Citation Nr: 18152820 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-41 282 DATE: November 27, 2018 ORDER A 50 percent rating is granted for the period on appeal prior to November 17, 2017 for bilateral plantar fasciitis; a rating in excess of 50 percent is denied for the entire appeal period. A 30 percent rating is granted for GERD; a rating in excess of 30 percent is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, bilateral plantar fasciitis has been manifested by acquired flatfoot, pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliance. This is the highest available schedular rating for bilateral plantar fasciitis; there are no symptoms or findings that make application of the regular schedular provisions impractical. 2. Throughout the rating period on appeal GERD has been manifested by not more than persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for bilateral plantar fasciitis prior to November 17, 2017 have been met; the criteria for a rating in excess of 50 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 38 C.F.R. §§ 3.321 4.71a, Diagnostic Code 5276. 2. The criteria for a 30 percent rating for GERD are met; the criteria for a rating in excess of 30 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to February 1989. He appealed a rating decision that denied higher ratings for these claims. In January 2016, he testified before the undersigned Veterans Law Judge. At the hearing, the undersigned clarified the issue on appeal and made inquiry as to the existence of outstanding evidence as to the issue being decided. The actions of the VLJ comply with 38 C.F.R. § 3.103. In April 2016, the Board denied a compensable rating for bilateral plantar fasciitis and a rating in excess of 10 percent for GERD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In June 2017, the Court granted the parties Joint Motion for Partial Remand (JMR) vacating the April 2016 Board decision. In October 2017, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for actions in compliance with the JMR. In July 2018, the AOJ granted a 50 percent rating from November 17, 2017 for plantar fasciitis and continued to deny an increased rating for GERD. The claims have been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Evaluation of bilateral plantar fasciitis, rated noncompensable prior to November 17, 2017, and 50 percent disabling as of that date. The Board notes that the 50 percent disability rating under DC 5276 is for bilateral acquired flatfoot, pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliance. This is the highest evaluation allowed under the law for this condition. As to the period prior to November 17, 2017, the Board finds that the evidence is in equipoise as to whether a 50 percent rating is warranted for this disability. As such, a 50 percent rating is assigned for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7. Initially, the Board notes that the prior 2015 VA examination has been deemed inadequate and is not for consideration. The November 2017 VA examination that supports a 50 percent rating was ordered by the Board in the 2017 remand in compliance with the JMR. VA examination in October 2009 noted that the Veteran had bilateral foot pain that developed after approximately 15 minutes of walking or 2-3 blocks of walking. At the January 2016 hearing, the Veteran clarified that he has pain all the time in his feet; they hurt when he wakes up and places them on the floor, when he walks and when he drives. He is glad he has the option of cruise control. His feet swell and cause him to limp. He gets a reduced sensation in his feet then his feet feel like he is plugged into a wall, electrically, like he has touched an electric fence. He uses a cane and orthotics but still has pain with walking six feet. His feet throb and hurt if he walks a block. He can stand at most 5 minutes due to foot pain. The Veteran discussed getting an examination to support his claim, but did not do so. The November 2017 examining physician reviewed the record and examined the Veteran, then noted that the Veteran reportedly could not participate in activities which require prolonged standing, walking, running, or jogging, as these activities increased bilateral foot pain. The pain was bilateral in the feet and heels and lower leg. No flare-ups were noted. There was pain on use and with manipulation, and use and manipulation accentuated pain. There were characteristic callouses. Arch supports did not relieve the problem. There was decreased longitudinal arch on weight bearing. There was marked deformity and marked pronation on the left, not improved by shoe or appliance. The bilateral condition caused pain on weight bearing as well as pain on movement and disturbance of locomotion which caused functional loss. There was a left plantar calcaneal spur. Considering the findings on this examination, as well as the remaining evidence of record that has not been deemed inadequate, in combination with the Veteran’s credible testimony as to pain, the Board finds that the bilateral plantar fasciitis more nearly approximates the criteria for a 50 percent rating at all times throughout the appeal period. Accordingly, a 50 percent rating is granted for the period prior to November 17, 2017. Here, the 2017 examiner did not indicate that the manifestations were of recent origin, and the Veteran has credibly testified to the effect that the manifestations have been present throughout the appeal period. However, the Board can find no basis for a higher schedular evaluation, nor has the Veteran offered specific argument or testimony in this regard. Again, the 50 percent rating is the highest schedular evaluation allowed under the law for this condition. Finally, as to the entire period on appeal, the record does not suggest nor does the Veteran argue that application of the extraschedular rating provisions is warranted in this case. 38 C.F.R. § 3.321(b). He has essentially argued that the condition results in pain and tenderness, with resultant limitations not improved by orthotic shoes or appliances. The 50 percent schedular rating adequately contemplates the severity and symptomatology of the Veteran's disability picture. The assigned schedular evaluation is adequate, and no referral is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 2. Evaluation of GERD, rated 10 percent disabling. In the December 2009 rating decision on appeal, the AOJ granted service connection for GERD and assigned an initial rating of 10 percent, effective March 18, 2009, under Diagnostic Code 7346. The Veteran disagreed with the rating assigned, and this appeal ensued. It is primarily contended that GERD symptoms result in considerable impairment of health. GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia under Diagnostic Code 7346. See 38 C.F.R. § 4.20. Diagnostic Code 7346 provides a 60 percent rating 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 rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. The criteria for a 30 percent evaluation are conjunctive in part as indicated by the use of the word "and." See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board finds that the evidence is in equipoise as to whether a 30 percent rating is warranted for this disability. As such, a 30 percent rating is assigned for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7. During the appeal period of this claim, GERD symptoms caused "considerable impairment of health." The Board notes that the prior 2009 and 2015 VA examinations have been deemed inadequate and are not for consideration. The November 2017 VA examination was ordered by the Board in the 2017 remand in compliance with the JMR to obtain medical evidence so that the Board may ascertain whether GERD symptoms cause “considerable impairment of health.” The fact that the Veteran has the symptoms listed for a 30 percent rating at DC 7346 has been essentially acknowledged by the Court and is not been in dispute; the 2017 examination allows for a conclusion that they cause considerable impairment of health. The November 2017 examination reflects that the examining physician reviewed the claims folder and medical records and examined the Veteran. The examiner found the Veteran to have persistent symptoms despite daily high doses of proton pump inhibitors. The GERD was manifested by dysphagia, pyrosis, reflux, vomiting and sleep disturbance caused by esophageal reflux. The Board accords the Veteran the benefit of the doubt and concludes that the symptoms of GERD result in considerable impairment of health. Thus, a 30 percent rating is warranted. However, the preponderance of the evidence is against finding that the criteria for a 60 percent rating are met for GERD. Medical records do not show material weight loss or melena. There is no indication that the GERD symptoms that are present produce severe impairment of health. The Veteran denied melena when asked during an October 2016 medical visit. While there is a history of anemia   there are multiple medical problems for which the Veteran is being treated. Multiple treatment records from 2015 to 2017 reflect that he denied abdominal pain, nausea, vomiting, diarrhea, constipation, poor appetite, blood in stool, and that his abdomen was non-tender. The Veteran does not allege, in testimony, written statements or treatment records, that his GERD produces severe impairment of health, and the Bord does not find severe impairment due to GERD. Thus, a rating in excess of 30 percent is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL