Citation Nr: 0811304 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-19 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability rating for service-connected bilateral pes planus, to include heel spurs, plantar fasciitis and tarsal tunnel syndrome, currently evaluated as 30 percent disability effective April 14, 1991. 2. Entitlement to an increased disability rating for service-connected lumbosacral strain, currently evaluated as 20 percent disabling effective March 2, 1982. 3. Entitlement to an increased disability rating for service-connected hiatal hernia, currently evaluated as 10 percent disabling effective March 2, 1982. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from February 1959 to August 1978. Service in Vietnam is evidenced in the record. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's February 2003 claim for increased disability ratings. The veteran disagreed and timely appealed. In April 2006 the veteran and his representative presented evidence and testimony in support of his claim at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is included in the veteran's VA claims folder. Issues not on appeal The veteran submitted a claim for service connection for diabetes Type II, peripheral neuropathy and individual unemployability (TDIU). Service connection for diabetes Type II was granted in a December 2004 rating decision with a disability rating of 10 percent, effective May 27, 2003, the date of the veteran's claim. The record does not indicate the veteran disagreed with that decision. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement (NOD) initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. Thus, the issue is not in appellate status. The record also indicates that a March 2005 rating decision denied the veteran's claims for service connection for peripheral neuropathy and entitlement to TDIU. The record does not include a NOD regarding either issue. Thus, they are also not in appellate status. See Archbold supra. FINDINGS OF FACT 1. The veteran's service-connected pes planus is manifested by complaints of pain while walking, standing and at rest; complaints of swelling and lack of endurance when standing or walking; and, relief from orthotics. There is no objective evidence of swelling, weakness, painful motion, or abnormal weight bearing. 2. The veteran's service-connected lumbosacral strain condition is manifested by pain, substantially intact ranges of motion, and radiological evidence of degenerative changes. 3. The veteran's service-connected hiatal hernia is manifested by complaints of weekly episodes of pain occurring after eating relieved by antacids, and a history of daily episodes of nausea and weekly vomiting and diarrhea. CONCLUSIONS OF LAW 1. Entitlement to an increased disability rating for service-connected bilateral pes planus, to include heel spurs, plantar fasciitis and tarsal tunnel syndrome, is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2007). 2. Entitlement to an increased disability rating for service-connected lumbosacral strain is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5292, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5237, 5242 (2007). 3. Entitlement to an increased disability rating for service-connected hiatal hernia is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran essentially contends that his service-connected disabilities have gotten worse. The Board will discuss preliminary matters and then address the merits of each claim. Stegall concerns In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. As noted above, the Board remanded the veteran's claim for further procedural and evidentiary development. Specifically, the Board ordered VBA to request that the veteran identify private medical treatment records pertaining to his claimed service-connected disabilities from June 2004; required that the veteran undergo an orthopedic examination to determine the scope and nature of the veteran's service- connected spine disabilities; undergo an examination by a podiatrist; and undergo an examination by a specialist in gaastroesophageal disorders. The remand also required that the examiner indicate whether the veteran's VA claims folder had been reviewed, and to provide medical opinions with complete rationale in writing. The record reveals that the veteran was examined by a VA medical provider in March 2007. The examiner provided an assessment of the current condition of each of the veteran's claimed service-connected disabilities, and provided an opinion regarding whether and to what degree the veteran's disabilities impacted his everyday life. Although VBA is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). In this case, the Board finds that the RO has substantially complied with the November 2006 remand order. Duties to notify and assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO provided the appellant with notice in letters dated June 2005 and January 2007 prior to the September 2007 Supplemental Statement of the Case (SSOC). Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to substantiate his claim for increased ratings. Specifically, both letters stated that the evidence must show that his service connected disabilities have increased in severity. Additionally, the May 2004 statement of the case (SOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim. In addition, the RO notified the veteran in that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. Finally, in the June 2005 notice letter, the RO informed the claimant to submit any evidence in his possession that pertains to the claim. Thus, because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Further, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided specific Dingess notice in a letter dated March 2006, and was further informed in the January 2007 letter of elements (4) and (5). In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records as well as all available VA treatment records and private medical records identified by the veteran are in the claims file and were reviewed by both the RO and the Board in connection with his claim. He was also afforded VA examinations in April 2004 and March 2007 in connection with his claims for increased ratings. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Additionally, the Board finds that the veteran received appropriate notice, with respect to the increased rating claims, under Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Specifically, the SOC informed the veteran of the specific diagnostic code criteria which applied to his case. Significantly, the veteran's representative has submitted briefs in support of the veteran's claim dated. In the brief, the veteran's representative set out the specific criteria of the diagnostic codes pertaining to the veteran's claims for disabilities, and specified the relevant symptomatology for those disabilities. Such statements make clear that the veteran through his representative had actual knowledge of the information required under Vazquez-Flores. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The record reveals that the veteran waived his right to a hearing before a local hearing officer and did not seek a hearing before a Veterans Law Judge. See veteran's statement of August 24, 2004. The Board will therefore proceed to a decision on the merits. 1. Entitlement to an increased disability rating for service-connected bilateral pes planus, to include heel spurs, plantar fasciitis and tarsal tunnel syndrome, currently evaluated as 30 percent disability effective April 14, 1991. Relevant law and regulations Increased ratings - in general Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Specific rating criteria Bilateral acquired flatfoot is rated as follows: A 30 percent rating is assigned for severe symptoms: objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is assigned for pronounced symptoms: marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2007). Assignment of diagnostic code The veteran's service-connected pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276 [Flatfoot, acquired]. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5276 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the veteran's case (pes planus). The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the veteran has not requested that another diagnostic code be used. There is no evidence of record indicating the veteran has been diagnosed with weak foot, claw foot halliux valgus or hammer toe. Accordingly, the Board concludes that the veteran is appropriately rated under Diagnostic Code 5276. Schedular rating The veteran's pes planus was described in the most recent medical examination as causing pain while walking, standing and at rest. The veteran also reported he experiences swelling in his feet while walking. No heat, redness, stiffness, fatigability or weakness was reported, and no indication of flare ups was noted. The examiner stated that the veteran reported a lack of endurance that occurs while standing and walking. The veteran is able to stand for about 15-30 minutes and is able to walk more than 1/4 mile but less than a mile. The veteran receives good relief from orthotics. The examiner noted no objective evidence of swelling, weakness, painful motion, or abnormal weight bearing. The examiner opined that the veteran's pes planus was "partially improved by the use of orthopedic appliances." As noted above, a 50 percent disability rating is assigned for pronounced symptoms: marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. There is no evidence of record that the veteran's condition includes marked pronation, extreme tenderness, marked inward displacement, or severe spasms on manipulation, and his condition is improved by appliances. Accordingly, the Board finds that the veteran's pes planus condition does not meet the criteria for an increased disability rating. Fenderson consideration The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). After review of the entire record, the Board finds that there is no evidence that the veteran's pes planus condition has met the criteria for an increased rating during the period from one year prior date of the claim to the March 2007 examination. Indeed, the April 2004 examiner noted there was no evidence of plantar fasciitis or heel spurs, no evidence of swelling, and there was no indication of abnormal or marked pronation, marked inward displacement, or severe spasm of the tendo achillis on manipulation. Although the veteran did complain to the April 2004 examiner that prosthetics gave him limited relief, this single criteria, by itself, is not sufficient to warrant an increased disability rating. For those reasons, the Board finds that staged ratings are not appropriate in this case. DeLuca considerations The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2006). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). Because Diagnostic Code 5726 is not predicated on limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Extraschduler concerns Extrascheduler concerns will be addressed at the end of the decision. 2. Entitlement to an increased disability rating for service-connected lumbosacral strain, currently evaluated as 20 percent disabling effective March 2, 1982. The relevant law and regulations for increased ratings in general are addressed above and will not be repeated here. Rating musculoskeletal disabilities The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See 38 C.F.R. § 4.40 (2007). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2007). Specific rating criteria The veteran's claim was received by the RO February 2003. Subsequent to the veteran's claim, the applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended effective September 26, 2003. See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. In the May 2004 SOC, VBA informed the veteran of the new criteria and readjudicated the claim under both the old and new criteria. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will similarly apply both the old and new versions of the criteria to the veteran's claim. However, the revised criteria may not be applied to any time period before the effective date of the change. See VAOPGCPREC 3- 2000; see also Green v. Brown, 10 Vet. App. 111, 117 (1997). (i.) The former schedular criteria Under the 2001 criteria, the veteran's service-connected low back disability has been evaluated by the RO under 38 C.F.R. §§ 4.71a, Diagnostic Code 5295 [lumbosacral strain] (2001). Diagnostic Code 5295, effective prior to September 26, 2003, provided the following: Diagnostic Code 5295, effective prior to September 26, 2003, provided the following: Severe; with listing of whole spine to opposite side, positive Goldwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion . . . . . . . 40 percent With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position . . . . . . 20 percent With characteristic pain on motion . . . . . . . . . .10 percent With slight subjective symptoms only . . . . . . . . 0 percent See 38 C.F.R. § 4.71a, Diagnostic Code 5295 (prior to September 23, 2002). Degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2002 and 2007). Former Diagnostic Code 5292 [spine, limitation of motion of, lumbar] provided the following levels of disability: 40% - Severe; 20% - Moderate; 10% - Slight. See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Words such as "slight" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2006). The Board observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition (1988) 871. (ii.) The current schedular criteria For diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective September 26, 2003, a General Rating Formula for Diseases and Injuries of the Spine will provide that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease the following ratings will apply. The General Rating Formula for Diseases and Injuries of the Spine provides as follows: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2007). Analysis Assignment of diagnostic code The veteran's service-connected low back disability was initially rated under former Diagnostic Code 5295 [lumbosacral strain]. It is currently rated under Diagnostic Code 5237 [Lumbosacral or cervical strain], which means that it is rated under the General Rating Formula for Diseases and Injuries of the Spine. The Board must first consider whether another rating code is "more appropriate" than the ones used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). As stated above, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case. See Butts supra. An individual's relevant medical history, the diagnosis and demonstrated symptomatology is considered to determine the appropriate diagnostic code. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The veteran's service-connected low back disability is manifested by slightly limited range of motion, lower back pain on repeated flexion, and radiological evidence of degenerative changes. The diagnosis reported in the March 2007 VA examination of the veteran was lumbar strain. The results of an April 2004 MRI revealed "late intervertebral osteochondrosis at L1-L2 with early intervertebral osteochondrosis at L3-L4, L4-L5 and L5-S1. April 2004 x-ray evidence revealed "endplate spurring at L1-L2 with some disc space narrowing . . . also some spurring at the superior anterior endplate of L4 . . . good alignment . . . the sacrum and coccyx are with in normal limits." The x-ray examiner interpreted the evidence to show "minimal degenerative change of the lumbosacral spine." Based on these diagnoses of lumbar strain and arthritic change, the Board has determined that the most appropriate diagnostic codes are former Diagnostic Codes 5295 and 5292 and current Diagnostic Code 5237. With respect to the current schedular criteria, all lumbar spine disabilities except intervertebral disc syndrome are rated using the same criteria, so even if the veteran's disability was to be rated under current Diagnostic Code 5242 [degenerative arthritis of the spine] instead of current Diagnostic Code 5237 [lumbosacral strain], this would in no way change the outcome of the case. With respect to former Diagnostic Code 5293 and current Diagnostic Code 5243 [intervertebral disc syndrome], although the veteran has complained of pain radiating from the lower back, intervertebral disc syndrome has never been clinically identified or even suggested in the medical records. In summary, the Board believes that the veteran has been appropriately rated by the RO under Former Diagnostic Codes 5295 or 5292 and current Diagnostic Code 5237. Schedular rating (i) The former criteria The veteran's lumbar spine disability has been assigned a 20 percent rating under former Diagnostic Code 5295. Essentially, the veteran complains of lower back pain, primarily localized to the lumbosacral spine. The veteran reported to the March 2007 examiner that his low back pain was dull and becomes sharp with motion. The pain lasts for a period of 1-2 days and occurs anywhere from 1 to 6 days per week. The veteran further reported that he suffers from severe weekly flare-ups that last 1-2 days. He also reported that he gets relief by limiting his back motion. On examination, there was no evidence of spasm, atrophy, guarding, tenderness, or weakness. The veteran's thoracolumbar range of motion was described by the March 2007 examiner as forward flexion of 0-80 degrees [0-90 degrees being normal, see 38 C.F.R. § 4.71a, Plate V]; extension of 0-25 degrees [0-30 degrees being normal]; left and right flexion 0-25 [30 degrees being normal]; and rotation 0-30 degrees bilaterally [0-45 degrees being normal]. The examiner stated that there was verbalization of pain after repetitive flexion. A 40 percent rating under former Diagnostic Code 5295 requires severe symptoms including listing of whole spine to opposite side, positive Goldwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The veteran's current disability does not meet the criteria of an increased disability rating. There is nothing in the medical record regarding muscle spasm on extreme forward bending and there is very limited loss of spine motion. Taking all the evidence into consideration, the Board finds that the most appropriate rating under former Diagnostic Code 5295 is 20 percent. As was alluded to above, the veteran's low back disability may also be rated under former Diagnostic Code 5292 [limitation of motion, lumbar spine] Under that diagnostic code, a 40 percent rating would also be in order based on limitation of motion which is most appropriately described as severe. The medical evidence, in particular the reports of April 2004 and March 2007 VA examinations, shows that there is no significant limitation of motion. There is no evidence that any limitation of motion approaches that which could be described as "moderate" [i.e., forward flexion limited to 45 degrees, extension limited to 15 degrees, etc.]. An increased disability rating is accordingly not warranted under the former schedular criteria. (ii) The current criteria Under the current criteria, the veteran's back disability is rated under the general rating formula for back disabilities set out in the law and regulations section above. To obtain a disability rating higher than the currently assigned 20 percent under the current spine regulations, a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As discussed above, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. See 38 C.F.R. § 4.71a, Plate V (2007). The normal combined range of motion is 240 degrees. As noted above, the veteran had forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, and bilateral rotation of 30 degrees. The veteran's most recent range of motion is far in excess of the limited range of motion required for the assignment of a 40 percent rating. Moreover, there is no evidence of ankylosis of any portion of the spine. The 2004 and 2007 examiners noted that the veteran's gait was normal; there is no evidence that the gait is abnormal. No scoliosis, reversed lordosis or abnormal kyposis is noted. In short, there is no basis for assigning a higher disability rating under the general formula for rating spine disabilities, and, for reasons stated above, the Board finds that an increased schedular rating may not be assigned under the current schedular criteria. Fenderson consideration As above, the Board will consider whether "staged ratings" are appropriate in this case pursuant to Fenderson supra. After review of the entire record, the Board finds that there is no evidence that the veteran's lumbar strain condition has met the criteria for an increased rating during the period from one year prior date of the claim to the March 2007 examination. Indeed, the April 2004 examiner noted forward flexion to 68 degrees. As above, there was no evidence of ankylosis in any portion of the spine. Thus, the April 2004 examination does not reveal symptoms which meet the criteria for an increased rating under either the former or current criteria. For those reasons, the Board finds that staged ratings are not appropriate in this case. Esteban considerations Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single entity, are to be rated separately. See 38 C.F.R. § 4.25 (2007); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, the anti-pyramiding provision of 38 C.F.R. § 4.14 (2007) provides that evaluation of the same disability under various diagnoses is to be avoided. Currently, Note (1) under the General Rating Formula directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The record on appeal, however, does not contain objective medical evidence of significant associated neurological symptomatology. No foot drop, ankle jerk or other symptom of lower extremity disability is indicated by the medical evidence. As noted above, no evidence of peripheral neuropathy is of record and the March 2007 examiner concluded that the veteran's pattern of sensory loss for lower extremities was "non specific." Based on the absence of significant objectively demonstrated neurological symptomatology, the Board finds that a separate rating for neurological impairment is not warranted. In addition, the veteran carries two low back diagnoses, lumbosacral strain and degenerative changes to the lumbar spine. Based on identified symptomatology, there is in essence to a single low back disability, manifested by low back pain. Separately rating the two diagnoses would amount to prohibited pyramiding. See 38 C.F.R. § 4.14 (2007) [the evaluation of the same disability under various diagnoses is to be avoided]. Thus, Esteban considerations are not for application in this case. DeLuca considerations The Board has considered whether an increased disability rating is warranted for the veteran's lumbosacral strain disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45 and 4.59, and the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is unable to identify any clinical findings that would warrant an increased evaluation under 38 C.F.R. §§ 4.40, 4.45 and 4.59. Neither the April 2004 nor the March 2007 examiner reported that repetition of lateral bending and rotational movements revealed excess fatigability, incoordination or weakness. The record indicates that the veteran does not use a brace or a device to assist with walking. There is no objective indication of impairment of function due to pain. The Board is of course aware of the veteran contentions that he can walk only short distances and is otherwise severely limited, according to him because of his low back disability. However, this is not established in the medical records. Those records show that the veteran has a host of other disabilities, some of which are service connected and some of which are not. It is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 491, 494- 5 (1992) see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The statements offered by the veteran do not serve to outweigh the body of competent medical evidence in this case, which indicate that the back disability is manifested principally by slightly limited ranges of motion. Thus, assignment of additional disability based on DeLuca factors is not warranted. Extraschedular consideration Extraschedular consideration will be addressed at the end of the decision. 3. Entitlement to an increased disability rating for service-connected hiatal hernia, currently evaluated as 10 percent disabling effective March 2, 1982. The relevant law and regulations for increased ratings in general are addressed above and will not be repeated here. Specific rating criteria The veteran's claim was rated under Diagnostic Code 7346 [Hernia hiatal]. Under Diagnostic Code 7346, the following levels of disability are included. 60% Symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health; 30% Persistently recurrent epigastric distress, with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; 10% With two or more of the symptoms for the 30 percent evaluation, of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). Assignment of a diagnostic code As stated above, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case. See Butts supra. An individual's relevant medical history, the diagnosis and demonstrated symptomatology is considered to determine the appropriate diagnostic code. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 7346 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the veteran's case (hiatal hernia). The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the veteran is appropriately rated under Diagnostic Code 7346. Schedular rating The veteran's hiatal hernia is manifested by complaints of pain on a weekly basis, occurring several hours after eating and relieved by antacids. The veteran reported to the March 2007 examiner that he very rarely will see streaks of blood when he coughs up phlegm. In addition, the veteran reported a history of daily episodes of nausea and weekly vomiting and diarrhea. In conclusion, the examiner noted the following: This disability does not result in considerable or severe impairment of health. [The veteran] has had this condition since 1960 and only takes antacids. This reveals a minimalist concern and definitely not a dangerous condition. In the event this was an impairment to his health I would assume the patient would have surgical intervention to correct or repair any stated complaints. It does not appear any new treatment or interventions has been asked for or initiated by the patient. An April 2004 examiner conducted an esophogram which revealed "normal esophageal motility . . . a small hiatal hernia . . . no gastroesophageal reflux was seen." The diagnosis was "small hiatal hernia; no evidence of reflux." As noted above, in order to warrant an increased disability rating the evidence must reveal "persistently recurrent epigastric distress, with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health." The Board finds that there is no objective record evidence of epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain that combines for a consideral impairment of health. Indeed, the condition appears to respond to administration of antacids. For those reasons, the Board finds that an increased disability rating is not warranted. Fenderson consideration As above, the Board will consider whether "staged ratings" are appropriate in this case pursuant to Fenderson supra. The record includes a June 2003 VA medical examination report which stated that the veteran suffered from "gastroesophageal reflux disorder worsened by tobaccoism and coffee." The examiner also reported that the veteran was on no medications, but occasionally took Mylanta. There is no objective record evidence of epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain that combined for a considerable impairment of health. As noted above, the April 2004 examiner found a "small hiatal hernia," but did not report that the veteran suffered from epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain that combined for a considerable impairment of health. For those reasons, the Board finds that staged ratings are not appropriate in this case. Extraschedular consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted only upon a finding that the case presents an exceptional or unusual disability that causes marked interference with employment or frequent periods of hospitalization which renders impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). The record shows that the veteran has not requested an extraschedular rating, and RO did not in fact consider the matter of an extraschedular rating. Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96 [finding that the Board may deny extraschedular ratings, provided that the RO has fully adjudicated the issue and followed appropriate appellate procedure]; see also Bernard v. Brown, 4 Vet. App. 384 (1993) [when the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby]. Thus, the Board does not have jurisdiction over the matter of an extraschedular rating. If the veteran believes that such is in fact warranted, he should raise that matter with the RO. ORDER Entitlement to an increased disability rating for service- connected bilateral pes planus, to include heel spurs, plantar fasciitis and tarsal tunnel syndrome is denied. Entitlement to an increased disability rating for service- connected lumbosacral strain is denied. Entitlement to an increased disability rating for service- connected hiatal hernia is denied. ____________________________________________ Frank J. Flowers Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs