Citation Nr: 18147233 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-06 462A DATE: November 2, 2018 ORDER Entitlement to an initial 10 percent rating, but no higher, for service-connected gastroesophageal reflux disease (GERD) is granted. Entitlement to an initial 10 percent rating, but no higher, for service-connected left foot disability, status post (s/p) neuroma removal with paresthesia and scar is granted. REMANDED Entitlement to service connection for a right hand disability, to include the right fifth metacarpal is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ring finger disability is remanded. FINDINGS OF FACT 1. The Veteran’s GERD has caused symptoms of heartburn and regurgitation, particularly while sleeping at night, on an occasional to frequent basis throughout the duration of the period on appeal. 2. The Veteran’s left foot disability, s/p neuroma removal has caused symptoms of surgery site numbness, foot pain, and twitching while sleeping. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating, but no higher, for service-connected GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Code (DC) 7346. 2. The criteria for entitlement to an initial 10 percent rating, but no higher, for service-connected left foot disability, s/p neuroma removal with paresthesia and scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1985 through March 2007. His service personnel records show an exemplary performance record, including receipt of the Air Force Commendation Medal, among many others. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The record was left open for 90 days for the Veteran to submit additional evidence. In July 2018, the Veteran submitted medical records. In the absence of a specific, written request for initial agency of original jurisdiction (AOJ) review of any additional evidence, there is an automatic waiver of AOJ review. See 38 U.S.C. § 7105 (e)(1), (2) (2012) (applicable in cases where the substantive appeal is filed on or after February 2, 2013). No such request was received, and so the Board has considered the submitted records in making its determination. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when the Veteran was actually experiencing symptoms is what is relevant for assigning rating effective dates, not when evidence was created. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). 1. Entitlement to an initial compensable rating for (GERD) In February 2010, the RO granted service connection for GERD at an initial noncompensable rating under Diagnostic Code (DC) 7346 and the Veteran timely appealed. Because the claim is an initial claim for increased rating, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). DC 7346 provides ratings for hiatal hernia, but is used for rating GERD by analogy. 38 C.F.R. § 4.114. A 60 percent rating is appropriate for GERD with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. A 30 percent evaluation is provided for GERD with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 10 percent rating is appropriate for GERD with two or more of the symptoms for the 30 percent rating of less severity. Id. In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Ratings under Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other. 38 C.F.R. § 4.114. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In the Veteran’s August 2010 Notice of Disagreement (NOD), he explained that he is woken up approximately two to three times per week with symptoms of heartburn and regurgitation, and that he must sleep propped up on pillows to help mitigate the symptoms. These symptoms match those he reported both earlier and later in the record. In December 2008 the Veteran submitted a statement explaining that when he first began experiencing his GERD symptoms at night, it was only occasional but would cause him to vomit. When the symptoms began occurring approximately five to six times per week, he sought treatment and was put on Zantac, which helped alleviate the severity and frequency of symptoms. In a January 2010 VA examination, the examiner noted that the Veteran’s medication made him asymptomatic “unless he eats spicy food or food with tomato sauce.” The Veteran noted in his NOD that he also told the examiner specifically about his heartburn and regurgitation symptoms at the time of the exam, although they were not specifically described in the examination report. The medical record shows that the severity of the Veteran’s GERD again increased in approximately February 2014, and that his medication had to be switched from Zantac to Prilosec in approximately June 2014. At his May 2018 hearing, the Veteran testified that he continues to experience GERD symptoms at night that wake him up, including heartburn, nausea, and regurgitation. Based on the foregoing, the Board finds that the Veteran meets the criteria for a 10 percent rating under DC 7346 because he experienced at least two symptoms, heartburn (pyrosis) and regurgitation, throughout the period on appeal. To the extent there may have been periods with diminished frequency or severity, the Board notes that the 10 percent criteria specifically allows for symptoms from the 30 percent criteria to be “of less severity” when used to grant a 10 percent rating. Although the Veteran’s symptoms meet the criteria for a 10 percent rating, they do not meet the criteria for a 30 percent or a 60 percent rating. The 30 percent criteria are conjunctive, meaning that all of the criteria listed must be met for the percentage rating to be granted. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Nothing in the medical record suggests that the Veteran has experienced dysphagia (difficulty swallowing) or that the symptoms are “productive of considerable impairment of health.” While the Veteran has reported losing up to an hour or two of sleep from each of these episodes, the Board finds that the lost sleep is not, on its own, “considerable impairment of health.” Finally, the Veteran’s symptoms do not meet the criteria for a 60 percent rating. While the record suggests he may have experienced pain and/or vomiting at some points during the period on appeal, there is no evidence that he has experienced material weight loss or hematemesis as a result of his GERD. Because the four symptoms are listed with an “and,” all four must exist to meet the 60 percent rating criteria. Likewise, the evidence does not show that the Veteran has experienced melena with moderate anemia; and, as the primary effect of the Veteran’s GERD is lost sleep (and have not included, for instance, hospitalization or lost jobs), the Board finds that the Veteran’s symptoms are not productive of a severe impairment of health. Thus, the Veteran does not meet the criteria for a 60 percent rating under DC 7346. In sum, the Veteran meets the criteria for a 10 percent rating, but no higher, for his service-connected GERD for the entire period on appeal. 2. Entitlement to an initial compensable rating for left foot disability, s/p neuroma removal with paresthesia and scar The Veteran has an initial noncompensable rating under 38 C.F.R. § 4.71a, DC 5284 (Foot Injuries, other). DC 5284 provides (for each foot) a 10 percent rating for moderate foot injury, a 20 percent rating for moderately severe foot injury, a 30 percent rating for severe foot injury, and a note to the code provides a 40 percent rating for actual loss of use of the foot. In December 2008, the Veteran stated that pain in his left foot had mostly resolved following the surgery to remove a neuroma in service, but that he had permanent numbness in the area around the surgical site. In a November 2009 VA examination, the Veteran reported to the examiner that he was experiencing pain approximately 20 out of 30 days per month, generally related to overuse or a cold environment. The examiner noted that he had a well-healed, non-tender surgical scar measuring 2.5cm long x 3mm wide. The examiner additionally stated that the Veteran had a loss of sensation along the surgical scar and for 2cm in all directions, as confirmed by a monofilament test. The examiner diagnosed the Veteran with paresthesia. In his August 2010 NOD, the Veteran again stated that he was experiencing pain in his foot approximately 20 out of 30 days per month due to factors such as cold and walking more than 300 feet. He explained that because he worked in computer server rooms that are kept at cold temperatures, he had to be in cold environments at work. The Veteran also emphasized that he experienced numbness along his scar and on most of his toes, and stated that about once per month he would experience cramping in his toes. In April 2015 the Veteran sought treatment from a private physician for complaints that his left foot was twitching during his sleep, which would wake his wife. The Veteran noted at that time that his foot was largely non-painful but confirmed continued numbness around the surgical site. The Veteran’s doctor indicated that he believed the nocturnal foot twitching was related to his surgical procedure and resulting nerve symptoms. A foot examination showed some numbness, but normal joint position sense and range of motion, and no signs of neuropathy. At his May 2018 hearing, the Veteran testified that his pain is less frequent than it has been in the past, but that when it occurs it tends to be more severe. The Board notes that the Veteran is rated by analogy under DC 5284 because there is no DC that directly applies to his disability. It has considered applicability of DC 5279 for anterior metatarsalgia and DCs 7801 (scars not of the head, face, or neck that are deep and nonlinear), 7802 (scars not of the head, face, or neck that are superficial and nonlinear), and/or 7804 (unstable or painful scars). However, the Board finds that they are all less applicable and/or less advantageous to the Veteran considering his symptomatology. First, although DC 5279 may seem applicable because the Veteran’s surgery was to treat metatarsalgia, his current symptoms of numbness and twitching extend beyond those considered for that condition and would not be compensated under that DC. Additionally, DC 5279 has a maximum possible rating of 10 percent, and so any worsening of the Veteran’s symptomatology would not be able to be compensated under that DC. Second, although the Veteran does have a scar associated with his surgical procedure, the evidence shows that the scar is superficial, linear, stable, and nonpainful. Additionally, DC 7805 states any disabling effects not considered under DCs 7800-04 should be evaluated under another appropriate DC. Thus, it is appropriate to rate his scar numbness (the only symptomatology associated with his scar) under DC 5284 based on the language of DC 7805. Because DC 5284 allows the Board to rate all left foot symptomatology related to his neuroma removal surgery based on overall severity, and the DC allows a veteran to receive higher rating percentages if symptomatology becomes more severe, the Board finds that DC 5284 is the most appropriate code under which to rate the Veteran’s symptomatology. The words “mild,” “moderate,” and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. The Board finds that the Veteran’s symptoms of constant numbness around the surgical site and toes, occasional pain up to 20 days per month, occasional cramping, and nocturnal twitching beginning in April 2015 combine to reflect a “moderate” severity meeting the 10 percent criteria under DC 7284. In making this determination, the Board notes that symptoms that may be suggestive of a “moderately severe” injury, such as neuropathy or impaired range of motion, were noted not to exist during a physical examination in April 2015, and have not been asserted by the Veteran. Accordingly, the Board finds that the Veteran meets the criteria for a 10 percent rating, but no higher, for his left foot disability for the period on appeal. REASONS FOR REMAND An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in- service event, injury or disease,” or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 1. Entitlement to service connection for a right hand disability, to include the right fifth metacarpal, is remanded. Service treatment records (STRs) show that the Veteran fractured his fifth metacarpal (pinkie finger) on his right hand in December 1986. Imaging results referred to it as a “boxer” fracture. In February 1988, STRs noted “drainage” from a wound on the right fifth metacarpal, but lab results did not show any infection. On his reenlistment Report of Medical History in September 1988, the physician noted the fracture, and found that there was no present weakness, deformity, or limitation of motion. A reenlistment exam in December 1992 noted a linear scar at the base of the right fifth metacarpal. There were no additional complaints in service. As an initial matter, the Board notes that although separate claims came up for a right-hand pinkie finger disability and a right hand disability, the symptoms for the two are asserted to stem from the same in-service injury and to occur in similar circumstances. Accordingly, they are treated as a single issue herein. In a December 2008 statement, the Veteran indicated that he experienced reduced mobility and grip strength in his right hand, and that he would experience pain in the area around his right fifth metacarpal if the area was squeezed too tightly, such as with a strong handshake. He also indicated that bending the pinkie finger too far causes pain. He testified to the same information at his May 2018 hearing. In June 2018 the Veteran was diagnosed with osteoarthritis of the right hand. The medical evidence of record does not contain additional detail about the location of the osteoarthritis. Additionally, no medical professional has opined as to whether the Veteran’s current right hand disability is related to his in-service injury. Therefore, the Board finds that an examination and medical opinion is necessary to decide his claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for left knee condition is remanded. The first dated STR entry in which the Veteran sought treatment for knee pain was in February 2003. The Veteran reported he heard and felt a “pop” in his knee a couple of days prior and had been experiencing pain ever since. He also reported he had been experiencing “catching” in his knee for several years. Knee pain was listed as a chronic condition on several undated forms in the Veteran’s STRs. One of the forms had several dates associated with it, the most recent of which January 2005. Although there are no medical records of treatment after service, the Veteran reports that he has continued to experience pain in his left knee. Additionally, in his August 2010 NOD, the Veteran reported he experiences “locking” and weakness in his left knee. However, no VA examination has been conducted. Although pain can constitute a functional impairment, there has not been adequate development in this case to show whether such functional impairment, or a diagnosed disability, does exist. Because the Veteran’s STRs show an ongoing problem in service, and the Veteran reports the same ongoing symptomatology after service, the Board finds that an examination and medical opinion is necessary to decide his claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a left ring finger disability is remanded. STRs show that the Veteran injured his left ring finger in April 2005, and had ongoing treatment for a condition diagnosed as “mallet finger” through August 2005. Imaging done at the time of the injury confirmed there was no fracture. In May 2006, the Veteran complained that his finger hurt when it got cold. In the same entry, his physician found that the finger had full range of motion. An STR entry in November 2006 noted recurrent pain in his left ring finger due to the mallet finger injury. In December 2008, the Veteran reported he experienced occasional joint stiffness in his left ring finger, and that a doctor had told him he could expect to continue experiencing that stiffness because of his in-service injury. In his August 2010 NOD, the Veteran stated he was having pain, limited movement, and decreased grip associated with his left ring finger. The only medical evidence of record is a note from June 2018 that the Veteran reported his finger gets achy and stiff when it is cold. No doctor has opined as to the possible etiology of the condition. However, given the Veteran’s assertion of continued symptomatology since service, the Board finds that an examination and medical opinion is necessary to decide his claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Please provide the Veteran with the appropriate authorizations so VA may assist him with obtaining any outstanding private medical records regarding his claims, including post-service records. Please also provide him with the opportunity to submit additional records in support of his claims. 2. After the completion of (1) schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed right hand disability, to include the fifth metacarpal. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner is asked to provide the following: (a.) Please identify (by diagnosis) each disability found to be present, to include osteoarthritis. (b.) For each right hand or fifth metacarpal disability found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability had its clinical onset during active service or is related to any incident of service, to include the Veteran’s fracture of the fifth metacarpal in December 1986. (c.) A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 3. After the completion of (1) schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed left knee disability. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner is asked to provide the following: (a.) Please identify (by diagnosis) each disability found to be present. (b.) For each left knee disability found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability had its clinical onset during active service or is related to any incident of service, to include his ongoing complaints of knee pain and “catching.” (c.) A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 4. After the completion of (1) schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed left ring finger disability. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner is asked to provide the following: (a.) Please identify (by diagnosis) each disability found to be present. (b.) For each left ring finger disability found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability had its clinical onset during active service or is related to any incident of service, to include his “mallet finger” injury in April 2005. (c.) A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel