Citation Nr: 1803656	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  15-42 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an effective date earlier (EED) than October 27, 2014 for a 30 percent increase disability evaluation for migraine headaches.

2. Entitlement to an effective date earlier (EED) than January 16, 2013 for an increased disability rating in excess of 30 percent for bilateral plantar fasciitis.

3. Entitlement to an increased disability rating in excess of 30 percent for migraine headaches.

4. Entitlement to an increased disability rating in excess of 30 percent from January 16, 2013 until December 31, 2016, for bilateral plantar fasciitis.

5. Entitlement to a compensable rating for GERD.

6. Entitlement to a compensable rating for hypertension.

7. Entitlement to a compensable rating for abdominal scarring.

8. Entitlement to service connection for bilateral hearing loss disability.

9. Entitlement to service connection for an acquired psychiatric condition, to include secondary to service-connected disabilities.

10. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 2003 until May 2010.

These matters come before the Board of Veterans' Appeals (Board) on appeal from the October 2015, January 2015 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for bilateral hearing loss disability and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran's claim for entitlement to an increased disability rating for migraine headaches was received by VA on October 27, 2014.

2. The Veteran's claim for entitlement to an increased disability rating for bilateral plantar fasciitis was received by VA on January 16, 2013.

3. The Veteran's migraine headaches have been characterized as very frequent completely prostrating and prolonged attacks.

4. From January 16, 2013 until December 31, 2016, the Veteran's bilateral plantar fasciitis was manifested by pain accentuated on use and extreme tenderness of plantar surface bilaterally that were relieved by arch support and/or other orthopedic shoes/appliances.

5. The Veteran's service-connected GERD has been manifested by infrequent episodes of epigastric distress, reflux, pyrosis, and recurrent nausea and vomiting.

6. Throughout the rating period on appeal, the competent clinical evidence of record indicates that the Veteran's hypertension is manifested by a systolic pressure predominantly less than 160 and a diastolic pressure predominantly less than 100, with no history of a diastolic pressure predominantly more than 100 requiring continuous medication for control.

7. The service-connected abdominal scarring is superficial and linear and has not been found to be painful or unstable.

8. The competent medical evidence reflects the Veteran has a mood disorder that is proximately due to or the result of the Veteran's service-connected bilateral plantar fasciitis and tinnitus.



CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than October 27, 2014 for entitlement to an increased rating for migraine headaches have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.400 (2017).

2. The criteria for an effective date earlier than January 16, 2013 for entitlement to an increased rating for bilateral plantar fasciitis have not been met. 38 U.S.C. § 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.400 (2017).

3. The criteria for an evaluation of 50 percent disabling, and no higher, for the migraine headaches, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.321(a), 3.159, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2017).

4. The criteria for an increased rating in excess of 30 percent for the Veteran's bilateral plantar fasciitis from January 16, 2013 until December 31, 2016, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.321, 4.71a, Diagnostic Code 5276 (2017).

5. The criteria for a compensable disability rating for GERD have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017).

6. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.159, 3.321, 4.3, 4.7, 4.104 Diagnostic Code (DC) 7101 (2017).

7. The criteria for compensable rating for abdominal scarring have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.321, 4.25, 4.118, Diagnostic Code 7804, 7805 (2017).

8. The criteria for service connection for a mood disorder have been met. 38 U.S.C. § 1101, 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Entitlement to an effective date earlier (EED) than October 27, 2014 for a 30 percent increase disability evaluation for migraine headaches

Legal Criteria

The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400 (2017).

A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (2017). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p) (2015). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155 (2017).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a).

Analysis

The Veteran is seeking an effective date prior to October 27, 2014 for the award of a 30 percent increased disability rating for migraine headaches. 

The claims folder reflects that in a claim received on October 27, 2014, the Veteran filed a claim for an increased disability rating for her service-connected migraine headaches. The Veteran's migraine headaches disability rating was subsequently increased from noncompensable to 30 percent in a January 2015 rating decision. 

As noted above, the effective date of an award based on claim for increase benefits shall be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim,  whichever is later. 38 U.S.C. § 5110 (a) (2014). While the Veteran contends that she is entitled to an earlier effective date prior to October 27, 2014, the claims folder reflects that the first time the Veteran requested an increase was on October 27, 2014. (See October 27, 2014 Application for Disability Compensation and related Compensation Benefits).  The record does not reflect any increase in disability during the year prior to filing the claim.

As the first formal or informal claim for claim for increased benefits in regard to the Veteran's migraine headaches was received on October 27, 2014, an earlier effective date is not warranted since an increase was not shown during the year prior thereto.

Based on the above, the Board finds that there are no statements by the Veteran, or clinical records, which would entitle the Veteran to an earlier effective date for an increased rating of 30 percent for migraine headaches. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Entitlement to an effective date earlier (EED) than January 16, 2013 for an increased disability rating in excess of 30 percent for bilateral plantar fasciitis

The Veteran is seeking an effective date prior to January 16, 2013 for the award of a 30 percent increased disability rating for bilateral plantar fasciitis. 

The claims folder reflects that in a claim received on January 16, 2013, the Veteran filed a claim for an increased disability rating for his service-connected bilateral plantar fasciitis. The Veteran's bilateral plantar fasciitis disability rating was subsequently increased from 10 percent to 30 percent in an April 2014 rating decision. 

As noted above, the effective date of an award based on claim for increase benefits shall be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim,  whichever is later. 38 U.S.C. § 5110 (a) (2014). While the Veteran contends that she is entitled to an earlier effective date prior to January 16, 2013, the claims folder reflects that the first time the Veteran requested an increase was on January 16, 2013. (See January 16, 2013 Report of General Information).

As the first formal or informal claim for claim for increase benefits in regard to the Veteran's migraine headaches was received on January 16, 2013, and there is no increase shown within one year prior to filing the claim, an earlier effective date is not warranted.

Based on the above, the Board finds that there are no statements by the Veteran, or clinical records, which would entitle the Veteran to an earlier effective date for an increased rating of 30 percent for bilateral plantar fasciitis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Entitlement to an increased disability rating in excess of 30 percent for migraine headaches

As noted, in a January 2015 rating decision the RO increased the Veteran's migraine headaches from noncompensable to 30 percent disabling, effective October 27, 2014.

Legal Criteria

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, "staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

The Veteran's migraine headaches are rated under DC 8100, which contemplates disability ratings for migraines. 38 C.F.R. § 4.124a, DC 8100 (2017).

Under Diagnostic Code 8100, the minimum noncompensable disability rating is warranted for migraines with less frequent attacks. A 10 percent disability rating is warranted for migraines resulting in characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id.

A December 2014 VA medical examination report reflects the Veteran with migraines resulting in characteristic prostrating attacks occurring on an average once a month.

A September 2015 VA examination report reflects the Veteran with headaches located on both sides of the head for duration of less than a day. The report further noted the Veteran's migraine headaches with very frequent completely prostrating and prolonged attacks.

Here, the claims the medical evidence reflects the Veteran's migraine headaches is manifested by very frequent completely prostrating and prolonged attacks. Thus, the Board finds that a disability rating of 50 percent, and no higher, is warranted.

Entitlement to an increased disability rating in excess of 30 percent from January 16, 2013 until December 31, 2016, for bilateral plantar fasciitis

As noted, in an April 2014 rating decision the RO increased the Veteran's bilateral plantar fasciitis from zero percent to 30 percent disabling, effective January 16, 2013. The Board notes that the Veteran's bilateral plantar fasciitis disability rating was subsequently reduced in an October 2016 rating, effective January 1, 2017. The Veteran has yet to appeal the October 2016 rating decision. As such, the Board will limit its discussion to entitlement to an increased disability rating in excess of 30 percent from January 16, 2013 until December 31, 2016, for bilateral plantar fasciitis.


Legal Criteria

The Veteran's bilateral plantar fasciitis has been evaluated under Diagnostic Code 5276.

Unilateral flat feet is rated as 10 percent disabling according to Diagnostic Code 5276. See 38 C.F.R. § 4.71a. A 10 percent rating is assignable for moderate involvement, whether unilateral or bilateral, with objective evidence of weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, pain on manipulation and use of the feet. 

A 20 percent evaluation is assignable for severe unilateral involvement, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities. 

A 30 percent rating is assignable for pronounced unilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017).

A 50 percent rating is assignable for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017).

The Board notes that words such as "severe" and "moderate" 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, 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.

Analysis

A December 2013 VA examination reflects the Veteran with pes planus (flatfoot) and plantar fasciitis, bilaterally. The report further reflects the Veteran with pain accentuated on use; extreme tenderness of plantar surface bilaterally; no pain on manipulation of the feet; no indication of swelling;  no evidence of abnormal weight bearing; no calluses on the medial border; no marked inward displacement; and no marked deformity (probation/abduction). The examination report noted the Veteran's symptoms were relieved by arc support and/or other orthopedic shoes/appliances.

A November 2015 VA examination reflects the Veteran with no pain accentuated on use; no extreme tenderness of plantar surface bilaterally; no pain on manipulation of the feet; no indication of swelling;  no evidence of abnormal weight bearing; no calluses on the medial border; no marked inward displacement; and no marked deformity (probation/abduction).

Here, the claims folder reflects that an increased rating in excess of 30 percent from January 16, 2013 until December 31, 2016 is not warranted. The Board find's the Veteran's symptomology from January 16, 2013 until December 31, 2016 did not approximate the criteria for a 50 percent rating under Diagnostic Code 5276. See 38 C.F.R. § 4.7. Specifically, from January 16, 2013 until December 31, 2016, the Veteran was not shown to have pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances.

As such, the Board finds that an increased rating in excess of 50 percent from January 16, 2013 until December 31, 2016 is not warranted.


Entitlement to a compensable rating for GERD

The Board notes that the Veteran is rated as noncompensable under Diagnostic Code 7399-7346. The Board observes that this rating is by analogy. There is no Diagnostic Code directly applicable to this diagnosis. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury. 38 C.F.R. § 4.20.

Under DC 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. Diagnostic Code 7346 dictates that persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, or arm or shoulder pain, productive of considerable impairment of health warrants a 30 percent disability rating. A 60 percent disability rating is warranted when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or, other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346.

A December 2013 VA medical examination noted the Veteran with infrequent episodes of epigastric distress and reflux. 

A November 2015 VA medical examination noted the Veteran with reflux, pyrosis, and recurrent nausea and vomiting.

The Board finds that the preponderance of the evidence indicates that a compensable rating is not warranted at any time during the appeals process as the evidence of record does not show two or more of the symptoms for the 30 percent evaluation of less severity; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, or arm or shoulder pain, productive of considerable impairment of health warrants; or symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or, other symptom combinations productive of severe impairment of health. In summary, while the Veteran has complained of varied symptoms, objectively he has not been shown to be of such severity as to result in a compensable rating. 

The Board has also considered other potentially applicable diagnostic codes that provide for the assignment of higher evaluations for the Veteran's disability. After review, however, the Board observes that no other diagnostic code provides for a higher rating based on the evidence of record and that the diagnostic code utilized best addresses his disability picture.

Entitlement to a compensable rating for hypertension

The Veteran's hypertension is rated as zero percent or noncompensably disabling under 38 C.F.R. § 4.104, DC 7101, which evaluates impairment from hypertensive vascular disease (hypertension and isolated systolic hypertension). 

A 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 120 or more. A 60 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 130 or more.

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id.


Analysis

A review of the claims folder reflects that the Veteran does not have diastolic blood pressure predominantly of 100 or more; systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 

A December 2013 VA medical examination report shows that the Veteran's blood pressure was 114/90, 120/84, and 110/86. 

A November 2015 VA medical examination report shows that the Veteran's blood pressure was 118/80, 120/82, and 118/80.

VA treatment records reflect the following blood pressure readings:

July 17, 2015 - 137/79
June 19, 2015 - 121/80
June 5, 2015 - 109/78
March 16, 2015 - 128/87
March 16, 2015 - 155/90
September 5, 2014 - 127/85
April 6, 2014 - 160/95
April 6, 2014 - 109/75
April 6, 2014 - 113/84

Taking the entire claims folder in consideration, the record does not reflect that the Veteran has a diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more in order to warrant a 10 percent evaluation. The Veteran's systolic readings are not predominantly more than 160 or more. In regard to the Veteran's diastolic readings, the readings taken as a whole are not predominantly more than 100. 

The Veteran would still be entitled to a 10 percent evaluation if the evidence of record reflected that she had a history of diastolic pressure predominantly 100 or more and he required continuous medication for control. The Board notes that the record does establish that the Veteran has been prescribed medication for her high blood pressure. However, as noted above, the record does not establish a history of diastolic pressure predominantly 100 or more. Both conditions must be met to warrant a 10 percent evaluation on the basis of continuous medication. 

In sum, the competent clinical evidence of record is against a finding that the Veteran has a diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more which requires continuous medication for control.

The Board finds that the competent credible medical evidence of record demonstrates that the Veteran's disability picture more nearly approximates the criteria for a non-compensable rating, and that a compensable initial, or staged, ratings are not warranted.

The Board has considered whether there are any other applicable diagnostic codes which would provide a higher rating, but the Board finds there is not.

Entitlement to a compensable rating for abdominal scarring

The Board notes that the Veteran is currently in receipt of a noncompensable rating for abdominal scarring. The Veteran's scars have been rated under Diagnostic Code 7805. 38 C.F.R. § 4.118 (2017).

Legal Criteria

Under Diagnostic Code 7802, burns or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear are evaluated.

The following ratings are available under Diagnostic Code 7802, for superficial scars, other than those of the head, face, or neck, that are nonlinear, a 10 percent rating is warranted if the scar, or scars, cover an area, or areas, of 144 square inches (929 square centimeters) or more. 

A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 1 (2017).

For purposes of Diagnostic Code 7802, if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, a separate rating is to be assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity, the total area of the qualifying scars that affect the anterior portion of the trunk, and the total area of the qualifying scars that affect the posterior portion of the trunk. 38 C.F.R. § 4.118, Diagnostic Code7802, Notes 2 (2017). The separate ratings are then combined under 38 C.F.R. § 4.25. 

Criteria for Unstable or Painful Scars (DC 7804)

Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings of 20 and 30 percent are warranted if there are three or four, or five or more, unstable or painful scars, respectively. If one or more scars are both unstable and painful, a 10 percent rating is added to the rating that is based on the total number of unstable or painful scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1 (2017).

Any disabling effects of scars (including linear scars) that are not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code, to include, where applicable, diagnostic codes pertaining to limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017).


Analysis

A December 2013 VA medical examination reflects the Veteran with a service-connected superficial linear scar located at the abdomino-pubic junction measuring 13cm in length. The examination reflects a second service-connected linear scar located at the inferior border of the umbilicus measuring 1cm in length. The examination reflects the service-connected scars are not painful or unstable. 

A November 2015 VA medical examination reflects the Veteran with a service-connected superficial linear scar located at the pubic/infraumbilical measuring 14cm in length. The examination reflects a second service-connected linear scar located at the umbilical measuring 1cm in length. The examination reflects the service-connected scars are not painful or unstable.

Based on the Veteran having two superficial and linear scar covering less than 144 square inches (929 square centimeters) which is neither painful nor unstable; a compensable rating is not warranted for the Veteran's service- connected scarring, under any relevant DC.

Entitlement to service connection for an acquired psychiatric condition, to include secondary to service-connected disabilities

The Veteran contends/asserts that she has an acquired psychiatric condition related to her service-connected disabilities.

A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b).

The question for the Board is whether the Veteran has an acquired psychiatric condition that is caused or aggravated by a service-connected disability.

The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran mood disorder is proximately due to or the result of the Veteran's service-connected bilateral plantar fasciitis and tinnitus.

In a November 2014 private mental examination, the examiner diagnosed the Veteran with mood disorder. The examiner opined that based on the examination and the Veteran's claims folder the Veteran's service-connected plantar fasciitis and tinnitus are more likely than not causing her mood disorder. In providing the opinion, the examiner relied in part, on the Veteran's lay statements, the Veteran's clinical records, and medical literature.

In light of the Veteran's diagnoses, the objective clinical medical evidence as a whole, and her credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for a mood disorder, and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim for service connection for an acquired psychiatric disorder is granted.


ORDER

Entitlement to an effective date earlier (EED) than October 27, 2014 for a 30 percent increase disability evaluation for migraine headaches is denied.

Entitlement to an effective date earlier (EED) than January 16, 2013 for an increased disability rating in excess of 30 percent for bilateral plantar fasciitis is denied.

Entitlement to an increased rating of 50 percent disabling, and no higher, for migraine headaches is granted, subject to the laws and regulations controlling the award of monetary benefits.

Entitlement to an increased disability rating in excess of 30 percent from January 16, 2013 until December 31, 2016, for bilateral plantar fasciitis is denied.

Entitlement to a compensable rating for GERD is denied.

Entitlement to a compensable rating for hypertension is denied.

Entitlement to a compensable rating for abdominal scarring is denied.

Entitlement to service connection for a mood disorder is granted.


REMAND

In regard to the Veteran's claim for entitlement to service connection for bilateral hearing loss disability, the Board finds that a remand is necessary.

The claims file does not reflect that the Veteran has been provided a VA medical examination or medical opinion in regard to bilateral hearing loss disability claim. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claim. However; in order for the duty to assist to be triggered, the following must be present: (A) competent lay or medical evidence of a current disability, persistent, or recurrent symptoms of a disability, (B) evidence establishing the Veteran suffered an event, injury, or disease or symptoms of a disease, and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159 (c)(4)(i). The Board finds that the requirements have been met in order to trigger the VA's duty to assist for the reasons stated below.

The claims folder reflects that the Veteran has been treated for an ear condition. Furthermore, the Veteran contends that the claimed condition may be associated with an event, injury, or disease during his active military service.

In this case, without adequate medical examinations and medical opinion in regard to the Veteran's claimed condition, the Board finds the current evidence to be insufficient to decide the claim. Therefore, VA medical examination and medical opinion is required by VA's duty to assist the Veteran in developing evidence to substantiate the claim to service connection for bilateral hearing loss disability.

The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for TDIU while remanding the other issue on appeal. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 

As the outcome of the claim on being remanded could have a significant impact on the Veteran's appeal for entitlement to TDIU, the Board finds these matters inextricably intertwined. The Board also notes that an undecided issue "inextricably intertwined" with an issue certified for appeal must be adjudicated prior to appellate review. Thus, the issue for entitlement to TDIU must be remanded.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Request the appellant to identify all medical providers (VA and private) who have provided treatment for bilateral hearing loss, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file.

2. Schedule the Veteran for a VA medical examination with the appropriate physician in regard to entitlement to service connection for bilateral hearing loss. The examiner is requested  to opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran has bilateral hearing loss disability related to, or aggravated by, military service.

In providing the opinion, the examiner must provide a full and complete rationale explaining the reasoning for all opinions given. If the examiner is unable to provide the opinion requested, then he or she must state so and provide an explanation as to why an opinion cannot be given.

3. After completion of the above requested development, and any other development deemed necessary, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and her representative a supplemental statement of the case, and afford them the opportunity to respond before the claims file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2014).



______________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs