Citation Nr: 18156243 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 18-16 462 DATE: December 7, 2018 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) (claimed as heartburn) is granted. Entitlement to service connection for cervical spine pain (claimed as a neck condition) is granted. Entitlement to an initial rating of 30 percent, but no higher, for a bilateral foot disability is granted. Entitlement to an initial compensable rating for scars of the right shoulder, right knee, and right ankle is denied. Entitlement to an initial rating of 30 percent, but no higher, for right upper extremity carpal tunnel syndrome is granted. Entitlement to an initial rating in excess of 10 percent for left upper extremity carpal tunnel syndrome is denied. REMANDED Entitlement to service connection for chest pain is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability remanded. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to an initial compensable rating for tension headaches is remanded. FINDINGS OF FACT 1. The Veteran’s GERD is caused or aggravated by chronic use of NSAIDs used to treat multiple service-connected disabilities. 2. The Veteran has service in Southwest Asia and his cervical spine pain is presumed to be related to such service. 3. Throughout the appeal period, the Veteran’s bilateral foot disability has been manifested by right foot pain on manipulation that is accentuated on use, marked deformity of both feet, and marked pronation of both feet. 4. Throughout the appeal period, the Veteran’s right shoulder, right knee, and right ankle scars have not been manifested by any characteristics of disfigurement, have not been painful or unstable, and have not caused any disabling effects. 5. Throughout the appeal period, the Veteran’s right upper extremity carpal tunnel syndrome has been productive of a disability picture consistent with moderate incomplete paralysis of the median nerve; there is no showing of severe incomplete paralysis. 6. Throughout the appeal period, the Veteran’s left upper extremity carpal tunnel syndrome has been productive of a disability picture consistent with mild incomplete paralysis of the median nerve; there is no showing of moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 2. The criteria for service connection for a cervical spine pain have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 3. The criteria for an initial rating of 30 percent, but no higher, for bilateral plantar fasciitis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Code 5276 (2018). 4. The criteria for an initial compensable rating for scars of the right shoulder, knee, and ankle have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118 Diagnostic Codes 7804, 7805 (2018). 5. The criteria for entitlement to an initial rating of 30 percent, but no higher, for right upper extremity carpal tunnel syndrome have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8515 (2018). 6. The criteria for entitlement to an initial rating in excess of 10 percent for left upper extremity carpal tunnel syndrome have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8515 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from June 2004 to August 2016, to include service in Southwest Asia. His decorations for his active service include a Combat Action Ribbon. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection – GERD The Veteran asserts that his diagnosed GERD is caused or permanently aggravated by his service-connected disabilities, to include medication taken for such. In January 2018, the Veteran submitted a private medical opinion in support of his claim. The nurse practitioner opined that the Veteran’s GERD was at least as likely as not caused or aggravated by chronic NSAID use for treatment of his service-connected disabilities. The Board finds that the January 2018 private opinion report is adequate because the examiner examined the Veteran, reviewed the medical history of the Veteran and discussed relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusion reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The January 2018 medical opinion is the most probative evidence of record. Therefore, the Board finds that preponderance of the evidence is for the claim and entitlement to service connection for GERD is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Cervical Spine The Veteran asserts that he has a neck disability that is related to his active service. Service treatment records (STRs) are silent for complaints treatment, or diagnosis of a cervical spine disability during service. Additionally, at the Veteran’s January 2016 separation examination, the Veteran reported that his neck and spine were normal; and clinical evaluation did not reveal any neck or spine abnormalities. However, the Veteran has reported that he first experienced neck pain in service and that those symptoms have continued since that time. The Board noted that the Veteran is competent to report when he first experienced neck pain, and that his pain has continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. The Veteran was afforded a VA cervical spine examination in January 2016. At that time, the examiner found that there was not current pathology to support a diagnosis of a neck disability. As noted above, the Veteran had service in Southwest Asia and has competently and credibly reported neck pain for which there is no underlying pathology to support a diagnosis of a cervical spine disability. However, joint pain is a sign or symptom of undiagnosed illness and/or medically unexplained chronic multisymptom illness for which service connection is presumed when a Veteran had service in Southwest Asia. 38 C.F.R. § 3.317 (2018). Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for neck pain is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for neck pain is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Bilateral Plantar Fasciitis The Veteran asserts that he should have a higher rating for his bilateral plantar fasciitis because his disability is worse than contemplated by the currently assigned rating. As a preliminary matter, while the Board notes the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), it finds that the holding is not applicable to the issue of plantar fasciitis. The Court in Correia held that the final sentence of 38 C.F.R.§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, plantar fasciitis does not require joint testing and/or range of motion testing. Additionally, in this case there is no joint affected by the plantar fasciitis. Therefore, while the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate, the Board does not find Correia to be applicable to this case. Thus, the Board finds the examination of record concerning plantar fasciitis to be adequate. Here, the Veteran was initially afforded a VA examination with regard to his bilateral plantar fasciitis in January 2016. At the examination, the Veteran reported that his bilateral foot disability was productive of pain following prolonged standing or walking. The Veteran indicated that he used a foot brace at night, but that he still experienced a lot of foot pain during evening hours. As a result of the pain, he was unable to stand or walk for long periods of time. On examination, the Veteran had right foot pain on use and manipulation, but there was no evidence of left foot pain on use and manipulation. There was no evidence of swelling or calluses, and the examiner noted that bilateral foot orthotics provided relief from pain. The Veteran had extreme tenderness of the plantar surface on his right foot, which was improved by orthotics. There was evidence that the Veteran had decreased longitudinal arch height on weight-bearing, marked deformity, and marked pronation of both foot. There was no evidence that his weight-bearing lines fell over or medial to the great toes, or that he had a deformity other than pes planus that resulted in alteration of the weight-bearing lines. There was no evidence of inward bowing of the achilles tendon or marked inward displacement and severe spasm of the achilles tendon. With regard to functional loss, the examiner reported that the Veteran’s right foot disability interfered with his ability to stand, but no functional loss was noted with regard to his left foot. The examiner indicated that the Veteran did not use any devices to assist with locomotion, and no other pertinent findings were noted. A review of the record shows that the Veteran receives treatment for various disabilities. However, there is no indication from the record that his bilateral plantar fasciitis is worse than noted at the VA examination of record. The Board finds that the Veteran is entitled to an initial rating of 30 percent for his bilateral foot disability. In this regard, the evidence of record shows that he experiences pain on manipulation of his right foot that is accentuated by use, and marked deformity of both feet. The Board acknowledges that there is no indication of swelling or characteristic callosities, but finds that the Veteran’s symptoms of his bilateral foot disability more closely approximate those associated with a severe bilateral foot disability. Therefore, an initial rating of 30 percent for a bilateral foot disability is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2018). Consideration has been given to assigning a rating in excess of 30 percent for the Veteran’s bilateral foot disability. However, there is no indication from the record that the Veteran’s symptoms are pronounced. The Veteran does not experience marked pronation, marked inward displacement, severe spasm of the tendo Achilles on manipulation, or that his symptoms are not improved with orthotics. In fact, the January 2016 VA examiner specifically noted that the Veteran’s symptoms were improved with orthotics. Therefore, entitlement to an initial rating in excess of 30 percent for a bilateral foot disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2018). The Board has considered assignment of a higher rating under another diagnostic code, to include separate ratings for each foot. However, there is no indication from the record that the Veteran’s symptoms are not adequately contemplated by the rating criteria under Diagnostic Code 5276. In this regard, the evidence does not show that the Veteran’s left foot disability has been characterized by more than mild symptomatology. To that end, there was no evidence of left foot pain or swelling on examination, and the examiner reported that the Veteran’s left foot pes planus did not cause functional loss. Further, there is no evidence of pes cavus, or symptoms significant enough to warrant a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284, used for evaluation of foot injuries. Therefore, the Board finds that a higher rating under any other diagnostic code is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5284 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is for the claim of entitlement to an increased rating for a bilateral foot disability and as such, a 30 percent rating for that disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Right Shoulder, Knee, and Ankle Scars The Veteran asserts that he is entitled to a higher rating for scars of the right shoulder, right knee, and right ankle, as his symptoms are worse than those contemplated by the currently assigned rating. A January 2016 VA examination report indicates that the Veteran had a right shoulder linear scar that was neither painful nor unstable, and measured at 12 centimeters (cm) in length. The Veteran also had right knee and right ankle linear scars that measured at 2 cm, 2 cm, 3 cm, and 7 cm in length, respectively. None of those scars were painful or unstable. The examiner noted that none of the Veteran’s scars were due to burns. The VA examination report notes that there were no superficial non-linear scars; no deep non-linear scars; and no hyperpigmentation was noted. The examiner reported that the scars did not result in limitation of function, and no other pertinent findings were noted. At a February 2018 VA examination, the examiner commented that the Veteran’s right knee scar had a total area of less than 6 square inches that was neither painful nor unstable. A review of the record shows that the Veteran receives treatment for various disabilities. However, there is no indication from the record that his right shoulder, right knee, and right ankle scars are worse than noted at the VA examinations of record. The Board finds that the Veteran is not entitled to an initial compensable rating for his right shoulder, right knee, and right ankle scars. In this regard, there is no evidence that any of the scars are deep, non-linear, or of an area of 6 square inches or greater. Moreover, there is no evidence that any of the scars are painful or unstable. Therefore, the Board finds that an initial compensable rating is not warranted at any point during the period on appeal. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for scars of the right shoulder, knee, and ankle is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Right and Left Upper Extremity Carpal Tunnel Syndrome The Veteran asserts that he is entitled to a higher rating for his bilateral carpal tunnel syndrome as his symptoms are worse than those contemplated by the currently assigned rating. At a January 2016 VA examination, the examiner diagnosed right and left upper extremity carpal tunnel syndrome. The Veteran reported that his hands would occasionally go numb. The Veteran reported moderate constant pain, mild paresthesias and/or dysesthesias, and moderate numbness in his right hand. No pain, or paresthesias and/or dysesthesias were reported in his left hand, and he indicated that numbness was moderate in severity. On examination, muscle strength was normal with no evidence of muscle atrophy, but the Veteran showed decreased sensation bilaterally. Bilaterally, Phalen’s test was positive, and Tinel’s sign was negative. The examiner characterized the Veteran’s bilateral carpal tunnel syndrome as being productive of mild incomplete paralysis of the median nerve. The Veteran reported that he did not use any assistive devices. The examiner reported that the Veteran’s bilateral carpal tunnel syndrome did not impact his ability to work, and no other pertinent findings were noted. A review of the record shows that the Veteran receives treatment for various disabilities. However, there is no indication from the record that his bilateral carpal tunnel syndrome is worse than noted at the VA examination of record. The Board finds that the Veteran is entitled to an initial rating of 30 percent, but no higher, for his right upper extremity carpal tunnel syndrome. In this regard, the Board finds that the Veteran’s right upper extremity carpal tunnel syndrome disability picture most nearly approximates that of moderate impairment under Diagnostic Code 8515. To that end, the January 2016 VA examination report shows that the Veteran experienced moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Additionally, the Veteran had decreased sensation in his right hand. Although the examiner reported that the Veteran’s right upper extremity carpal tunnel syndrome was productive of mild incomplete paralysis of his right median nerve, the Board finds that his overall disability picture is moderate in severity. Therefore, an initial rating of 30 percent for right upper extremity carpal tunnel syndrome is warranted. 38 C.F.R. § 40124a, Diagnostic Code 8515 (2018). Consideration has been given to assigning a higher rating for right upper extremity carpal tunnel syndrome. However, the Veteran has not experienced severe incomplete paralysis of the right median nerve. In this regard, the January 2016 VA examiner characterized the Veteran’s right hand carpal tunnel syndrome as only mild incomplete paralysis of the median nerve. Further, there is no evidence that pain, numbness, or paresthesias and/or dysesthesias has been severe. Moreover, strength, and reflexes were normal on examination. Thus, the Board finds that a rating in excess of 30 percent for right upper extremity carpal tunnel syndrome is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board finds that an initial rating in excess of 10 percent for left upper extremity carpal tunnel syndrome is not warranted. In this regard, the January 2016 VA examination report indicates that the Veteran did not experience left hand pain, or paresthesias and/or dysesthesias. The VA examination report also indicates that the Veteran’s strength and reflexes of the upper left extremity were normal on objective examination. Moreover, the January 2016 VA examiner characterized the Veteran’s disability as mild incomplete paralysis of the median nerve. Although the Veteran reported moderate numbness and showed decreased sensation, the Board does not find that the Veteran’s overall left upper extremity carpal tunnel syndrome symptomatology more nearly approximated moderate severity at any point during the appeal period. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2018). The Board has reviewed other Diagnostic Codes pertaining to upper extremity neurological disabilities under 38 C.F.R. § 4.124a. As the evidence is clear that the rated disabilities stems from median nerve impairment, Diagnostic Code 8515 is the appropriate provision under which to rate the Veteran’s disabilities. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is for the claim of entitlement to an increased initial rating for right upper extremity carpal tunnel syndrome and as such, a 30 percent rating for that disability is warranted. However, the Board finds that the preponderance of the evidence is against the claim of entitlement to an increased initial rating for left upper extremity carpal tunnel syndrome and as such, an increased rating for that disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the Board may adjudicate the remaining claims on appeal. Service Connection – Chest Disability The Veteran asserts that he has a chest disability that is related to his active service. The Veteran’s January 2016 separation health assessment examination report reflects that the Veteran experienced chest pain. At a January 2016 VA muscle injuries examination, the examiner reported that there was no evidence of a chest disability related to a muscle injury, as there was no pathology to render such a diagnosis. The Board finds that the current evidence of record is not sufficient to decide the claim. In this regard, although the January 2016 VA examiner found that the Veteran did not have a chest disability related to a muscle injury, it is possible that the Veteran’s chest pain may be etiologically related to non-muscle injury. To date, no VA medical opinion has been obtained with regard to whether the Veteran’s has a chest disability that is unrelated to a muscle injury. Moreover, although the claim has been developed on a theory of direct service-connection, there is evidence that any such chest disability may be related to the Veteran’s service-connected disabilities. Therefore, the Board finds that the Veteran should be afforded another VA examination to determine the nature and etiology of his claimed chest disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Rating – Right Knee Disability In February 2018, the Veteran was afforded a VA examination to access the severity of his service-connected right knee disability. A review of that examination report shows that the findings reported are not in compliance with the requirements outlined in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his right knee disability. Increased Rating – Right Ankle Disability In January 2016, the Veteran was afforded a VA examination to access the severity of his service-connected right ankle disability. A review of that examination report shows that the findings reported are not in compliance with the requirements outlined in Correia, 28 Vet. App. 158. Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his right ankle disability. Increased Rating – Headaches The Veteran was most recently afforded a VA examination in January 2016 in connection with his claim for headaches. However, since that time the Veteran has submitted private treatment records that show that his tension headache disability may have increased in severity. Thus, it is unclear as to whether the January 2016 VA examination report adequately reflects the current severity and manifestations of the Veteran’s service-connected tension headaches. Therefore, the Board finds that an additional VA examination is needed. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently present chest disability, to include chest pain. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present chest disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present chest disability was caused or chronically worsened by any of the Veteran’s service-connected disabilities, to include medication taken for such. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his right knee disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include all information required by Correia and Sharp. 4. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his right ankle disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include all information required by Correia and Sharp. 5. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his tension headache disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include a determination as to whether the Veteran’s headaches are productive of severe economic inadaptability. 6. Confirm that the VA examination reports comport with this remand and undertake any other development determined to be warranted. 7. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel