Citation Nr: 1611850 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 09-39 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Service connection for gastritis. 2. Service connection for a right hand disorder, to include arthritis. 3. Entitlement to an initial evaluation for a cervical spine disability in excess of 10 percent prior to June 3, 2015 and 20 percent thereafter. 4. Entitlement to an initial evaluation for lumbar spine disability in excess of 10 percent prior to March 23, 2011, 20 percent from March 23, 2011 to May 2, 2012, and 40 percent thereafter. 5. Entitlement to an initial compensable evaluation for lichen simplex on the penis. 6. Entitlement to an initial compensable evaluation for hemorrhoids. 7. Entitlement to an initial evaluation in excess of 10 percent for right foot status post-tibial sesamoidectomy and excision of neuroma and heel spur, with plantar fasciotom, and with plantar fasciitis, hammer toes, and gout. 8. Entitlement to an initial evaluation in excess of 10 percent for left foot status post tibial sesamoidectomy and excision of neuroma and heel spur, with plantar fasciotom, and with plantar fasciitis and hammer toes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a February 2009 rating decision, the RO, in pertinent part granted service connection for Morton's neuroma (10 percent disability rating) and noncompensable lichen planus, right foot gout, mild cervical discogenic disease, right foot hammer toes, left foot hammer toes. Each disability was effective September 1, 2008. The RO also denied service connection for hemorrhoids, a right hand condition, gastritis, and right and left foot plantar fasciitis. In a September 2009 rating decision, the RO granted service connection for noncompensable hemorrhoids (effective September 1, 2008). In January 2010, the RO granted service connection for plantar fasciitis of each foot, effective September 1, 2008. The RO indicated that evaluation that for the right foot, a 10 percent disability rating would be continued, for plantar fasciitis with hammer toes, and gout, status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotomy. The RO similarly indicated for the left foot, a 10 percent disability rating would be continued, for plantar fasciitis with hammer toes, status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotomy. The Board notes that the Veteran is not service-connected for gout of the left foot, though the RO has added gout to its description of the left foot disorders in subsequent statements of the case. As such, the issue has been characterized to address that fact. In April 2012, the RO granted a 10 percent disability rating for lumbar spine degenerative disc disease and spondylosis (previously evaluated as degenerative athropathy), effective September 1, 2008. The RO also granted a 20 percent disability rating, from March 23, 2011. The RO further granted a 10 percent disability rating for mild cervical discogenic disease, with the diagnosis changed to cervical discogenic disease, degenerative disc disease, and spondylosis. In April 2012, the RO also granted service connection for neurological impairment of the upper and lower extremities as related to the service-connected cervical spine and lumbar spine disabilities. As the Veteran has not appealed this decision as to those matters, such issues are not before the Board. The Board notes that the Veteran currently has a 100 percent disability rating, for indeterminate cell histiocytosis with chronic thrombocytopenia, and special monthly compensation for housebound, both effective form February 15, 2013, per a May 2014 rating decision. Also, in a May 2015 rating decision, the RO granted service connection for noncompensable gastroesophageal reflux disease (GERD) (effective September 1, 2008). As such, that matter will not be considered as part of the current claim for service connection for gastritis. In the May 2015 rating decision, the RO further granted a 40 percent disability rating for the lumbar spine degenerative disc disease and spondylosis (effective May 2, 2012). In a July 2015 rating decision, the RO also granted a 20 percent disability rating for cervical degenerative disc disease and spondylosis (effective June 3, 2015). Inasmuch as higher ratings are available for service-connected disabilities that the RO has granted increased ratings for during the course of the appeal, and as the Veteran is presumed to seek the maximum available benefit for a disability, the Board has now characterized the appeals as set forth on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). In January 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the Central Office of the Board. A transcript of that hearing is of record. The issue of entitlement to an earlier effective date for the grant of service connection for indeterminate cell histiocytosis (granted in a May 2014 rating decision, with 100 percent, effective February 15, 2013), has been raised by the record in a July 2014 Report of General Information, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for a right hand disorder and increased ratings for the cervical and lumbar spine disabilities, lichen simplex on the penis, and hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Resolving all doubt in favor of the Veteran, he has gastritis that is etiologically related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for gastritis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board is granting service connection for gastritis, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Gastritis Claim The Veteran contends that he has had gastritis since service. As noted in the Introduction, the RO granted service connection for GERD in a May 2015 rating decision. As such, that matter will not be considered as part of the current claim for service connection for gastritis. A. Service Connection Law Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In some cases, such as claims for arthritis, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). B. Factual Background and Analysis Service treatment records include a November 1989 finding of possible gastritis, following complaints of abdominal discomfort. Also, in his April 2008 separation examination, the Veteran reported having frequent indigestion or heartburn, almost daily, which required him to use several extra strength Tums a day. He reported not seeking medical treatment for it. In September 2008 the Veteran underwent a VA examination. Following an Upper Gastrointestinal (GI) series, the examiner found that the Veteran's results were normal and that a diagnosis was not warranted. The Veteran underwent another VA examination, with upper GI, in May 2012. The examiner found esophageal spasm and hiatal hernia, but did not indicate any findings of gastritis. However, a July 2010 National Naval Medical Center stomach biopsy indicates that the Veteran has "MILD CHRONIC INACTIVE GASTRITIS." Also, the May 2012 VA examination included a gastric biopsy study, the report for which was provided in June 2012. In that report, a clinician provided a disease classification of gastritis. Given the Veteran's credible reports of in-service gastric symptoms, the in-service treatment for possible gastritis, and the July 2010 finding of gastritis less than two years following his discharge from service, the Board finds that the evidence of record is at least at equipoise in regards to the claim. As such, the benefit of the doubt rule applies. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Giving the Veteran the benefit of the doubt, the Board finds that service connection for gastritis is granted. ORDER Service connection for gastritis is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A. Right Hand Disorder The Veteran claims that he has had right hand arthritis since service. During his January 2016 Board hearing, he reported that he had hand surgery in service and that at some point a doctor told him he had arthritis. He also reported symptoms such as crepitus and that his right hand gets sore faster than his left when typing and writing; he also would get writer's cramp. The X-ray evidence of record clearly shows that the Veteran does not have right hand arthritis. The September 2008 VA examination X-ray report showed "Multiple views of the right hand show no evidence for fracture or other significant bone or soft tissue abnormality;" the impression was negative right hand. Additionally, the examiner specifically found no diagnosis for the hand, finding "no pathology to render a diagnosis." A December 2008 X-ray report from Chantilly Family Practice Center showed no abnormalities. A May 2012 VA examination X-ray report showed an old healed fracture to the fifth metacarpal, but did not make any findings of arthritis. However, although the May 2012 VA examiner did not diagnose the Veteran with any kind of right hand disorder, he also opined that "[s]ervice records indicate Vet had right hand tendonitis, this condition is likely to recur with repetitive hand movements causing inflammation of tendons." The record is thus unclear as to whether the Veteran currently has a right hand disorder related to service. An addendum medical opinion or new VA examination of the right hand is necessary to clarify this matter. B. Increased Ratings for the Cervical and Lumbar Spine Disabilities The Veteran has an initial evaluation for a cervical spine disability of 10 percent prior to June 3, 2015 and 20 percent thereafter. He has an initial evaluation for lumbar spine disability of 10 percent prior to March 23, 2011; 20 percent from March 23, 2011 to May 2, 2012; and 40 percent thereafter. During his January 2016 Board hearing, the Veteran reported that the severity of his spine disabilities had not changed over the appeal period, he had simply decreased treatment with narcotics and had increased physical therapy and pain management. In July 2011, the Veteran reported treatment for his back, which included treatment from Dr. R. Meha with Chantilly Family Practice Clinic and physical therapy form INOVA physical therapy. The AOJ has not attempted to obtain such records, but such records need to be obtained, which will be further discussed below. C. Lichen Simplex on the Penis The Veteran last underwent a VA examination for lichen simplex on the penis in September 2008. During the January 2016 Board hearing, the Veteran reported that the examiner had not examined the area in question. He also reported receiving light therapy for the disorder, as well as, topical ointment. The Board finds that a VA examination is necessary to determine the current severity of the disability. D. Hemorrhoids The Veteran has undergone two VA examinations for his hemorrhoids, in September 2008 and May 2012. The Veteran has claimed that the September 2008 VA examiner did not perform a physical examination. Private medical records of record, from Chantilly Family Practice Center in 2009, generally document treatment for hemorrhoids of a greater severity than indicated by the VA examiners. Also, the Veteran has indicated that he currently has symptoms worse than found on the May 2012 VA examination. The Board finds that a VA examination is necessary to determine the current severity of the disability. E. Right and Left Foot Disabilities The Veteran is service-connected for right foot status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotom, with plantar fasciitis, hammer toes, and gout. He is also service-connected for left foot status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotom, with plantar fasciitis and hammer toes. In September 2008 and May 2012 the Veteran underwent VA examinations as to the disabilities. However, the findings in the VA examination reports are internally inconsistent and inconsistent with the private medical records. For example, the September 2008 VA examiner diagnosed the Veteran with bilateral hammer toes and status post excision bilateral Morton's neuromas. The September 2008 VA examiner further found that the Veteran did not require any support with his shoes, and did not have any limitation with standing and walking. In contrast, in a March 2009 letter, podiatrist J.M. Hurst reported that due to the bilateral nature of his foot deformities and their severity post-operatively, the Veteran would continue to need functional custom made orthotics in his shoes indefinitely. Dr. Hurst also noted the Veteran was disabled and unable to stand, walk or run consistently without biomechanical control of his feet within his shoes. Dr. Hurst further diagnosed the Veteran with lesser metatarsalgia/cavus foot left. Also problematically, in May 2012, the VA examiner only diagnosed the Veteran with hammer toes; he specifically found that the Veteran did not have hallux valgus. However, later in the VA examination, he diagnosed the Veteran with hallux valgus and calcaneal osteophyte, but did not provide examination findings regarding the hallux valgus. Additionally, none of the evidence discussed the Veteran's July 2008 right foot MRI, which documented a non-united medial sesamoid fracture and mild first MTP osteoarthritis. An adequate VA examination is necessary to determine the Veteran's foot symptoms status post tibial sesamoidectomy and excision of neuroma and heel spur, as well as, the current severity of the disability. F. Medical Records As to the cervical and lumbar spine claims, in an July 2011 authorization, the Veteran reported treatment from Dr. R. Meha with Chantilly Family Practice Center, physical therapy treatment with PT Bessie with INOVA Physical Therapy, and treatment from Dr. M. Poropapas, with Capital Spine & Pain. Those records have not been obtained by VA, though the Veteran appears to have provided some records from some of those facilities. Records from Chantilly Family Practice Center have included treatment for hemorrhoids and the right hand, but not the back. The last Capital Spine and Pain records were from 2011. Additionally, during the January 2016 Board hearing, the Veteran indicated continuing treatment for the back. The Veteran also reported, in an August 2008 authorization, surgical treatment from INOVA Fair Oaks. Those records have not been associated with the claims file. In November 2009, the Veteran provided authorizations to obtain records from Dr. Khanna, ENT, and Dr. M. Stashower (dermatologist); however, those records do not appear to have been requested by the AOJ. The Veteran has also provided some records from Dr. Khanna (related to his service-connected sleep apnea), Dr. Stashower (with the last records from 2009 and including treatment for lichen simplex on the penis) and podiatrist J.M. Hurst (with the last records from 2009 and indicating continuing foot treatment). The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for the remanded disorders and all reasonable attempts to obtain such records should be made. All unassociated VA or other federal records, such as Tricare records, should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. All unassociated VA or other federal records, such as Tricare records, should be obtained and associated with the claims file. 2. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for his claimed disorders, including Chantilly Family Patient Clinic, INOVA Physical Therapy, INOVA Fair Oaks, Capital Spine & Pain, Dr. Stashower (dermatologist), and Dr. J.M. Hurst (podiatrist). After securing any necessary authorization from him, all reasonable attempts should be made to obtain such records, consistent with 38 U.S.C.A. § 5103A (b) (2) and 38 C.F.R. § 3.159(e). 3. After the above development has been accomplished, the claims file and a full copy of this REMAND must be made available to the May 2012 right hand VA examiner or other appropriate physician. The need for an additional examination of the Veteran is left to the discretion of the physician selected to write the addendum opinion. (If any opinion/examination is deemed necessary by a specialist, such as an orthopedist, neurologist, etc., such an examination should be scheduled and the specialist should be asked to address the same questions.) (a) Does the Veteran (i) currently have a right hand disorder OR (ii) has had a right hand disorder during the course of the appeal (since September 2008), to specifically include either tendonitis or arthritis? If so, please identify EACH current diagnosis referable to the right hand. (b) For each currently diagnosed right hand disorder, it at least as likely as not that such is related to the Veteran's military service (June 1983 to August 2008)? c) Is it at least as likely as not that the any currently diagnosed arthritis (if found) developed, to a compensable degree, within one year following his discharge from service (i.e., August 2008)? Again, consider statements made by the Veteran in this regard. The lack of medical records documenting his symptoms or a diagnosis is not determinative. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 4. After obtaining all outstanding records, the AOJ should schedule a new skin VA examination to determine the current severity and all manifestations of his service-connected lichen simplex on the penis. The Veteran's claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. The examiner should indicate in examination report if the claims file was reviewed. (a) What percentage of the entire body and what percentage of exposed areas is affected? (b) What therapy (topical, systemic, intensive light) is required during a 12-month period? How long of a duration of therapy is required or is the need constant? (c) In assessing the scar(s) on examination, the examiner should describe the nature and severity of all manifestations of the scar(s), to include addressing the following inquiries: (i) Describe the number and size of any scars present in the affected area. (ii) Is any scar deep or does it/do they collectively cause limited motion in an area or areas exceeding 6 square inches, 12 square inches, 72 square inches, or 144 square inches? (iii) Is the scar superficial and does it/do they collectively cover 144 square inches or more? (iv) Is any scar superficial and unstable? (v) Is any scar superficial and painful? (vi) Does any scar/scarring cause additional loss of motion or loss of function? Any additional pertinent findings (such as evidence of swelling, redness, tenderness, discoloration, etc.) should be reported. In providing answers to the aforementioned questions as well as documenting other symptoms, the examiner should comment on and/or take note of the fact that the claimant is generally considered competent to report on the observable symptoms of his disorder (i.e., pain, swelling, lost motion, etc.) even if medical records may be negative for such symptoms. In addition to objective findings, the examiner should fully describe the Veteran's lay accounts of functional effects caused by the skin disorder in the final report of the evaluation, such as those impacting his daily activities and employment/employability. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 5. After obtaining all outstanding records, the AOJ should schedule a new hemorrhoids VA examination to determine the current severity and all manifestations of his service-connected hemorrhoids. The Veteran's claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. The examiner should indicate in examination report if the claims file was reviewed. What symptoms are associated with the Veteran's hemorrhoids? Determine whether they are mild or moderate; large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or with persistent bleeding and with secondary anemia or with fissures. Any additional pertinent findings should be reported. In providing answers to the aforementioned questions as well as documenting other symptoms, the examiner should comment on and/or take note of the fact that the claimant is generally considered competent to report on the observable symptoms of his disorder (i.e., pain, swelling, etc.) even if medical records may be negative for such symptoms. In addition to objective findings, the examiner should fully describe the Veteran's lay accounts of functional effects caused by hemorrhoids in the final report of the evaluation, such as functional impairment impacting his daily activities and employment/employability. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 6. After obtaining any outstanding treatment records, the Veteran should be afforded a VA examination by a PODIATRIST to determine the current nature and severity of his service-connected (a) right foot status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotom, with plantar fasciitis, hammer toes, and gout and (b) left foot status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotom, with plantar fasciitis and hammer toes. The Veteran's claims folder and a copy of this REMAND must be reviewed by the examiner in conjunction with the examination. Any indicated evaluations, studies, and tests should be conducted. The examiner should document the range of motion of EACH foot. He or she should note the nature and severity of ALL symptoms associated with the service-connected (a) right foot status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotom, and with plantar fasciitis, hammer toes, and gout and/or (b) left foot status post tibial sesamoidectomy and excision of neuroma and heel spur with plantar fasciotom, and with plantar fasciitis and hammer toes. If there are any other diagnoses pertaining to the right foot, the examiner should specifically indicate whether such are related to the service-connected (a) right foot disability and/or (b) left foot disability. The examiner should specifically note, to the extent possible, all relevant signs and symptoms attributable to EACH service-connected disability (as opposed to those symptoms attributable to a non-service-connected disorder). The examiner should also indicate whether (a) right foot disability and/or left foot disability is slight, moderate, moderately severe, or severe. The examiner should comment on the functional impairment caused solely by the service-connected right and left foot disabilities, such impairment impacting his daily activities and employment/employability A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 7. The AOJ should perform any additional development it deems warranted, to possibly include current VA examinations for the lumbar and cervical spine disabilities. 8. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs