Citation Nr: 1307948 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-09 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for heart disease with hypertension and a history of myocardial infarction, including secondary to service-connected hiatal hernia. 2. Entitlement to service connection for bronchitis. 3. Entitlement to service connection for sinusitis. 4. Entitlement to an evaluation higher than 10 percent for mechanical low back pain (exclusive of a temporary total rating from July 21, 2008 to August 31, 2008). 5. Entitlement to an initial compensable evaluation for left ankle degenerative joint disease. 6. Entitlement to an evaluation higher than 10 percent for bilateral pes planus with calcaneal spurs. 7. Entitlement to a compensable evaluation for a hiatal hernia. 8. Entitlement to a compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The September 2007 RO rating action, in pertinent part, denied service connection for heart disease, along with increased ratings for bilateral pes planus and hiatal hernia. That decision further increased to 10 percent the evaluation for mechanical low back pain, effective August 23, 2006; and granted service connection for left ankle degenerative joint disease, from which the Veteran has appealed the initial noncompensable disability evaluation. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Thereafter, a September 2009 rating action denied service connection for bronchitis and sinusitis, which the Veteran also appealed therefrom. The Board at this time restates the issue of service connection for heart disease, as to include secondary to service-connected hiatal hernia, consistent with the Veteran's contentions regarding etiology of a heart condition. This revised theory of entitlement will receive direct RO consideration upon remand. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the Agency of Original Jurisdiction (AOJ), the Board must consider whether the veteran has been prejudiced). During pendency of the appeal, the Veteran provided testimony at a January 2012 hearing before a Decision Review Officer (DRO) at the RO, a transcript of which is of record. Presently, the Board decides the Veteran's increased rating claims, with the exception of that for left ear hearing loss. The remaining issues 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's lower back disorder has not involved forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. Since the August 23, 2006 effective date of service connection, the Veteran's left ankle degenerative joint disease has not involved limitation of motion, or other compensable symptomatology. 3. Bilateral pes planus is not severe in degree, nor is there an associated moderately severe left foot injury. 4. The Veteran's hiatal hernia does not involve at least two of the characteristic underlying symptoms of dysphagia, pyrosis or regurgitation, and most recently, was well-controlled on medication. CONCLUSIONS OF LAW 1. The criteria are not met for an evaluation higher than 10 percent for mechanical low back pain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5237 (2012). 2. The criteria are not met for an initial compensable evaluation for left ankle degenerative joint disease. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5271 (2012). 3. The criteria are not met for an evaluation higher than 10 percent for bilateral pes planus with calcaneal spurs. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Codes 5276, 5284 (2012). 4. The criteria are not met for a compensable evaluation for a hiatal hernia. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). In regard to the claim on appeal for higher initial evaluation for service-connected left ankle degenerative joint disease, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claim for service connection for left ankle degenerative joint disease has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. The RO has informed the Veteran of what evidence would substantiate his remaining claims for increased rating through VCAA correspondence dated from October 2006 that notified him as to each element of satisfactory notice set forth under the Pelegrini II decision. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, including that VA would undertake reasonable measures to assist in obtaining further VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the VCAA notice correspondence was issued prior to the September 2007 RO rating decision adjudicating the increased rating claims being decided (including granting service connection with the initial noncompensable evaluation for left ankle disability), and therefore met the criteria for timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran through obtaining private treatment records, and records of post-service treatment at military medical facilities. The Veteran has also undergone several VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In furtherance of his claims, the Veteran has provided private treatment records, personal statements. He testified during a DRO hearing. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Meanwhile, regarding the claim for increased initial evaluation for left ankle degenerative joint disease, where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the U.S. Court of Appeals for Veterans Claims (Court) recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate "staged" ratings can be assigned for separate periods of time based on the facts found retroactively from the original effective date of service connection. See Fenderson, supra, at 125-26. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. A. Mechanical Low Back Pain The condition of mechanical low back pain is evaluated under provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbosacral strain. A noncompensable evaluation originally was in effect, after which the RO increased the assigned evaluation to 10 percent effective August 23, 2006, and this has remained the assigned evaluation exclusive of a temporary total rating (for surgical convalescence under 38 C.F.R. § 4.30) from July 21, 2008 through August 31, 2008.) The Veteran filed his increased rating claim in July 2006. (The Board notes that the RO assigned an effective date of increase to 10 percent in August 2006 based on a slightly erroneous recognized date of claim, one month too late, but that this determination minimally affects overall benefits entitlement. As indicated below, in the Board's view it does not appear to require immediate correction inasmuch as the objective requirements for a 10 percent rating do not appear to have been met at that time, as a matter of strict application of the rating criteria.) Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The Veteran underwent a VA general medical examination in June 2007. He then described intermittent pain in the back with occasional numbness in the left hip and left leg. Pain was precipitated by prolonged walking or standing, and being in one position too long. It was alleviated by pain, medication, rest and change in position. Objectively, thoracolumbar spine range of motion was forward flexion to 90 degrees, extension to 25 degrees, right and lateral flexion to 25 degrees each, and right and left lateral rotation 30 degrees each, all with pain at the extremes of motion. There was no change in pain or range of motion upon repeated and resisted testing of the spine and no additional limitation was noted. There was no spasm, guarding or tenderness noted, with preserved spinal contour, and normal gait. There was no muscle spasm or guarding noted. There was no postural abnormality, fixed deformity (ankylosis), or abnormality of musculature of the back. Meanwhile, neurological evaluation was generally normal, with motor strength 5/5 bilaterally in both upper and lower extremities. Deep tendon reflexes were 2+/4 bilaterally, with no abnormal reflexes noted. The diagnosis was, in part, low back strain. Thereafter, at a private facility in July 2008, the Veteran underwent a left L5 hemilaminectomy with L5-S1 partial diskectomy, for the preoperative diagnosis of lumbar radiculopathy. It was indicated that the Veteran previously had severe left lower extremity radicular pain in an S1 distribution, unresponsive to conservative intervention. (As indicated, following this surgical intervention a temporary total rating was assigned up until August 31, 2008.) The Veteran underwent VA re-examination of the spine in January 2009. He now described back pain in the lumbar area, on a daily basis, with no radiation. He described the back pain as a dull ache. He usually took Vicodin one to two times per week with good relief, without significant side effects. He did not use any assistive devices. As to functional assessment, the Veteran was able to operate a motor vehicle, dress himself, and attend to the needs of nature. He had returned to his job following surgery, and had not had to take any more sick leave because of back pain. On physical examination, there was a well-healed post-surgical scar in the lumbar area. There was normal posture and gait, normal curvature of the spine, normal symmetry and appearance, and normal symmetry and rhythm of spinal motion. Range of motion consisted of forward flexion to 80 degrees with mild discomfort; extension to 30 degrees; lateral flexion to 30 degrees bilaterally; and lateral rotation 30 degrees bilaterally. No additional limitation of motion was noted with three repetitions of movement during the physical examination that was related to pain, fatigue, incoordination, weakness or lack of endurance. There were no postural abnormalities, signs of ankylosis, or abnormality of musculature of the back. Neurological evaluation was normal. The diagnosis was lumbosacral strain with degenerative joint disease of the lumbar spine. On VA general medical examination of February 2012, the diagnosis given was degenerative disc disease S1 with herniated nucleus pulposis, status post laminectomy; and spinal stenosis (neurogenic tingling on thighs after standing up long), mild, brief, alleviated by sitting or bending over. It was indicated that after a 2008 surgery the Veteran did well for a long time, but in late-2011 his back began to hurt again at its middle, with radiation as tingling to the lateral aspect of the legs. Generally, his back hurt every morning, improving once he was up and around. It also hurt with his daily standing up at his job. Range of motion findings consisted of forward flexion to 90 degrees or greater, extension to 30 degrees or greater, right and left lateral flexion to 30 degrees, and right and left lateral rotation 30 degrees, all with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions, and with no additional limitation of motion. There was no localized tenderness or pain to palpation for the joints and/or soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal. Sensory examination in the lower extremities was normal. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no other related neurologic abnormalities or findings. The Veteran was noted to have had IVDS of the thoracolumbar spine, but without any incapacitating episodes over the previous 12 months. The Veteran did not use any assistive devices. There was some impact of a back condition upon ability to work, based on having endured pain during working hours, with need to take medication for back pain. Having evaluated the merits of this claim based on pertinent rating criteria, the continuation of the existing 10 percent evaluation is deemed warranted. The standard to establish the next higher 20 percent rating pursuant to the applicable general rating formula that corresponds to Diagnostic Code 5237 consists of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a. None of these requisite conditions manifest. The most pronounced lack of range of motion of the thoracolumbar spine observed, on VA examination of January 2009, was forward flexion to 80 degrees. There was no additional lost mobility due to repetitive use, painful motion, fatigue, incoordination, or other forms of recognized functional loss. See Deluca, supra; 38 C.F.R. §§ 4.45, 4.59. The requirements to warrant a minimum 10 percent evaluation based on limited motion (forward flexion between 60 and 85 degrees) were not even met up until the January 2009 VA examination, and thus the RO appears to have technically awarded that 10 percent evaluation at an earlier point that strictly required (retroactively, to August 23, 2006) -- the Board states this not to call into question the existing rating, but rather, to point out that clearly no higher rating is warranted. The Veteran also has not met at any point the remaining conditions for increased evaluation under Diagnostic Code 5237, those of combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding with severe attendant circumstances. Whereas the most recent VA examination of February 2012 also indicated an applicable diagnosis of IVDS, the examiner likewise found no indication of any incapacitating episodes (defined under applicable criteria at 38 C.F.R. § 4.71a, Diagnostic Code 5243 as requiring physician-prescribed bedrest). The criteria for IVDS thus do not provide an alternative basis for disability evaluation. There is no indication otherwise of compensable neurological pathology secondary to the service-connected low back disability. In light of these findings, a 10 percent rating for mechanical back pain remains the proper evaluation under the VA rating schedule. B. Left Ankle Degenerative Joint Disease The Veteran is in receipt of a 10 percent rating for service-connected left ankle degenerative joint disease, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limited motion of the ankle. Under that diagnostic code, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. The terms "moderate" and "marked" among other components of the rating criteria are not expressly defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Normal range of motion for the ankle joint is defined as dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Upon the June 2007 VA general examination, the Veteran described intermittent pain at level 7/10 due to prolonged walking and standing. He had no relevant surgical history. He did not use a brace or a cane. Objectively, on range of motion testing, the Veteran demonstrated left ankle dorsiflexion to 20 degrees, plantar flexion to 45 degrees, 30 degrees inversion, and 20 degrees eversion, all within the normal range. The diagnosis was left ankle degenerative joint disease, mild. On re-examination of February 2012, the Veteran was indicated to have had tendonitis. The Veteran complained of his ankle hurting at the end of a heavy working day, or during weather changes to cold. There was no swelling or locking or giving way. He reported flare-ups impacting ankle function, though he was able to continue usual activities of daily living and occupation, with no working days lost because of his ankle. Range of motion was plantar flexion to 45 degrees or greater, and plantar dorsiflexion to 20 degrees or greater, all with no objective evidence of painful motion. The Veteran had no further limitation of motion on repetitive-use testing three times. There was no localized tenderness or pain on palpation of the joints or soft tissue of either ankle. Muscle strength in the ankle was normal. There was no laxity compared with the right side. There was no ankylosis present. There was no sign of additional conditions, such as shin splints, stress fractures, Achilles tendonitis, os calcis or astragalus. No assistive devices were utilized. The Veteran's ankle condition was not considered to impact his ability to work. A prior x-ray of the left ankle showed calcaneal spurring, but otherwise no fracture or dislocation, and no soft tissue abnormality. Given the foregoing, the Board will continue the assignment of a noncompensable initial evaluation for left ankle degenerative joint disease. While the Veteran's competent report of left ankle joint pain is acknowledged, on objective VA examination the condition has essentially been asymptomatic. Twice, VA examination revealed fully normal range of motion. On examination in February 2012, muscle strength was normal, there was no joint laxity, and there were no additional conditions associated with left ankle pathology. Apart from showing calcaneal spurring, an x-ray study was generally normal. The applicable rating criteria, Diagnostic Code 5271, is premised on limitation of motion, and here mobility has been at normal levels. Nor is there indication of noncompensable level of limitation of motion, which along with the diagnosis of arthritis would otherwise substantiate a minimum 10 percent rating for degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Accordingly, a compensable evaluation under the rating schedule is not objectively warranted. C. Bilateral Pes Planus The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5276 pertain to the evaluation of pes planus. Under Diagnostic Code 5276, a noncompensable rating corresponds to mild pes planus, with symptoms relieved by built-up shoe or arch support. A 10 percent rating is assigned for moderate pes planus, with weight-bearing line over or medial to great toe. A 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral pes planus, with 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. The implementation of another diagnostic code is permitted if warranted under the circumstances of a particular case. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (an alternative diagnostic code than that applied by the RO may be appropriate under the circumstances, and where a claim is evaluated under this criteria, the VA adjudicator should explain the basis for this determination). See also Butts v. Brown, 5 Vet. App. 532, 538 (1993). Also potentially applicable is Diagnostic Code 5284 for injuries of the foot, which provides that a 10 percent rating is assigned for moderate foot injuries, 20 percent rating for moderately severe foot injuries, and 30 percent rating for a foot injury that is productive of severe disability. A note to the rating criteria states that with actual loss of use of a foot, a 40 percent rating is warranted. On VA examination of June 2007, the Veteran described pain on weight bearing, level from 2 to 7/10, depending on weather (cold) and prolonged walking or standing. He had not undergone relevant surgery, and did not wear shoe inserts. Objectively, there were no relevant foot problems observed. The diagnosis was bilateral pes planus with calcaneal spurs. Upon re-examination in February 2012, the overall diagnosis given was bilateral plantar fasciitis, left foot neuroma and bilateral heel spurs. The Veteran now described feet pain beginning at the work day, worsening due to constant standing up at work. He underwent foot surgery for left neuroma in 2008, and again in 2010, getting better after each surgery. The neuroma pain had come back over one and one half year. Objectively, there was pain on use of both feet, accentuated on use. There was no pain on manipulation of the feet, indication of swelling on use, characteristic calluses, symptoms relieved by arch supports (or orthotics), or extreme tenderness of plantar surface of one or both feet. The Veteran did have decreased longitudinal arch height on weight-bearing, on both sides. There was no objective evidence of marked deformity of the foot, marked pronation of the foot, weight-bearing line falling over or medial to the great toe, lower extremity deformity other than pes planus causing alteration of the weight bearing line, "inward" bowing of the Achilles' tendon, or marked inward displacement and severe spasm of the Achilles' tendon on manipulation. There were post-surgical scars related to prior treatment, but none of the scars were painful and/or unstable, or had a total surface area greater than 39 square cm. The Veteran was also a diabetic, but he denied neurologic foot complaints. The Veteran did not use any assistive devices (i.e., other than corrective shoes or orthotic inserts) as a normal mode of locomotion. The VA examiner indicated in the negative as to whether there was functional impairment of an extremity such that no effective function remained. The Veteran's condition impacted his ability to work though mild to moderate distress at the end of a working day, from standing up and moving around all day. Further commented was that the Veteran had mild low arches but not full flat foot, and no hallux valgus either. The only tenderness was over the neuroma at the third interdigital space, left foot status-post surgery twice (with a small non-tender non-painful scar over the dorsal aspect between the third and fourth metatarsals distally). There was no pain or tenderness of the ankles, arches or heels. The Board does not ascertain a basis in the evidence upon which to assign in excess of 10 percent evaluation for bilateral pes planus, with calcaneal spurs. Considering Diagnostic Code 5276 for pes planus, the Veteran would have to demonstrate for a 30 percent evaluation severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. Here, these conditions have not been met, and on VA examination of February 2012 it was confirmed that the level of loss of normal arch support was mild in degree. Otherwise, there was no sign of marked deformity, accentuated pain on manipulation, swelling on use, or characteristic callosities. The Veteran was considered not to have "full flat foot." Nor for that matter is there indication of foot injury on the left side approximating moderately severe level of injury, as to warrant application of a 20 percent evaluation under Diagnostic Code 5284. Apart from an indication of neuroma on the left side, and mild arch difficulties, there is no other symptomatology or structural concern regarding the left foot, and thus, no reasonable basis upon which to conclude that the Veteran experiences moderately severe level of disability. It follows that no higher than a 10 percent rating is warranted for foot disability evaluated as bilateral pes planus. D. Hiatal Hernia Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent rating but of lesser severity. A 30 percent rating is assigned when there is a hiatal hernia characterized by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health. A maximum rating of 60 percent is warranted when the disorder is productive of symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. On VA examination of June 2007, the Veteran reported having had heartburn about five to six times yearly. He had no vomiting, hematochezia or melena, and weight gain had been stable. No objective findings were then obtained. The diagnosis given was hiatal hernia with gastroesophageal reflux disease (GERD). The Veteran testified during his January 2012 DRO hearing that the symptoms attributed to his hiatal hernia included "a little bit of chest pain every now and then," along with "trouble swallowing and eating food or drinking liquids." He further indicated having taken Nexium for acid reflux to help control the hiatal hernia. During the February 2012 VA examination, the Veteran was indicated to have had the conditions of hiatal hernia, and GERD. He subjectively reported that he had had no reflux for years since on Nexium, and his only problem was that very rarely the food would have some difficulty going down, and he would have to push it by drinking fluids. There were no other complaints. The Veteran had used Nexium, with good response, for many years. There generally had been no GERD symptoms for many years. The one symptoms of a gastric condition the Veteran was noted to have consisted of dysphagia. Otherwise, there were no other pertinent physical findings, complications, signs or symptoms. There was no impact upon ability to work. The present claim for a compensable evaluation for hiatal hernia must be denied. Given the factual background as presented, the Veteran has not specifically manifested more than one of the prerequisite symptoms for a 10 percent rating under Diagnostic Code 7346 at any point. On the June 2007 VA examination he identified "heartburn," thereby suggesting pyrosis, though no other symptom was present. Then on VA examination of February 2012, there was dysphagia, with other symptoms fortunately being well-controlled with Nexium for many years. There were no other pertinent physical findings, complications, signs or symptoms. Thus, on direct application of the rating criteria, the provisions for assignment of a compensable evaluation for hiatal hernia have not been met. E. Conclusion Apart from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's service-connected disorders under evaluation present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms of mechanical low back pain as presented, including from his descriptions upon VA examination and on other occasions. A similar conclusion is warranted with regard to the service-connected left ankle disorder. Moreover, the rating criteria for pes planus encompasses the most pronounced symptoms of that disorder, and the Veteran does not have symptoms outside this rubric, nor does he have indication of a moderately severe foot injury. The criteria for hiatal hernia likewise encompasses the major symptoms of that condition, and again, the Veteran does not experience manifestations of hiatal hernia beyond those parameters. Thus, the Board cannot conclude that the Veteran's conditions are consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. On this subject, however, the Veteran has not shown that his service-connected disability under evaluation has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular ratings. Fortunately, he remains employed full-time. Moreover, the Veteran's service-connected conditions also have not recently necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claims for higher ratings for mechanical low back pain, left ankle degenerative joint disease, bilateral pes planus, and hiatal hernia. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claims under review. The preponderance of the evidence is against the claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An evaluation higher than 10 percent for mechanical low back pain (exclusive of a temporary total rating from July 21, 2008 to August 31, 2008) is denied. An initial compensable evaluation for left ankle degenerative joint disease is denied. An evaluation higher than 10 percent for bilateral pes planus with calcaneal spurs is denied. A compensable evaluation for a hiatal hernia is denied. REMAND The remaining claims on appeal require further development, prior to issuance of a final decision. Upon his March 2009 formal Substantive Appeal (VA Form 9) the Veteran contended that his claimed heart condition was "aggravated by location of hiatal hernia when it flares... press[ing] on heart caus[ing] possible arrhythmia." The Board has accordingly recharacterized the claim for service connection for a heart condition in light of this theory of entitlement of secondary service connection. The Veteran throughout service on various occasions indicated episodes of chest pain, most notably in February 1989. Since then, the Veteran post-service has developed coronary artery disease and hypertension, and had a myocardial infarction in 1999. The Board will request a VA Compensation and Pension examination to determine whether there is any causal connection with the Veteran's military service, or as alleged, his service-connected gastrointestinal disability. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Moreover, the post-service medical history reveals both treatment for claimed bronchitis and sinusitis, the balance of this having occurred in the late-1990s through early-2000s, a few years prior to filing of the Veteran's claim. Meanwhile, service treatment records (STRs) indicate the Veteran was noted to have had mild rhinitis, with boggy mucosa, as early as November 1973. On a January 1990 review examination, the Veteran explained that he had asthma as a child, with the last attack long before service, though he had experienced in-service symptoms of shortness of breath and chest pain. Also indicated was twice having pneumonia in service. Thereafter, the Veteran was evaluated numerous times for sinusitis in 1990 and 1991, as continuously indicated in clinical records. The report of the Veteran's March 1992 separation examination indicated in part, a history of sinusitis, and hay fever during service. Also noted was prior asthma and shortness of breath. The Veteran subjectively reported being always tired, and short of breath with constant chest pressure. Whereas the Veteran underwent relevant VA examination in June 2009 of the nose and sinus regions, with no relevant current diagnosis made (other than allergic rhinitis), unfortunately the claims folder was not available for the examiner's review, which would have revealed the complete clinical history. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (fulfillment of the statutory 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.) Therefore, a new examination is warranted that takes into account the pertinent medical background. In addition, with regard to service-connected left ear hearing loss, whereas the Veteran underwent a relatively recent February 2012 VA examination, the examination report does not clarify whether there was any particularly substantial, undue or unusual impact upon functional capacity of left ear hearing loss. See e.g., Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007) (in view of potential entitlement to extraschedular rating the examiner should describe effect of hearing loss on occupational functioning and daily activities). Further examination is therefore warranted. Accordingly, these claims are REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA cardiology examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. It is requested that the VA examiner indicate all present cardiovascular conditions which the Veteran manifests. Please then indicate whether the diagnosed condition(s) was/were directly incurred in the Veteran's military service. Please further indicate whether each of the diagnosed condition(s) are secondarily related to service-connected hiatal hernia. The examiner should consider whether a hiatal hernia was the initial cause of the diagnosed condition(s), as well as whether a hiatal hernia has chronically aggravated the diagnosed condition(s). (Chronic aggravation for this purpose is defined as a permanent worsening of the nonservice-connected disability not otherwise attributable to the natural disease process). If an opinion cannot be rendered without resorting to pure speculation, please explain why this is not possible. 2. Then schedule the Veteran for a VA nose, sinus and larynx examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. It is requested that the VA examiner indicate whether the Veteran currently has sinusitis and/or bronchitis. Provided one or both are diagnosed, please then indicate whether the diagnosed condition(s) was/were directly incurred in the Veteran's military service, taking into account the objective symptoms noted therein. If an opinion cannot be rendered without resorting to pure speculation, please explain why this is not possible. 3. Then schedule the Veteran for a VA audiological examination (with audiometric studies and Maryland CNC speech discrimination testing) to ascertain the current severity of his left ear hearing loss. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. The VA examiner should indicate all present symptoms and manifestations attributable to left ear hearing loss in accordance with the applicable rating criteria found at 38 C.F.R. § 4.85, Diagnostic Code 6100. The examiner should further specifically comment on the nature and extent of any impairment of social and/or occupational functioning due to hearing loss that would be expected given the degree of severity of the disability found. 4. The RO/AMC should then review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO/AMC should readjudicate the claims on appeal, based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs