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