Citation Nr: 1319141 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 05-34 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to an increased disability evaluation for bilateral plantar fasciitis evaluated as 10 percent disabling prior to February 8, 2012. 3. Entitlement to an increased disability evaluation for bilateral pes planus with plantar fasciitis effective February 8, 2012, currently evaluated as 30 percent disabling. 4. Entitlement to an increased disability evaluation for a left ankle strain, currently evaluated as 10 percent disabling. 5. Entitlement to an increased disability evaluation for a right ankle strain, currently evaluated as 10 percent disabling. 6. Entitlement to an increased disability evaluation for gastroesophageal reflux disease, currently evaluated as 10 percent disabling. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1996 to January 1997, and from June 2006 to September 2006. He also had periods of active duty for training and inactive duty training as a member of the reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 and August 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Muskogee, Oklahoma. The issues on appeal were previously remanded by the Board in January 2012. In its January 2012 remand, the Board requested the agency of original jurisdiction (AOJ) to obtain additional VA treatment records and afford the Veteran several VA medical examinations. The AOJ received additional VA treatment records from the VA medical centers in Oklahoma City and San Diego. Additionally, the Veteran was afforded VA orthopedic, gastrointestinal, and sleep examinations in December 2012. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Also within its January 2012 action, the Board granted the Veteran service connection for osteoarthritic changes of the thoracolumbar spine. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In a January 2013 rating decision, the RO granted the Veteran an increased rating, to 30 percent, for his bilateral pes planus with plantar fasciitis. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased disability rating remains in appellate status. Additionally, because this award was made effective only from February 8, 2012, subsequent to the date of the claim on appeal, the issue on appeal has been recharacterized as noted above into separate issues. A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. The issues of entitlement to service connection for a sleep disorder and for a TDIU 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. Prior to February 8, 2012, the Veteran's bilateral plantar fasciitis resulted in pain and tenderness of each foot, accentuated with use, without evidence of marked pronation or inward displacement, extreme tenderness, or severe spasm of the Achilles tendons, not relieved by orthopedic shoes or appliances. 2. Effective February 8, 2012, the Veteran's bilateral pes planus with plantar fasciitis results in calluses, pain and pain on use of each foot, without evidence of marked pronation or inward displacement, extreme tenderness, or severe spasm of the Achilles tendons, not relieved by orthopedic shoes or appliances. 3. The Veteran's left ankle strain results in no more than slight limitation of motion, and he retains the ability to stand and ambulate without assistance devices. 4. The Veteran's right ankle strain results in no more than slight limitation of motion, and he retains the ability to stand and ambulate without assistance devices. 5. The Veteran's gastroesophageal reflux disease is characterized by pyrosis, epigastric pain, reflux, and regurgitation, but without any periods of anemia, malnourishment, or other sights of considerable impairment of overall health. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 30 percent and no higher prior to February 8, 2012, for bilateral plantar fasciitis have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.20, 4.40, 4.45, 4.46, 4.71a, Diagnostic Codes 5276-84 (2012). 2. The criteria for entitlement to a disability rating in excess of 30 percent effective February 8, 2012, for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.20, 4.40, 4.45, 4.46, 4.71a, Diagnostic Codes 5276-84 (2012). 3. The criteria for entitlement to a disability rating in excess of 10 percent for a left ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.20, 4.40, 4.45, 4.46, 4.71a, Diagnostic Codes 5270-74 (2012). 4. The criteria for entitlement to a disability rating in excess of 10 percent for a right ankle strain have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.20, 4.40, 4.45, 4.46, 4.71a, Diagnostic Codes 5270-74 (2012). 5. The criteria for entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes 7301-54 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In January 2005, April 2007, January 2008, March 2008, June 2009, and January 2012 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the April 2007 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the adverse determinations on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded VA medical examinations in January 2005, July 2007, June 2009, and February 2012. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. In October 2011, the Veteran was afforded the opportunity to testify via video before a Veterans Law Judge. The Court has held that pursuant to 38 C.F.R. § 3.103, a VA official conducting a hearing must provide notice of the issues in the case and the evidence that is referenced in the testimony that has not been submitted. Bryant v. Shinseki, 23 Vet. App. 488, 492-96 (2010). During the hearing in the present case, the Veterans Law Judge clarified the issues on appeal and asked about the possibility of additional or forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Fenderson v. West, 12 Vet. App. 119 (1998). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2012). When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where, however, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Bilateral Pes Planus with Plantar Fascitis The Veteran seeks an increased rating for his bilateral pes planus with plantar fasciitis. He asserts this disorder causes him pain and impairs his mobility. As noted above, he has been awarded an increased rating, to 30 percent, for this disability, effective February 8, 2012. Prior to that date, he was in receipt of a single 10 percent disability rating for this disability. Each of these periods will be considered in turn. The Veteran's bilateral pes planus with plantar fasciitis has been granted service connection under Diagnostic Code 5276, for flatfoot, acquired. This code provides a 50 percent rating for pronounced bilateral acquired pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. A 30 percent rating is assigned for severe bilateral pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 10 percent rating is warranted for moderate pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo achillis and pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). The Board also notes that several diagnostic criteria exist for the evaluation of disabilities of the feet. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-84. Diagnostic Code 5284, for other foot injuries, provides a 10 percent rating for impairment of moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Upon receipt of his claim, the Veteran was afforded a VA examination in January 2005. His reported symptoms included bilateral foot pain, stiffness, swelling, and fatigue. He reported that his symptoms worsened with use, and caused him to miss approximately two days per month from work. Corrective shoes did not ease his symptoms. On objective evaluation, the Veteran had a normal posture, but his gait was slow and stiff-legged. A leg length discrepancy of 1 cm favoring the left leg was present. He did not require an assistance device for ambulation. No signs of abnormal weightbearing were present for the feet. The feet were tender on examination, but pes planus was not present for either foot. The Veteran stated he could not walk more than 30-45 minutes without rest, and standing was limited to 60 minutes. X-rays of the feet were within normal limits, without any abnormalities identified. Bilateral plantar fasciitis was confirmed. A February 2005 private podiatry assessment was received from D.C.C., D.P.M. The Veteran complained of continued bilateral foot pain. On objective evaluation, he had pain to palpation along the plantar fascia bilaterally. Varus in the forefoot was observed bilaterally, and collapse of the medial column was present on standing. X-rays were negative for heel spurs, but did indicate some spurring along the fifth metatarsal. Pedal pulses were within normal limits. Reflexes at the patella and Achilles were +2/4 bilaterally, and sensation was intact. The assessment was of plantar fasciitis bilaterally, and orthotic devices for the Veteran's shoes were recommended. Another VA examination of the feet was afforded the Veteran in July 2007. He reported constant pain of both feet. His pain radiated upward into his ankles and calves. His pain was approximately 5/10. He denied any history of surgery or hospitalization due to his plantar fasciitis. His pain impaired prolonged walking and standing. On physical evaluation, his leg length was equal bilaterally. Posture and gait were within normal limits. Dorsiflexion was to 15 degrees bilaterally at the ankles, with pain reported at 15 degrees, and plantar flexion was to 30 degrees bilaterally, with pain reported at 30 degrees. Repetitive motion did not result in additional limitation of motion. Both feet were painful on motion and tender to palpation, but were negative for edema, abnormal circulation, weakness, or atrophy. Pes planus and pes clavus were both absent bilaterally. The Veteran's feet were also negative for hammertoes, Morton's metatarsalgia, hallux valgus, or hallux rigidus. He stated he could stand for approximately 15-30 minutes, and could walk up to a quarter-mile. He used orthotics, but did not use corrective shoes, shoe inserts, arch supports, or other orthopedic aids. On X-ray, small bilateral posterior heel spurs were present bilaterally; otherwise, the X-rays were within normal limits. The examiner stated the Veteran's bilateral plantar fasciitis had progressed to bilateral plantar fasciitis with bilateral ankle strain and bilateral posterior heel spurs. Separate ratings for left and right ankle strains have been assigned and the claims for increased ratings for these disabilities are addressed below. The Veteran next underwent VA examination of his feet in June 2009. Constant bilateral pain, radiating into his ankles, was reported. He rated his pain as 6/10. Other symptoms included weakness, stiffness, swelling, and fatigue. He denied any surgery of either foot. He used orthotic insoles for his feet, without relief. On objective evaluation, gait and posture were within normal limits. The feet were without evidence of abnormal weightbearing, breakdown, callosities, or unusual shoe wear. The Veteran did not use any assistance devices for ambulation. Range of motion of the ankles included dorsiflexion to 15 degrees bilaterally, with pain reported at 15 degrees, and 35 degrees plantar flexion bilaterally, with pain reported at 35 degrees. Pain was reported with repetitive motion, but repetitive motion did not result in additional limitation of motion. Both feet were painful on motion and slightly tender to palpation, but were negative for edema, abnormal circulation, weakness, heat, redness, instability, or atrophy. Motion in the metatarsal phalangeal joint of each foot was active. The Achilles tendons were in normal alignment bilaterally with weightbearing and nonweightbearing. The Veteran's feet were without Morton's metatarsalgia, hallux rigidus, or hallux valgus. X-rays of the feet indicated hammertoe deformities of the fourth and fifth digits of each foot. The final impression was of bilateral plantar fasciitis with bilateral chronic ankle strains and bilateral hammertoe deformities of digits 4-5. Most recently, the Veteran was afforded a VA orthopedic examination of his feet and ankles in February 2012. He continued to report bilateral foot pain, especially with use. He took medication for his foot pain, which was most prominent in his heels and bilateral longitudinal arches. His foot pain was generally 3/10 in intensity. He reported he could only stand for 10-15 minutes or walk for one to one and a half blocks before his foot pain became severe. He stated he was prescribed orthotics, which did not help, but was experiencing some relief with "z-coil" shoes. He used no other assistance devices or aids to mobility, and denied any surgery involving his feet. On physical evaluation, the Veteran's feet were without Morton's neuroma, metatarsalgia, pes clavus, malunion or nonunion of the tarsal or metatarsal bones, hallux rigidus, hammer toes, or hallux valgus. Pain was reported with manipulation of the feet and palpation of the soles of the feet. Calluses were also present on both feet, but swelling was absent. Longitudinal arch height decreased with weight-bearing, but no marked deformity of either foot was present. No bowing or marked inward displacement of either Achilles tendon was observed, and neither Achilles tendon displayed severe spasm on manipulation. X-rays confirmed degenerative changes in both feet. The Veteran's ankles were also examined at this time. He reported ongoing bilateral ankle pain, 3/10 in intensity. His pain worsened with use. He denied any surgery on either ankle. He occasionally used braces on his ankles, but denied the use of any other assistance devices. On objective evaluation, pain was noted on palpation of both ankles. Range of motion testing yielded plantar flexion to 30 degrees bilaterally, with pain beginning at 30 degrees, and dorsiflexion to 15 degrees bilaterally, with pain beginning at 10 degrees on the right and 15 degrees on the left. Repetitive motion did not result in additional limitation of motion, although the Veteran did report an increase in his pain of both ankles with movement. Muscle strength was normal bilaterally on both plantar flexion and dorsiflexion. No laxity or instability was present in either joint, and both ankles were also negative for ankylosis, shin splints, stress fractures, malunion of the calcaneus or talus, or tendonitis or rupture of the Achilles tendons. No other pertinent physical findings involving the ankles were observed. X-rays of the ankles were negative for degenerative changes or any other abnormalities. His bilateral ankle pain prevented prolonged standing or ambulation, but did not prevent all forms of employment. The Veteran has also received VA outpatient treatment for his feet during the pendency of his appeal. He has consistently reported chronic bilateral foot and ankle pain, worsening with use. While he has been provided various treatment, including physical therapy, orthotic shoe inserts, and medication, these have provided minimal relief. He has not, however, required hospitalization or surgical treatment for his feet or ankles. Finally, the Veteran and his wife testified via video before a Veterans Law Judge in October 2011. He stated that his feet continued to cause him pain, especially with use. He used medication and shoe inserts for his feet, but these provided only limited relief. He also reported recurrent bilateral ankle pain, worsening with use. He occasionally wore an ankle brace, but this provided only minimal support. As noted above, the Veteran has been granted a staged rating for his bilateral foot disability, originally granted service connection as bilateral plantar fasciitis, and now characterized as bilateral pes planus with plantar fasciitis. Prior to February 8, 2012, he was in receipt of a single 10 percent rating for this bilateral disability; effective February 8, 2012, he was awarded a single 30 percent evaluation for this disability. Considering first the period prior to February 8, 2012, the Board finds a disability rating of 30 percent and no higher is warranted for this time period. The Board notes that the Veteran had chronic pain of his bilateral feet as the result of his bilateral plantar fasciitis, although he was able to ambulate on his own, without assistance devices such as a cane or walker. He did use shoe inserts for his symptoms, but these did not alleviate his pain, which he testified was accentuated with use. In light of 38 C.F.R. §§ 4.3 and 4.7, the Board finds that a disability rating of 30 percent a is warranted for the period prior to February 8, 2012. The Board does not find, however, that a disability rating in excess of 30 percent is warranted for this time period for his service-connected bilateral plantar fasciitis. Prior to February 2012, he had not displayed objective evidence of extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. VA examinations in 2007 and 2009 were absent evidence of abnormal weight bearing, accentuated pain on manipulation, or swelling on use. Overall, the Board finds the weight of the lay and medical evidence does not demonstrate pronounced impairment of either foot due to bilateral pes planus, for which a disability rating in excess of 30 percent would be warranted prior to February 8, 2012. The Board has also considered whether a higher evaluation is warranted under other diagnostic codes. See 38 C.F.R. § 4.20; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The record, however, contains no supporting objective evidence of the presence of unilateral or bilateral flat foot; claw foot (pes cavus); or malunion or nonunion of tarsal or metatarsal bones. Thus, Diagnostic Codes 5276, 5278, and 5283 are not for consideration. See 38 C.F.R. § 4.71a , Diagnostic Codes 5276, 5278, 5283. Evaluation of the Veteran's bilateral plantar fasciitis under other diagnostic criteria of the feet would also not result in a disability rating in excess of 30 percent prior to February 8, 2012. Prior to that date, the Veteran also did not display moderately severe impairment of either foot, for which a 20 percent disability rating would be warranted for each foot under Diagnostic Code 5284. Additionally, no examiner has stated the Veteran experienced additional limitation of motion or other impairment as the result of pain, pain on use, fatigability, incoordination, or weakness, such that an increased rating would be warranted on that basis. See DeLuca, 8 Vet. App. at 202. Considering next the period effective February 8, 2012, the Board finds the preponderance of the evidence to be against a disability rating in excess of 30 percent for this period. While the Board again notes that the Veteran has consistently reported chronic pain of his bilateral feet as the result of his bilateral pes planus with plantar fasciitis, he also remains able to ambulate on his own, without assistance devices such as a cane or walker. He does use shoe inserts, but has not required hospitalization or surgery for his bilateral foot disorders. He has also not displayed objective evidence of vascular changes, skin breakdown, hallux rigidus or valgus, hammer toes, or pes clavus. The 2012 VA examinations did not indicate evidence of abnormal weight bearing or swelling on use, although calluses were present on objective examination. Finally, the 2012 examination was negative for bowing, marked inward displacement, or severe spasm of either Achilles tendons. Overall, the Board finds the weight of the lay and medical evidence does not demonstrate pronounced impairment of either foot, for which a disability rating in excess of 30 percent would be warranted effective February 8, 2012. The Board has again also considered whether a higher evaluation is warranted under other diagnostic codes. See 38 C.F.R. § 4.20; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The record, however, contains no supporting objective evidence of the presence of unilateral or bilateral flat foot; claw foot (pes cavus); or malunion or nonunion of tarsal or metatarsal bones. Thus, Diagnostic Codes 5276, 5278, and 5283 are not for consideration. See 38 C.F.R. § 4.71a , Diagnostic Codes 5276, 5278, 5283. Evaluation of the Veteran's bilateral pes planus with plantar fasciitis under other diagnostic criteria of the feet would not result in a disability rating in excess of 30 percent effective February 8, 2012. The Veteran also has not displayed moderately severe impairment of either foot, for which a 20 percent disability rating would be warranted for each foot under Diagnostic Code 5284. Additionally, no examiner has stated the Veteran experiences additional limitation of motion or other impairment as the result of pain, pain on use, fatigability, incoordination, or weakness, such that an increased rating would be warranted on that basis. See DeLuca, 8 Vet. App. at 202. In conclusion, the evidence of record supports the assignment a 30 percent disability rating prior to February 8, 2012, for the Veteran's bilateral pes planus with plantar fasciitis. The preponderance of the evidence is against a disability rating in excess of 30 percent at any time during the appeals period for the Veteran's bilateral pes planus with plantar fasciitis. As a preponderance of the evidence is against the award of increased ratings, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Left and Right Ankle Strains The Veteran seeks disability ratings in excess of 10 percent each for his left and right ankle strains. He asserts that this disability results in persistent pain and limitation of motion of both ankle joints. The Veteran has been awarded separate 10 percent disability ratings under Diagnostic Code 5271, for limitation of motion of the ankle joint. Under this code, a 20 percent rating is warranted for marked limitation of motion, and a 10 percent rating is warranted for moderate limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Board notes that words such as "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. The physical and clinical findings regarding the Veteran's right and left ankles have already been noted above, and need not be repeated here. While the Veteran has been awarded separate compensable 10 percent disability ratings for his bilateral ankle strains, because these disabilities are similar in their clinical findings, discussion of them together is appropriate. After carefully reviewing the relevant evidence, the Board concludes that a disability rating for ankle strain of either ankle in excess of 10 percent each is not warranted, as the evidence shows no more than moderate limitation of motion for either ankle. The record reflects that the Veteran has exhibited plantar flexion of the ankles of no less than 30 degrees and dorsiflexion of no less than 15 degrees. He has no additional loss with repetitive motion, and he is able to walk unaided on flat surfaces. Moreover, there is no objective evidence of weakness or instability of either ankle. The Board finds that this level of disability is consistent with a 10 percent rating. Finally, as the Veteran has not displayed a level of impairment in excess of that noted above at any point during the pendency of this appeal, staged ratings are not warranted at the present time. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, the intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In the present case, however, review of the record does not indicate any additional limitation of motion with repetitive motion, or due to such factors as pain, pain on use, incoordination, fatigability, weakness, or instability. While recognizing that the Veteran has subjective complaints of pain, there is no clinical evidence indicating a finding of additional functional loss as a result thereof, beyond that which was objectively shown in the examinations. Therefore, the Board finds that an increased evaluation in consideration of DeLuca and applicable VA code provisions is not warranted. The Board has also considered entitlement to increased ratings under other diagnostic criteria for the ankle joint. Because, however, the Veteran has not undergone an astragalectomy, displayed malunion of the os calcis or astragalus, or exhibited ankylosis of either ankle joint, consideration under other diagnostic criteria is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74 (2012). In conclusion, the preponderance of the evidence is against disability ratings in excess of 10 percent each for the Veteran's bilateral ankle strains. As a preponderance of the evidence is against the award of increased ratings, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Gastroesophageal Reflux Disease The Veteran seeks a disability rating in excess of 10 percent for his gastroesophageal reflux disease. He asserts this disorder results in frequent heartburn, nausea, and other related gastrointestinal symptoms, and an increased rating is therefore warranted. The Veteran has been granted a 10 percent disability rating under Diagnostic Code 7346, analogous to hiatal hernia. When rating a condition not listed under the rating schedule, a closely related disease or injury may be used. 38 C.F.R. § 4.20. Diagnostic Code 7346 provides a 60 percent evaluation for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent evaluation is warranted when the evidence shows two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). Weight loss is a criterion for a disability rating higher than currently assigned for the Veteran's gastroesophageal reflux disease under Diagnostic Code 7346. For purposes of evaluating conditions in § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. See 38 C.F.R. § 4.112 (2012). The Rating Schedule states that there are diseases of the digestive system which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.113, 4.114 (2012). The Rating Schedule prohibits Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, from being combined with each other. The Rating Schedule provides that, for certain coexisting diseases that do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding, a single disability rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (2012). Upon receipt of his claim, the Veteran was afforded a VA examination in January 2005. His reported symptoms included frequent emesis, heartburn, reflux, regurgitation, epigastric pain, and black, tarry stools. He also reported significant weight gain over the past year. His symptoms occurred constantly, and were not relieved with medication. He missed approximately 15-20 days per year of work due to his gastroesophageal reflux disease. On objective evaluation, the Veteran was well-developed and in no acute distress. His abdomen was tender to palpation. The examiner noted no evidence of malnutrition. No other abnormality was identified, and his complete blood count was within normal limits. The prior diagnoses of gastroesophageal reflux disease were confirmed. The Veteran next underwent VA gastrointestinal examination in June 2009. He gave a history of gastrointestinal pain and nausea after eating. He also reported dysphagia, heartburn, reflux, regurgitation, vomiting, and black tarry stools. He denied any hematemesis. He described his symptoms as intermittent, occurring approximately three times per week, and stated he used medication. He was hospitalized on one occasion recently for stomach pain. On objective evaluation, he was well-nourished and in no acute distress. Physical evaluation of his abdomen was negative for striae of the abdominal wall, no distension, ostomy, tenderness, splenomegaly, ascites, liver enlargement, or aortic aneurysm. Complete blood count testing was within normal limits. The Veteran's gastrointestinal disability was not noted to involve anemia or malnutrition. Gastroesophageal reflux disease was confirmed. Most recently, the Veteran was afforded a VA gastrointestinal examination in February 2012. Reported symptoms included heartburn, reflux, regurgitation, nausea, vomiting, and substernal arm or shoulder pain. He was currently taking medication for his reflux. He was not experiencing esophageal stricture or spasm, or an acquired diverticulum of the esophagus. He also denied any surgery for his gastroesophageal reflux disease. On objective evaluation, the Veteran was not underweight, and the examiner found no other pertinent physical findings related to the Veteran's gastroesophageal reflux disease. The examiner concluded the Veteran's gastroesophageal reflux disease did not impair his ability to work. VA outpatient treatment records confirm his consistent reports of recurrent gastrointestinal pain with heartburn, regurgitation, and reflux. The Veteran has not, however, been described as malnourished, anemic, or underweight. He has been prescribed a variety of medications to address his gastrointestinal symptoms. As noted above, the Veteran and his wife testified before a Veterans Law Judge in October 2011. He stated his gastroesophageal reflux disease caused him chronic gastrointestinal pain, with regurgitation and reflux. They also testified that the Veteran must watch both the amount and types of foods he ate, as spicy and other types of food caused an aggravation of his symptoms. After considering the totality of the record, the Board finds that the preponderance of the evidence is against a disability rating in excess of 10 percent under Diagnostic Code 7346 for the Veteran' gastroesophageal reflux disease. The Board acknowledges the Veteran's complaints of chronic epigastric pain, along with episodes of vomiting and heartburn, but the evidence does not show that these symptoms result in a considerable impairment of health. At all times of record, the Veteran has been of adequate weight and nourishment, and his blood counts and other clinical findings have been within normal limits. The symptoms of dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health for the next-higher rating of 30 percent are conjunctive, not disjunctive; therefore, all criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Accordingly, the Board concludes that the evidence of record does not support the criteria required for the next-higher rating of 30 percent for the Veteran's service-connected gastroesophageal reflux disease under Diagnostic Code 7346. Finally, as the Veteran has not displayed a level of impairment in excess of that noted above at any point during the pendency of this appeal, staged ratings are not warranted. In conclusion, the preponderance of the evidence is against disability ratings in excess of 10 percent for the Veteran's gastroesophageal reflux disease. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Extraschedular consideration Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. Specifically, the symptomatology and impairment caused by the Veteran's bilateral foot disorders, bilateral ankle strains, and gastroesophageal reflux disease are specifically contemplated by the pertinent schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of the symptoms claimed by the Veteran and clinical findings and other objective evidence of record. In this case, the Veteran has reported pain and tenderness of his feet resulting from his bilateral foot disorder, pain and limited mobility due to his bilateral ankle strains, and recurrent epigastric pain, heartburn, and regurgitation resulting from his digestive disorder. These symptoms are part of or similar to symptoms listed under the pertinent schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disabilities on appeal, and referral for consideration of an extraschedular evaluation is not warranted. ORDER A disability rating of 30 percent prior to February 8, 2012 for bilateral plantar fasciitis is granted. A disability rating in excess of 30 percent effective February 8, 2012, for bilateral pes planus with plantar fasciitis is denied. A disability rating in excess of 10 percent for a left ankle strain is denied. A disability rating in excess of 10 percent for a right ankle strain is denied. A disability rating in excess of 10 percent for gastroesophageal reflux disease is denied. REMAND In its January 2012 remand, the Board requested the AOJ afford the Veteran a VA medical examination to determine the etiology of his sleep apnea. The examiner was asked to provide a medical opinion regarding whether the Veteran's sleep apnea was due to or aggravated by a service-connected disability, to include his service-connected disabilities of the feet and spine. Such a VA examination was afforded the Veteran in February 2012; however, the examiner's opinion was incomplete, and therefore, remand is required to correct certain deficiencies. The examiner stated that the Veteran's sleep apnea was not "related to" any period of active duty service, or his service-connected back disability. The Board finds opinion is not sufficient as it does not fully address whether the claimed sleep disorder is aggravated by a service-connected disabilities of the spine and the feet, as claimed by the Veteran. Additionally, review of the hearing testimony shows that the Veteran asserted the sleep apnea had its onset during service in 2006. Therefore, the examiner should address whether the claimed sleep disorder had its onset during a period of active service. The United States Court of Appeals for Veterans Claims (Court) has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is required to obtain a supplemental medical opinion. Next, the Board observes that the Veteran has at various times during the pendency of this appeal stated that his service-connected disabilities interfered with his employment. According to a July 2012 report of VA psychiatric examination, the Veteran has been unemployed since December 2011 due to his pain and various physical disabilities. The Board acknowledges that during the pendency of this appeal, a prior claim for total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was initiated and then subsequently withdrawn by the Veteran in June 2007. As the record again contains evidence received subsequent to 2007 that the Veteran may be unable to work secondary to his service-connected disabilities, the issue of entitlement to a TDIU is properly before the Board at this time. As the agency of original jurisdiction has not, however, afforded the Veteran appropriate notice, development, and adjudication of this issue, it will not be considered at this time. See generally Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with appropriate notice under the VCAA to substantiate a claim for entitlement to a TDIU. 2. Contact the examiner who provided the February 2012 VA examination and opinion and request the examiner address the questions below. If this examiner is no longer available, a suitable substitute may be used in his/her place. The Veteran need not be scheduled for a new examination unless such an examination is deemed necessary by the opinion provider. The claims file, including a copy of this REMAND, should be made available to the examiner for proper review of the medical history. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current sleep disorder, to include sleep apnea, had its onset in service or is otherwise related to service. The examiner set forth an opinion as whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep disorder, to include sleep apnea, is caused or aggravated by a service-connected disability, to include his service-connected spine and feet disorders. If the examiner finds that the Veteran's sleep disorder, to include sleep apnea, is aggravated by a service-connected disability, he/she should indicate, to the extent possible, the degree of disability of the disorder before it was aggravated and its current degree of disability. If the sleep disorder was not caused or aggravated by a service-connected disability, the examiner should state so. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. 2. Thereafter, the issues on appeal, service connection for a sleep disorder and entitlement to a TDIU, should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs