Citation Nr: 0813892 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-24 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date earlier than September 30, 1999, for entitlement to service connection for chronic cervical strain. 2. Entitlement to an increased disability rating for service-connected chronic cervical strain currently evaluated as 20 percent disabling effective June 20, 1999. 3. Entitlement to a compensable disability rating for service-connected residuals of right fibular fracture currently evaluated as noncompensably (0 percent) disabling effective June 30, 1999. 4. Entitlement to a compensable disability rating for service-connected bilateral hearing loss currently evaluated as noncompensably (0 percent) disabling effective June 30, 1999. 5. Entitlement to a compensable disability rating for service-connected bilateral pes planus currently evaluated as noncompensably (0 percent) disabling effective November 18, 2002. 6. Entitlement to a compensable disability rating for hemorrhoids currently evaluated as noncompensably (0 percent) disabling effective November 18, 2002. 7. Entitlement to service connection for a digestive disorder to include gastroesophageal reflux disease (GERD), gastritis, and dyspepsia. 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 September 1982 to May 1998. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. During the pendency of the appeal, the veteran relocated to Illinois. The VA RO in Chicago, Illinois, currently has jurisdiction over the claims. Procedural history The veteran's June 30, 1999, claim for entitlement to service connection for residuals of a right fibular fracture was granted in an October 2002 rating decision which evaluated the disability as noncompensably disabling. The October 2002 rating decision also granted service connection for chronic cervical strain, evaluated as 0 percent disabling from June 30, 1999, and denied the remainder of the veteran's claims. In a June 2003 rating decision, the RO evaluated the service- connected cervical strain as 10 percent disabling from November 18, 2002; continued a noncompensable disability rating for service connected right fibular fracture residuals; granted service connection for bilateral hearing loss evaluated as noncompensably disabling; granted service connection for bilateral pes planus evaluated as noncompensably disabling; granted service connection for herpes evaluated as noncompensably disabling; granted service connection for hemorrhoids evaluated as noncompensably disabling; denied service connection for arthritis of the lumbar spine, dysrythmia heart, left knee condition, GERD and hepatitis. In an April 2004 rating decision, the RO granted a date earlier than November 18, 2002, for service connection for chronic cervical strain, effective June 30, 1999. The veteran disagreed and the RO issued an April 2004 statement of the case (SOC) which addressed the issues of entitlement to an earlier effective date for service connection for chronic cervical strain; entitlement to increased disability ratings for service-connected chronic cervical strain, right fibular fracture residuals, bilateral hearing loss, pes planus, hemorrhoids, arthritis lumbar spine, dysarrthymia heart, and GERD. The veteran's VA Form 9 substantive appeal appears to appeal all issues addressed in the SOC. As noted below, the issues of dysarrthymia heart and herpes were addressed in a March 2008 SOC. The veteran and his representative presented evidence and testimony before a local hearing officer at the Albuquerque RO in October 2004. In August 2007, the veteran and his representative presented evidence and testimony at a hearing at the Chicago RO before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings have been associated with the veteran's VA claims folder. Issues not on appeal The veteran's claims for an increased disability rating for dysarhythmia heart and herpes were denied in a November 2008 rating decision which also denied service connection for post-traumatic stress disorder (PTSD), chronic depression and GERD. The veteran submitted a timely NOD. However, the record does not include a substantive appeal. Thus, the issues, with the exception of the issue of entitlement to service connection for GERD, are not in appellate status and will be addressed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a 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]. The RO's March 2008 rating decision denying service connection for GERD has no effect; the issue was already pending on appeal at the time of the March 2008 decision. During the August 2007 hearing before the undersigned VLJ, the veteran indicated in his testimony that he experienced a right ankle condition as a result of his service-connected right fibular fracture residuals. The Board notes that an October 2006 VA examiner noted peroneal subluxation and DJD of the right ankle. This matter is referred to the RO for appropriate action. The issues of entitlement to an increased disability rating for chronic cervical strain and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's claim for entitlement to service connection for chronic cervical strain was received by the RO on June 30, 1999, and granted in an October 15, 2002, rating decision. 2. The veteran's service-connected residuals of a fibula fracture is manifested by nontender mid fibula callus, mild increased laxity of the distal tibiofibular joint that does not produce pain. 3. The veteran's service-connected bilateral hearing loss is manifested by bilateral hearing within normal limits, sloping to a mild sensorineural hearing loss in the left ear. 4. The veteran's service-connected pes planus disability is manifested by mild bilateral hallux pronator valgus and mild subtalar neutral position forefoot. 5. The veteran's service-connected hemorrhoids are manifested by two nontender lumps that do not bleed. CONCLUSIONS OF LAW 1. The correct effective date of the grant of service connection for chronic cervical strain is September 30, 1999. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). 2. The criteria for a compensable rating for residuals of a right fibular fracture are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385, 4.85, Diagnostic Code 6100 (2007). 4. The criteria for a compensable rating for pes planus are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2007). 5. The criteria for a compensable rating for hemorrhoids are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that an effective date of May 21, 1998, is mandated for his service-connected chronic cervical strain. He also contends that his service-connected disabilities are worse than accepted by VA. The Board will address certain preliminary matters, and then render a decision on the issues. 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 did provide the appellant with notice in December 2002 and January 2005 prior to the initial decisions on the claim in June 2003 and January 2005, as well as in December 2005. 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 claims for service connection and for increased ratings, and for an earlier effective date. Additionally, the 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 January and December 2005 notice letters, 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 notice in a letter dated August 2007. In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records and portions of his military personnel record as well as all available VA treatment records 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 in connection with his claims for residuals of fibular fracture, hearing loss, pes planus, and hemorrhoids. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with SOCs, 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. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). As noted in the Introduction, the veteran and his representative have presented evidence and testimony in support of the veteran's claims at hearings before a local hearing officer and the undersigned VLJ. The Board will therefore proceed to a decision on the merits. 1. Entitlement to an effective date earlier than September 30, 1999, for entitlement to service connection for chronic cervical strain. Relevant law and regulations Effective dates Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). Analysis The veteran and his representative contended at the August 2007 hearing that the appropriate effective date for his service-connected cervical strain is the day of his discharge, May 21, 1998. They argue that the veteran wasn't aware that the effective date of a claim is the date of receipt of the claim or the date the entitlement arose, whichever is later, and had he known, he would have submitted his claims earlier. The law is clear: a claim shall be the date of receipt or the date entitlement arose, whichever is later. [Emphasis added]. 'Shall' is defined as "will have to; must." See Merriam Webster's Dictionary, Eleventh Ed. 2003, at page 1143. Based on the plain language of the regulation, the Board finds that the veteran's ignorance of the law and regulation is not relevant; the regulations specify that an effective date does not begin after the veteran realizes what the law requires, but rather when the claim is filed or the entitlement arose, whichever is later. The Board emphasizes that it is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. Because the law, and not the facts, is dispositive of the issue, the veteran has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). 3. Entitlement to a compensable disability rating for service-connected residuals of right fibular fracture currently evaluated as noncompensably (0 percent) disabling effective June 30, 1999. Relevant law and regulations 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). Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Specific rating criteria The veteran's service-connected residuals of a fibular fracture disability is currently evaluated as 0 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5262 [Tibia and fibula, impairment of]. Under Diagnostic Code 5262, the following disability ratings are provided: Nonunion of, with loose motion, requiring brace . . . . . . . . 40 percent; Malunion of: With marked knee or ankle disability . . . . . . . . 30 percent; With moderate knee or ankle disability . . . . . . . 20 percent; With slight knee or ankle disability . . . . . . . . . . 10 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). Rating musculoskeletal disabilities The 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 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2007). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2007). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2007). Analysis Assignment of diagnostic code 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 5262 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 (residuals of fibula fracture). 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 5262. Schedular rating The veteran's fibula disability is evaluated as noncompensable. As noted above, in order to establish a higher disability rating, the evidence must show malunion of the tibia and fibula with slight knee or ankle disability. In this case, the October 2006 VA examiner reported that "[O]n palpation over the fibula there is a mild increase consistent with callus of the mid fibula, which is nontender." The Board observes that "callus" is defined as "a composite mass of tissue that forms at a fracture site to establish continuity between the bone ends; it is composed initially of uncallused fibrous tissue and cartilage, and ultimately of bone." See Stedman's Medical Dictionary, 27th Edition, 2000 at page 270. The examiner also noted that "[T]here is a mild increased laxity of the distal tibiofibular joint that does not produce pain." The key question is whether the medical evidence reveals a "malunion" of the tibia and fibula. "Malunion of the ends of a broken one resulting in a deformity or a crooked limb; frequently used interchangeably with faulty malunion." See Stedman's Medical Dictionary, 27th Edition, 2000 at page 1059. In this case, the issue is whether a "mild increased laxity of the distal tibiofibular joint" is a malunion. After review of the entire record, the Board finds that it is; the veteran's tibiofibular joint has a mild increased laxity, and thus, the union of the tibiofibular joint is not normal. The medical evidence also reveals an ankle disability. The veteran, a physician's assistant, testified at the August 2007 hearing that "when the bone [fibula] had healed, it was slightly rotated from how it had been before it'd fractured . . . and anytime there's a fracture to a bone or an injury to a joint, you're gonna end up with arthritis later on." See hearing transcript at page 17. The veteran went on to describe how the main manifestation of pain and instability was felt in the right ankle. The veteran testified that the ankle gives out infrequently, approximately one time every two months. See hearing transcript at page 18. The Board accepts the veteran's competence to testify as to medical matters. Cf. Goss v. Brown, 9 Vet. App. 109 (1996). He is certainly competent to testify as to the symptomatology he experiences regarding a disability. But the testimony must be consistent with the medical evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. In this case, the August 2007 examiner noted that the veteran had "ankle symptoms of peroneal subluxation . . . ." Thus, there is medical evidence of record that tends to corroborate the veteran's testimony. As noted above, a slight ankle disability results in a 10 percent rating, a moderate disability results in a 20 percent rating and a marked disability results in a 30 percent rating. The Board observes that the words "slight," "moderate and "marked" are not defined in VA regulations. However, "slight" is defined as "small in its kind or amount," "moderate" is defined as "having average or less than average quality," and "marked" is defined as "having a distinctive or emphasized character." See Webster's Ninth New Collegiate Dictionary (1990), pages 1108, 762 and 728 respectively. The Board finds that the veteran's disability is slight. The VA examiner noted that the "subluxation of the peroneus longus at the ankle joint is tender." The veteran stated that his ankle was painful and gave way about once every two months. The mid -fibula callus was described as "nontender." The "increased laxity of the distal tibiofibular joint" was described not to "produce pain." Thus, for those reasons, the Board finds that the veteran is entitled to an increased disability rating of 10 percent under Diagnostic Code 5262. The claim will be granted to that extent. The Board observes that the August 2007 examiner found x-ray evidence of degenerative joint disease, or arthritis of the right ankle. The Board did not consider such evidence in arriving at this decision. As noted in the Introduction, any issue of a separate rating for arthritis has been referred to the RO for appropriate consideration. 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). As was noted in the Introduction, the noncompensable disability rating was made effective as of the date of the veteran's claim, June 30, 1999. It appears from the medical record that the symptomatology attributable to his service- connected residuals of a fibula fracture has remained essentially consistent over the period since. Accordingly, the 10 percent rating is assigned for the entire period. DeLuca considerations The Board has considered whether an increased disability rating is warranted for the veteran's residuals of fibula fracture 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. The August 2007 examiner found that there was "no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination." The Board recognizes that the record indicates that the veteran stated that he occasionally experiences flare-ups and that periods of exercise aggravate his painful right ankle. However, there is no objective medical evidence of impairment of function due to pain. Indeed, a review of the medical evidence shows few complaints of ankle pain. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. Thus, although not doubting that the veteran experiences ankle pain, this alone does not serve to allow for the assignment of additional disability in excess of the 10 percent which had already been assigned. Thus, assignment of additional disability based on DeLuca factors is not warranted. Extraschedular consideration Extraschedular consideration will be addressed at the end of this decision. 4. Entitlement to a compensable disability rating for service-connected bilateral hearing loss currently evaluated as noncompensably (0 percent) disabling effective June 30, 1999. Relevant law and regulation The relevant law and regulation of increased disability ratings - in general have been stated above and will not be repeated here. Assignment of a diagnostic code The veteran's bilateral hearing loss is rated zero percent disabling under Diagnostic Code 6100. As before, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts supra. 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 and any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio supra. The veteran's bilateral hearing loss is currently rated under 38 C.F.R. § 4.85, Diagnostic Code 6100 [hearing impairment] (2007). Diagnostic Code 6100 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 (bilateral hearing loss). 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 6100. Specific schedular criteria In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2007). Effective June 10, 1999, regulatory changes were made to the schedule for rating disabilities pertaining to diseases of the ear, including the criteria for evaluating hearing loss. The Board notes that the veteran's claim was received on June 30, 1999, after the amended regulations became effective. Thus, the veteran's claim will be evaluated in accordance with the amended regulations only. See VAOPGCPREC 3-2000. In this regard, the Board notes that the method described above using Tables VI and VII was not changed, and therefore has no effect on the veteran's claim. However, pertinent changes were made to 38 C.F.R. § 4.86, regarding cases of exceptional hearing loss. The provisions of 38 C.F.R. § 4.86(a) now provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 dB or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1000 hertz, and 70 dB or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Analysis Schedular rating The veteran seeks entitlement to a compensable disability rating for his service-connected bilateral hearing loss, which is currently evaluated as noncompensably disabling. As indicated above, the resolution of this issue involves determining the level of hearing acuity in each ear. The pertinent evidence consists of a VA audiological examination conducted in October 2006. The examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 10 25 LEFT 0 5 10 10 35 The average decibel loss for the right ear was 13 and the average decibel loss for the left ear was 15. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Applying these values to the rating criteria results in a numeric designation of level I in both ears. This results in a noncompensable or zero percent disability rating under Table VII. The October 2006 examination results did not demonstrate exceptional patterns of hearing impairment requiring consideration under subsection (a) of 38 C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz frequencies]. There is no competent medical evidence to the contrary. The Board observes that the veteran's statements to the effect that he is significantly impacted by his service-connected hearing loss are at odds with the medical evidence of the record. However, the veteran's credibility in this regard is moot because, as discussed in the law and regulations section above, the Board must adjudicate this claim by mechanically applying the schedular criteria. See Lendenmann, supra. In summary, based on the review of the entire record, the Board concludes that the criteria for an increased disability rating for the veteran's bilateral hearing loss have not been met. Fenderson consideration The veteran's initial claim of entitlement to service connection for hearing loss was granted, and a noncompensable disability rating was assigned effective June 30, 1999. 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 supra. In this case, the medical evidence of record appears to support the proposition that the veteran's service-connected hearing loss has not changed appreciably since he filed his claim. There appears to have been no medical findings and no other evidence which would allow for the assignment of an increased disability rating at any time during the period of time here under consideration. Based on the record, the Board finds that a noncompensable disability rating was properly assigned for the entire period from the date of service connection, June 30, 1999. Extraschedular consideration Extraschedular consideration will be addressed at the end of the decision. 5. Entitlement to a compensable disability rating for service-connected bilateral pes planus currently evaluated as noncompensably (0 percent) disabling effective November 18, 2002. Relevant law and regulations The relevant law and regulations for increased disability ratings - in general have been stated above and will not be repeated here. Specific rating criteria Bilateral acquired flatfoot is rated as follows: A noncompensable rating is assigned for mild symptoms relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate symptoms: weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. 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). Analysis Assignment of diagnostic code The veteran's acquired flatfoot disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 5276 [flatfoot, acquired]. Diagnostic Code 5276 is deemed by the Board to be the most appropriate because it pertains specifically to the primary diagnosed disability in the veteran's case (bilateral 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. Accordingly, the Board concludes that the veteran is appropriately rated under Diagnostic Code 5276. Schedular rating The veteran's service-connected pes planus disability is rated as noncompensable. The October 2006 examiner made the following findings: There is prominence of the first metatarsophalangeal joint bilaterally with a hallux pronator valgus bilaterally. These are mild. Subtalar neutral position forefoot is mild varus bilaterally. On palpation the plantar skin is soft with no evidence of calluses. There is marked plantar fascial pain distally rated 7/10 on the left and 10/10 on the right by the patient and facial evidence that this is painful. The articular stress of the midfoot and hind foot are not positive for pain. The examiner diagnosed the condition as "bilateral distal plantar fascitis." As noted above, in order to establish a compensable rating, the evidence must show moderate symptoms: weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. In this case, there is no evidence of weight-bearing line over or medial to great toe, nor is there evidence of inward bowing of the tendo achillis. There is, however, evidence of pain on manipulation due to bilateral distal plantar fascitis. The veteran testified that he wears orthotics, does not use special built-up shoes, that he experiences cramps about four times per week and that he experiences foot pain at the end of the day. See hearing transcript pages 30-32. Thus, it appears that orthotics do not relieve his foot pain. After review of the entire record, the Board finds that the criteria for a compensable rating have been met, and that a 10 percent disability rating is warranted. The Board has also considered whether the veteran is entitled a rating higher than 10 percent, but has determined that there is no evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, and no evidence of 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. For those reasons, a disability rating higher than a 10 percent disability rating is not warranted. DeLuca considerations The Board has considered whether an increased disability rating is warranted for the veteran's pes planus 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. The August 2007 examiner found that there was "no additional functional impairment due to pain, pain on repetitive use, fatigue, weakness, lack of endurance, or incoordination." The Board recognizes that the record indicates that the veteran stated that he occasionally experiences cramps and that he no longer runs because of his painful feet. Although not doubting that the veteran experiences foot pain, this alone does not serve to allow for the assignment of additional disability in excess of the 10 percent which has been assigned. Fenderson concerns The veteran's initial claim of entitlement to service connection for pes planus was granted, and a noncompensable disability rating was assigned effective November 18, 2002, the date of a VA examination diagnosing the condition. 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 supra. In this case, the medical evidence of record appears to support the proposition that the veteran's service-connected pes planus has not changed appreciably since he filed his claim. There appears to have been no medical findings and no other evidence which would allow for the assignment of an increased disability rating at any time during the period of time here under consideration. Based on the record, the Board finds that a noncompensable disability rating was properly assigned for the entire period from the date of service connection, November 18, 2002. Extraschedular consideration Extraschedular consideration will be addressed at the end of this decision. 6. Entitlement to a compensable disability rating for hemorrhoids currently evaluated as noncompensably (0 percent) disabling effective November 18, 2002. Relevant law and regulations The relevant law and regulations for increased ratings - in general have been stated above and will not be repeated here. Specific rating criteria A 10 percent rating is assigned for hemorrhoids, external or internal, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned for hemorrhoids, external or internal, with persistent bleeding and with secondary anemia, or with fissures. See 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). Analysis Assignment of diagnostic code The veteran's service-connected hemorrhoid disability is currently rated as noncompensable under 38 C.F.R. § 4.130, Diagnostic Code 7336 [Hemorrhoids, external or internal]. Diagnostic Code 7336 is deemed by the Board to be the most appropriate because it pertains specifically to the primary diagnosed disability in the veteran's case (hemorrhoids). 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 7336. Schedular rating The veteran's hemorrhoid disability is currently rated as noncompensable. As stated above, in order to establish an increased disability rating the evidence must demonstrate hemorrhoids, external or internal, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. An October 2006 VA examiner described the veteran's hemorrhoid condition as a two nontender small lumps in the rectum at 4 o'clock and 9 o'clock without bleeding. The veteran testified that his hemorrhoids are secondary to constipation, not thrombotic and that they bleed about once per month. The veteran stated that he wears a pad, presumably when they bleed. In view of the clinical medical evidence and the veteran's testimony, the Board finds that the criteria for a compensable rating are not met. An occurrence of one time per month is not frequent, the physician's exam does not indicate that the veteran's hemorrhoids are irreducible with excessive redundant tissue or are large or thrombotic. Thus, an increased disability rating is not warranted. Fenderson concerns The veteran's initial claim of entitlement to service connection for hemorrhoids was granted, and a noncompensable disability rating was assigned effective November 18, 2002, the date of a VA examination diagnosing the condition. 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 supra. In this case, the medical evidence of record appears to support the proposition that the veteran's service-connected hemorrhoid condition has not changed appreciably since he filed his claim. There appears to have been no medical findings and no other evidence which would allow for the assignment of an increased disability rating at any time during the period of time here under consideration. Based on the record, the Board finds that a noncompensable disability rating was properly assigned for the entire period from the date of service connection, November 18, 2002. Extraschedular concerns 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 the RO did not 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 for the veteran's service-connected disabilities. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date earlier than September 30, 1999, for entitlement to service connection for chronic cervical strain is denied. An increased disability evaluation of 10 percent is granted for service-connected residuals of right fibular fracture, subject to governing regulations concerning the payment of monetary benefits. Entitlement to a compensable disability rating for service- connected bilateral hearing loss is denied. An increased disability evaluation of 10 percent is granted for service-connected pes planus, subject to governing regulations concerning the payment of monetary benefits. Entitlement to a compensable disability rating for service- connected hemorrhoids is denied. REMAND For reasons explained immediately below, the Board believes that the claims for entitlement to an increased disability rating for chronic cervical strain and entitlement to service connection for GERD must be remanded for additional evidentiary development Reasons for remand Chronic cervical strain The medical evidence of record indicates that the veteran's cervical strain disability include radicular symptoms. The October 2006 VA examiner diagnosed the veteran's condition as cervical arthritis with stenosis, but also commented that " . . . complaints of radicular symptoms with numbness in the hands could be explained by the radiographs; however, no objective evaluation can be made without resorting to speculation without EMG and possibly SSEP evaluation." The veteran testified at the August 2007 hearing that his arthritis causes his hands and arms to be numb. See hearing transcript at page 7. The Board finds that the medical record does not adequately describe the veteran's current condition. Such a description is necessary for proper and fair adjudication of the veteran's claim for an increased disability rating. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. Thus, VBA should arrange for a complete examination of the veteran's cervical strain and arthritis to include any neural concerns. GERD The veteran testified that he had continuity of symptoms from service to the present date of digestive system problems. The veteran, a physician's assistant, further testified that his condition has been variously described as dyspepsia, gastritis, GERD, and duodenitis. See hearing transcript at page 42. Because of the nature of his active duty service as a para-rescuer, the veteran self-medicated this condition during the course of his active duty in order to avoid a profile disabling him from continuing in his duties. See January 2006 statement. In order to establish service connection for GERD, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, there is evidence of a November 2004 diagnosis of GERD, and there is evidence of an in-service incurrence of symptoms that have continued to the present time. The nexus issue, in its present state, raises questions that must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the Board remands the claim for further development to determine whether the veteran's current GERD disorder was incurred or aggravated during active duty; specifically whether the symptomatology the veteran currently experiences is related to the symptomatology he experienced during active duty. Accordingly, the case is REMANDED for the following action: 1. VBA should arrange for a physician to review the veteran's claims folder, specifically including this Remand. The examiner should perform, to the extent practicable, physical examination and/or diagnostic testing of the veteran to determine the full nature and extent of the veteran's service-connected chronic cervical strain disability, to include whether the veteran's condition involves radicular symptoms. If it is determined that radicular symptoms exist, the examiner should describe the extent and nature of those symptoms and how they impact on the veteran's range of motion, 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 reviewing physician's opinion and report of the examination and test results should be associated with the veteran's VA claims folder. 2. VBA should arrange for a physician to review the veteran's claims folder, specifically including this Remand. The examiner should express an opinion whether it is as likely as not that the veteran's currently diagnosed GERD disability was incurred or aggravated during active duty. In particular, the reviewing physician should indicate, to the extent practicable, whether or not the symptomatology experienced by veteran during his military service is related to the symptomatology he currently experiences. If the reviewing physician deems it to be necessary, physical examination and/or diagnostic testing of the veteran may be undertaken. The reviewing physician's opinion and report of any examination should be associated with the veteran's VA claims folder. 3. Following the completion of the foregoing, VBA should readjudicate the veteran's claims. If the claims are denied, in whole or in part, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs