Citation Nr: 18154886 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-42 774 DATE: December 4, 2018 ORDER Entitlement to a rating in excess of 10 percent for right chin numbness is denied. Entitlement to a 10 percent disability rating for gastritis and hiatal hernia (hereinafter “gastritis”) prior to April 29, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for gastritis from April 29, 2016 is denied. REMANDED Entitlement to service connection for bilateral foot disorder is remanded. Entitlement to a rating in excess of 20 percent for right shoulder disability is remanded. Entitlement to a rating in excess of 20 percent for left shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s right chin numbness has resulted, at worse, in moderate impairment of the seventh cranial nerve. 2. Prior to April 29, 2016, the Veteran’s chronic gastritis was manifested by small nodular lesions accompanied by symptoms of abdominal pain, dysphagia, nausea, and vomiting. 3. From April 29, 2016, the Veteran’s chronic gastritis is manifested by symptoms of abdominal pain, nausea, and vomiting, but it is not productive of multiple small eroded or ulcerated areas. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right chin numbness have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.124a, Diagnostic Code (DC) 8207 (2018). 2. Prior to April 29, 2016, the criteria for a 10 percent rating for gastritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.114, DC 7307 (2018). 3. From April 29, 2016, the criteria for a rating in excess of 10 percent for gastritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.3, 4.7, 4.114, DC 7307 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to March 1994. These matters are on appeal from a September 2013 rating decision. The Board notes that the Veteran filed a timely notice of disagreement in January 2014, contending that he is entitled to compensable ratings for his right shoulder disability, left shoulder disability, left ankle disability, right chin numbness, and gastritis. Additionally, an August 2016 rating decision granted service connection for the Veteran’s hiatal hernia at 10 percent disabling from April 29, 2016, to be evaluated together with the Veteran’s service-connected gastritis going forward. Thereafter, the August 2016 rating decision assigned a 20 percent rating for right shoulder disability, a 20 percent rating for left shoulder disability, a 10 percent rating for left ankle disability, and a 10 percent rating for right chin numbness. As the rating periods regarding the issues of right shoulder disability, left shoulder disability, left ankle disability, right chin numbness, and gastritis prior to April 29, 2016 and from April 29, 2016 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Board notes that in an August 2016 rating decision, service connection was granted for right knee and left knee disabilities. Additionally, in an October 2018 rating decision, service connection was granted for right and left hip disabilities. This represents a full grant of the benefits sought, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for right chin numbness The Veteran contends that he is entitled to a higher disability rating for his service-connected right chin numbness, which is currently rated as 10 percent disabling under DC 8207. Under this diagnostic code, a 10 percent rating is assigned for incomplete, moderate paralysis of the cranial nerve. 38 C.F.R. § 4.124a (2018). A 20 percent rating is assigned for incomplete, severe paralysis of the cranial nerve. Id. A maximum 30 percent rating is assigned for complete paralysis of the cranial nerve. Id. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The terms “mild,” “moderate,” and “severe” as used under DC 8207 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “mild” or “moderate” etc., the Board must evaluate all of the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. Upon review of the record, the Board finds that a disability rating in excess of 10 percent for the Veteran’s service-connected right chin numbness is not warranted. Since the Veteran’s May 2012 claim for an increased rating, VA examinations from December 2012 and July 2016, as well as post-service treatment records, reflect the Veteran’s right chin numbness has been manifested by mild numbness to the lower right side of the Veteran’s chin, accompanied by decreased lower right side facial sensation in the fifth cranial nerve, with incomplete, moderate paralysis of the seventh cranial nerve, as well as difficulty chewing. Based on the lay and medical evidence of record, the Board finds that the Veteran’s right chin numbness results, at worse, in moderate impairment of the seventh cranial nerve. The Veteran’s symptoms of numbness and decreased sensation are largely sensory in nature. The medical evidence of record reflects no motor deficits and only slight decreases in sensation. Here, where the nerve involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. As the July 2016 VA examiner found incomplete, moderate paralysis in the Veteran’s right side seventh cranial nerve, the current rating of 10 percent is appropriate. A higher 20 percent rating is not warranted, as the evidence of record does not reflect additional sensory and motor deficits that show severe involvement, nor is there evidence of complete paralysis of the right side seventh cranial nerve. Thus, based on moderate impairment of the seventh cranial nerve, a rating in excess of 10 percent for the Veteran’s service-connected right chin numbness is not warranted. Accordingly, the Board finds that the current 10 percent rating for right chin numbness is appropriate and a rating in excess of 10 percent must be denied. 2. Entitlement to a compensable rating for gastritis prior to April 29, 2016 The Veteran contends that he is entitled to a compensable disability rating for his service-connected gastritis prior to April 29, 2016 under DC 7307. Under this diagnostic code, a 10 percent rating is assigned for chronic gastritis with small nodular lesions, and symptoms. 38 C.F.R. § 4.114 (2018). A 30 percent rating is assigned for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. Id. A maximum 60 percent rating is assigned for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. Id. Upon review of the record, the Board finds that a 10 percent disability rating is warranted prior to April 29, 2016 for the Veteran’s service-connected gastritis. A December 2013 post-service private operative report notes diagnoses of hiatal hernia and chronic gastritis with findings of multiple, small esophageal nodules between 20 to 30 centimeters in size, accompanied by symptoms of abdominal pain, dysphagia, nausea, and vomiting. A higher 30 percent rating, however, is not warranted, as the evidence of record does not show the Veteran’s chronic gastritis is productive of multiple small eroded or ulcerated areas. On the contrary, a February 2013 private treatment record shows no ulcerated or eroded areas were found with regard to the Veteran’s gastritis, nor does evidence from this date until April 29, 2016 reflect chronic gastritis with symptoms of multiple small eroded or ulcerated areas. In sum, a rating of 10 percent for gastritis prior to April 29, 2016 is granted. 3. Entitlement to a rating in excess of 10 percent for gastritis from April 29, 2016 The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected gastritis from April 29, 2016 under DC 7307. Upon review of the record, the Board finds that a disability rating in excess of 10 percent from April 29, 2016 for the Veteran’s gastritis is not warranted. While medical records from April 29, 2016 onward reflect symptoms of abdominal pain, regurgitation, and nausea, a May 2016 VA examination and July 2016 private treatment records, show no evidence of chronic gastritis with multiple small eroded or ulcerated areas. As such, a higher 30 percent rating is not warranted. The Board finds that the current 10 percent rating is appropriate. Accordingly, a rating in excess of 10 percent for the Veteran’s gastritis from April 29, 2016 is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral foot disorder is remanded. The Veteran contends his bilateral foot disorder began during service. His service treatment records ( STRs ) note reported bilateral foot pain and numbness. Post-service treatment records reflect reports of bilateral foot pain and a diagnosis of bursitis. The U.S. Court of Appeals for the Federal Circuit recently found that the term “disability,” as used in 38 U.S.C. § 1110, “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). As the Veteran’s post-service VA treatment records reflect a diagnosis of bilateral foot pain, as well as bursitis, the Board finds that, in light of Saunders, the Veteran should be afforded a VA examination to determine whether his bilateral foot pain presents a functional impairment of earning capacity, and if so, whether that impairment is directly related to service. 2. Claims of entitlement to ratings in excess of 20 percent for a right shoulder disability and a left shoulder disability are remanded. During his March 2016 VA examination, the Veteran reported that he experiences flare-ups in his right and left shoulders. Although the Veteran reported functional loss and impairment due to his reported flare-ups, specifically, that he experiences sharp pain which limits his range of motion, weakness with painful motion, and that he cannot lift his arms overhead or carry heavy items, the examiner did not estimate range of motion loss based on the Veteran’s reported flare-ups and their impact. For this reason, the Board finds that a remand is necessary to ensure that the Board has adequate information as to the Veteran’s reported flare-ups of his right and left shoulders. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. During his March 2016 VA examination, the Veteran reported that he experiences flare-ups in his left ankle. Although the Veteran reported functional loss and impairment due to his reported flare-ups, specifically, that he experiences pain on movement, limitation of motion due to pain, inability to bear weight, and interference with sitting and standing, the examiner did not estimate range of motion loss based on the Veteran’s reported flare-ups and their impact. For this reason, the Board finds that a remand is necessary to ensure that the Board has adequate information as to the Veteran’s reported flare-ups of his left ankle. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed bilateral foot disorder, to include foot pain. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. The rationale for all opinions should be provided. The Veteran’s electronic claims file must be accessible for review by the VA examination in conjunction with the examination. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Is it as least as likely as not (a 50 percent probability or greater) that the Veteran’s reported bilateral foot pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? b) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed bilateral foot disability is etiologically related to service? 2. Schedule the Veteran for a VA examination to determine the nature and current severity of his service-connected right and left shoulder disabilities. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If possible, provide these tests for the opposite joint. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. The rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b) Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, severity, and functional impairment. c) Provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. 3. Schedule the Veteran for a VA examination to determine the nature and current severity of his service-connected left ankle. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If possible, provide these tests for the opposite joint. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. The rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. b) Indicate whether the examination is taking place during a period of flare-up, and if it is not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, severity, and functional impairment. c) Provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degrees of additional range of motion during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. (Continued on the next page)   4. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel