Citation Nr: 18139472 Decision Date: 09/28/18 Archive Date: 09/27/18 DOCKET NO. 10-44 996 DATE: September 28, 2018 ORDER The December 2015 Board decision is vacated as to the final disposition on a claim of service connection for gastroesophageal reflux (GERD). Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to an initial rating greater than 10 percent for bilateral plantar fasciitis for the period prior to March 4, 2013 is denied. Entitlement to an initial rating of 30 percent for bilateral plantar fasciitis is granted, effective March 4, 2013. Entitlement to an initial rating higher than 30 percent for bilateral plantar fasciitis from that date forward is denied. REMANDED Entitlement to service connection for residuals of cervical strain, to include degenerative disc disease (DDD), is remanded. Entitlement to service connection for a gastrointestinal (GI) disorder (other than duodenitis and gastroesophageal reflux disease (GERD)), to include dyspepsia, gastritis, hiatal hernia and sigmoid colon diverticulitis, is remanded. Entitlement to service connection for headaches with left eye sensation/pressure is remanded. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is remanded. Entitlement to an initial rating greater than 10 percent for duodenitis is remanded. FINDINGS OF FACT 1. The Veteran had a hearing before the undersigned Veterans Law Judge in September 2015. 2. In December 2015 the Board issued a final decision on the issue of entitlement to service connection for GERD, which was signed by someone other than the undersigned, in contravention with VA regulations. 3. The weight of the evidence shows that the Veteran’s GERD is due to or the result of the use of NSAIDs used to treat a service-connected disability. 4. The preponderance of the evidence of record shows that prior to March 4, 2013, the Veteran’s plantar fasciitis manifested with moderate severity. 5. The Agency of Original Jurisdiction (AOJ) granted the Veteran the maximum allowable rating for his bilateral plantar fasciitis, effective in June 2017. The Board finds that it is factually ascertainable that the disorder manifested at the maximum rate as of March 4, 2013. CONCLUSIONS OF LAW 1. The criteria for vacatur of the December 2015 decision on the issue of entitlement to service connection for GERD have been met. 38 U.S.C. § 7014 (a) (West 2012); 38 C.F.R. §§ 20.707, 20.904 (2017). 2. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. § 3.310. 3. The criteria for an initial rating higher than 10 percent for bilateral plantar fasciitis for the period prior to March 4, 2013 is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 4. Affording the Veteran all benefit of the doubt, the criteria for an initial rating of 30 percent for bilateral plantar fasciitis were met, effective March 4, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5284. 5. The criteria for an initial rating higher than 30 percent for bilateral plantar fasciitis from March 4, 2013 forward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5284. REASONS AND BASES FOR FINDING AND CONCLUSIONS 1. Vacatur of December 2015 Board decision In September 2015 the Veteran presented testimony at a hearing before the undersigned as to all issues on appeal. In a December 2015 Board decision signed by another Veterans Law Judge, a final decision was made on his claim of entitlement to service connection for GERD. VA regulations stipulate that the Member (Veterans Law Judge) presiding over the hearing is to render the final disposition in a case. 38 C.F.R. § 20.707. As that did not occur here, the decision rendered by a Veterans Law Judge other than the undersigned was inappropriate and Vacatur is warranted. The issue will be considered again in the instant decision. 2. Entitlement to service connection for GERD is granted. The Veteran seeks to establish his entitlement to service connection for GERD resulting from use of NSAIDs to treat service-connected disability. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service. 38 U.S.C. § 1110. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Briefly summarized, the Veteran is service-connected for pes cavus for which he has been prescribed NSAIDs to treat his symptoms. VA clinic records in 1991 reflect an examiner assessment that the Veteran’s use of Motrin (an NSAID) was causing gastric disturbance. In April 2009, a private medical examiner indicated that the Veteran was suffering from dyspepsia and GERD with gastrointestinal symptoms involving daily episodes of heartburn, intermittent epigastric distress, loose stools and bloating. It was indicated that an upper endoscopy revealed hiatal hernia and gastro-duodenitis. The private examiner opined that the Veteran’s upper endoscopy findings were most likely related to his chronic NSAIDs use. The Veteran underwent VA Compensation and Pension (C&P) examination in May 2009. This examiner found that the diagnosis of duodenitis had been established by the endoscopy findings, and that such diagnosis could be caused or aggravated by the Veteran’s use of NSAIDs used to treat his service-connected pes cavus. The examiner did not provide an opinion with respect to GERD as the examiner found no evidence of this disorder on examination. A December 2009 AOJ rating decision awarded service connection for duodenitis as secondary to medication taken for service-connected pes cavus. The AOJ denied service connection for GERD on the basis that there was no current disability. Thereafter, a March 2011 VA clinic record reflects that upper gastrointestinal (GI) series testing was interpreted as showing mild GERD. Thus, the record reflects that the diagnosis of GERD provided by the private examiner in April 2009 has been confirmed by upper GI series testing. The April 2009 private examiner opined that the Veteran’s GERD was caused by his NSAIDs use. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran manifests GERD which is proximately due to NSAIDs used to treat service-connected disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim of entitlement to service connection for GERD is granted. 3. Entitlement to an initial rating greater than 10 percent for the period prior to March 4, 2013 is denied; entitlement to an initial rating of 30 percent for bilateral plantar fasciitis is granted, effective March 4, 2013. Entitlement to an initial rating greater than 30 percent for plantar fasciitis from that date forward is denied. Increased Ratings Generally Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999). If two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Pyramiding, which is the evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Rating Criteria Foot disabilities are governed by the provisions of 38 C.F.R. § 4.71a, DCs 5276 through 5284. The AOJ evaluated the Veteran’s disability under DC 5284, foot injuries, other (02/26/2013 Rating Decision-Codesheet), though none of the referenced codes specifically lists plantar fasciitis. See generally¸ 38 C.F.R. § 4.27. Under those criteria, a severe foot injury warrants the maximum, 30 percent, rating; a moderately severe injury, 20 percent; and, a moderate injury, 10 percent. 38 C.F.R. § 4.71a, DC 5284. If there is actual loss of use of a foot, a 40 percent rating applies. Id., Note. Discussion The Veteran’s foot disability was initially service connected as pes cavus with a noncompensable rating, effective in January 1990. See 03/18/1991 Rating Decision. A compensable rating of 10 percent was granted in 2008. See 06/10/2008 Rating Decision. Subsequent to development of Morton’s neuroma on the right foot, service connection was granted for that disorder and a 10 percent rating assigned, effective May 2009. See 08/13/2012 Rating Decision. The Veteran specifically applied for service connection for bilateral plantar fascitis as due to his service-connected Morton’s neuroma in November 2012 (11/30/2012 VA 21-526b). Hence, November 30, 2012 is the earliest effective date that can apply to any rating of the plantar fascitis. See 38 C.F.R. § 3.400. Service connection was granted for bilateral plantar fascitis with assignment of an initial 10 percent rating, effective November 30, 2012. See 02/26/2013 Rating Decision. Further, the AOJ recognized the prospect for pyramiding and directed that the Morton’s Neuroma and plantar fasciitis be rated together, as the main facet of both disorders is pain. See 05/20/2015 Deferred Rating. VA outpatient records dated prior to November 2012 note recurrent plantar fasciitis but without notation of any findings that would indicate symptomatology greater than mild severity. See 06/13/2012 Medical Treatment-Government Facility, P. 2. The June 2012 examination report reflects no notations of plantar fasciitis involvement, the examiner noted that there were no other foot injuries, and that x-rays were normal. See 06/11/2012 VA examination, 1st Entry, P. 7. The February 2013 VA examination report (02/25/2013 VA Examination, P. 27-37) reflects the Veteran’s complaints of constant right foot pain that worsened on walking long distances and prolonged standing. He also complained of bilateral plantar foot pain. Physical examination revealed shortened plantar fascia of each foot. The examiner noted that there was no evidence of weakness of either foot, and that there was no other foot injury. Id., P. 34-35. The examiner also noted the Veteran’s use of shoe inserts, and that he had not lost the use of either extremity. The Board finds that the objective findings on clinical examination show that the Veteran’s plantar fasciitis manifested with moderate severity as of the February 2013 examination. 38 C.F.R. §§ 4.1, 4.10, 4.71a, DC 5284. The December 2015 Board remand directed that current examinations be conducted. Upon receipt of the June 2017 examination report, the AOJ granted the maximum allowable rating for the plantar fascitis, and reduced the rating for the Morton’s neuroma rating to 0 percent, as it was excised in September 2013, and there were no residuals. These changes were both effective in June 2017, the date of the examination. See 06/29/2017 C&P Examination, 4th Entry, P. 4; see also 04/26/2018 Rating Decision-Narrative. The Veteran has not disputed the change in rating for the Morton’s neuroma and, in any case, it does not constitute a reduction under 38 U.S.C. § 3.105(e) as it did not lessen the Veteran’s combined rating (in fact it went up) and thus there was no reduction in “compensation payments currently being made.” Although the Veteran’s foot disability was previously evaluated under DC 5276, pes planus, the June 2017 examination report reflects that other than pain at the plantar surface, the examiner noted the absence of any symptoms related to pes planus or pes clavus (claw foot). Id., P. 2-4. While the primary symptom of the Veteran’s plantar fascitis is pain, the examiner noted that it did not result in functional loss, such as weakness, or limitation of motion. The examiner also noted that the Veteran had not lost the use of either foot. Id., P. 5-6. In light of all of these factors, the Board finds that the preponderance of the evidence shows that the Veteran has been appropriately compensated for the impairment due to his bilateral foot disability. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5284. Hence, the requirements for a rating higher than 30 percent have not been met as concerns that latter part of the rating period. There remains the issue, however, of whether the plantar fasciitis manifested at the maximum rate prior to the June 2017 examination. The Board notes a VA podiatry outpatient entry dated in 2013 showing a palpable and audible pop localized at the 3rd metatarsus interface that caused associated swelling of the plantar fascia with moderate to severe pain. See 04/26/2018 CAPRI, 1st Entry, P. 128. The general rule is that a rating is effective the date a claim is received or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400. Affording the Veteran all benefit of the doubt, the Board finds that the earliest date on which is factually ascertainable that the plantar fasciitis manifested with severe symptoms is March 4, 2013, the date of the entry. Hence, the Board allows the maximum rating as of that date. 38 C.F.R. §§ 3.400, 4.3. REASONS FOR REMAND 1. Entitlement to service connection for residuals of cervical strain, to include cervical DDD/posterior is remanded. The Board cannot make a fully-informed decision on this issue because the VA examiner’s findings and opinion requires clarification. The examiner opined that it was at least as likely as not that the Veteran’s cervical strain, for which service connection has been granted, is causally connected to his active service, but not the cervical DDD. The examiner reasoned that there was no evidence that the DDD manifested during active service or within one year. While that may suffice for direct service connection, the opinion does not address whether the now-service-connected cervical strain accelerated the development of cervical DDD or chronically worsens it. Neither did the VA examiner address the positive nexus opinion of the Veteran’s private physician, R.I., M.D., as the December 2015 Board remand directed (06/29/2017 C&P Examination, 3rd Entry, P. 2-3). Hence, clarification is needed. 2. Entitlement to service connection for a GI disorder (other than duodenitis and GERD), to include dyspepsia, gastritis, hiatal hernia and sigmoid colon diverticulitis, is remanded. The examination report reflects the examiner’s opinion that there was no relationship between the Veteran’s service-connected duodenitis and GERD, as dyspepsia is not a medical condition but a group of symptoms (07/06/2017 C&P Examination, 2nd Entry, P. 3). The examiner did not, however, opine on whether any of the dyspepsia symptoms are part of the Veteran’s gastritis or GERD disability picture, or whether they result in functional impairment. Accordingly, further clarification is needed. The examiner also opined that it was not at least as likely that the diverticulitis and hiatal hernia were due to the NSAIDs prescribed for the Veteran’s disabilities, as there was no physiological relationship between them. The examiner did not, however, address whether the NSAIDs chronically worsened either or both disorders. See Gill v. Shinseki, 26 Vet. App. 386, 391 (2013. Hence, this also requires clarification. 3. Entitlement to service connection for headaches with left eye sensation/ pressure is remanded. The examiner rendered a negative nexus history concerning the Veteran’s headaches. Regarding direct service connection, the examiner noted that there was no evidence of treatment for headaches during active service, but did not address the fact that he sought treatment on multiple occasions in 1991 and that within a few months of his separation from active service the Veteran complained of a 4-year history of headaches. The examiner also opined that it was not at least as likely that the Veteran’s migraine headaches were due to his cervical spine disorder, as there is no physiological relationship. The Board infers that the examiner’s opinion addressed a potential relationship between the Veteran’s migraines and the service-connected cervical strain, and not the contested claim of cervical spine DDD with radiculopathy. The resolution of the previously discussed development of that claim will also resolve this issue. Further, the examiner did not discuss the positive nexus opinion of Dr. RL. 4. Entitlement to service connection for bilateral CTS is remanded. The VA examiner did not discuss the two private nexus opinions that opined that the Veteran’s bilateral CTS is causally connected to the duties the Veteran performed in service, as instructed in the Board remand. 5. Entitlement to an initial rating greater than 10 percent for duodenitis associated with medications for service-connected disabilities is remanded. The proper evaluation of this disability is intertwined with the GI development discussed earlier. Hence, it too must be remanded. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine DDD is at least as likely as not proximately due to the service-connected cervical spine strain; or, if not, whether it is at least as likely as not aggravated beyond its natural progression by the service-connected cervical spine strain. If so, please provide a baseline level of disability prior to aggravation, in terms of a percentage, or explain clearly why this is not possible. The clinician’s rationale and explanation should address the positive nexus opinions rendered by the Veteran’s private physician. 2. Obtain an addendum opinion from an appropriate clinician that addresses whether the group of symptoms called dyspepsia is part of the disability picture of the Veteran’s service-connected duodenitis or GERD, or both. The examiner should also state whether it is at least as likely as not that the NSAIDs prescribed for the Veteran’s service-connected disabilities have chronically worsened either the diverticulitis or hiatal hernia, or both. If so, please provide a baseline level of disability prior to aggravation, in terms of a percentage, or explain clearly why this is not possible. 3. Obtain an addendum opinion from an appropriate clinician that addresses whether it is at least as likely as not that the Veteran’s 1991 complaints of a 4-year history of headaches is causally connected to his active service? If the answer is no, then see Paragraph 1 above. The examiner’s rationale should address the positive nexus opinion of the Veteran’s private physician. 4. Obtain an addendum opinion from an appropriate clinician that addresses the opinion of the Veteran’s private physician, Dr. R.I., that the Veteran’s bilateral CTS is causally connected to the rigors of the duties he performed during his active service. The clinician is asked to indicate agreement or disagreement with Dr. R.I., and the reasons why. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder