 her substantive appeal. This claim involves the veteran's dissatisfaction with the initial rating assigned following a grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). This appeal being from the initial rating assigned to a disability upon awarding service connection, the entire body of evidence is for equal consideration, with the rating higher or lower for segments of the time under review on appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The veteran has been evaluated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284 for residuals of a bilateral foot bunionectomy with post-surgical changes. Since this condition does not have a specific diagnostic code, this disorder is rated as analogous to other foot injuries under Diagnostic Code 5284, which provides that a severe foot injury is evaluated at 30 percent, a moderately- severe injury at 20 percent, and a moderate injury at 10 percent. The medical evidence does not show symptomatology of a moderately severe disorder. The veteran's functional complaints are few. She has stated that she develops pain in the bunions and the balls of both feet after standing for more than 20 or 30 minutes. She contended at her personal hearing that her toes were numb and had lost sensation and that the surgery had not worked, as the condition had gone back to its original state. There was no medical evidence of impairment of function or gait cycle. There was no tenderness on palpation. Examination did reveal, however, that the hallux valgus deformity of the left foot had recurred; there was a lack of active extension of the tip of the right great toe; and soft tissue swelling of the right foot had been shown by x-ray. On the other hand, the evidence did not show evidence of additional or more severe symptoms such as tenderness, callus formation, or degenerative changes, and there was no functional limitation or muscle atrophy. Without functional limitation attributable to the bunionectomies, the ten percent evaluation would appear to more than adequately compensate for the subjective complaints of numbness. Therefore, the preponderance of the evidence is against the assignment of a disability evaluation in excess of 10 percent under this diagnostic code. In comparing the veteran's symptomatology to other similar diagnostic codes, it is clear that her overall level of disability is no more than moderate. Under Diagnostic Code 5171, amputation of the great toe without metatarsal involvement warrants a 10 percent rating. Under Diagnostic Code 5280 for unilateral hallux valgus, the only disability rating is 10 percent, whether the condition is severe and equivalent to amputation of the great toe or whether it has been operated on with resection of the metatarsal head. Under Diagnostic Code 5281, unilateral severe hallux rigidus is rated as severe hallux valgus, also at an evaluation of 10 percent. Therefore, although the criteria under Diagnostic Code 5284 are less defined, when comparing the veteran's symptomatology to other similar diagnostic codes, the Board finds that her overall level of disability is no more than moderate. Accordingly, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 10 percent for the veteran's service-connected residuals of bilateral bunionectomy at any time since the initial grant of service connection. The preponderance of the evidence being against this claim, the benefit of the doubt rule is not for application. ORDER Service connection for a depressive disorder is denied. An evaluation in excess of 10 percent for residuals of a bilateral foot bunionectomy with post-surgical changes is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals