Citation Nr: 20021470 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 12-26 629 DATE: March 25, 2020 ORDER Entitlement to a rating in excess of 10 percent for gastritis is denied. Entitlement to a rating in excess of 10 percent for left ankle sprain prior to June 18, 2018, is denied. Entitlement to a 20 percent rating, but no higher, for left ankle sprain effective June 18, 2018, is granted. Entitlement to a rating in excess of 10 percent for scar, status-post operative left inguinal hernia is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The record does not reflect that the Veteran’s gastritis manifested in dysphagia or that his symptoms were productive of considerable impairment of health. 2. Prior to June 18, 2018, the Veteran’s left ankle sprain was manifested by no more than moderate limitation of motion. 3. Since June 18, 2018, the Veteran’s left ankle sprain was manifested by marked limitation of motion, but did not result in ankylosis. 4. The most probative evidence of record shows the Veteran’s left inguinal hernia scar is less than 144 square inches in total area, is linear, not associated with underlying soft tissue damage, and is painful. 5. The weight of the medical and other evidence of record does not indicate the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. 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. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.114, Diagnostic Code 7346 (2019). 2. The criteria for a rating in excess of 10 percent for left ankle sprain prior to June 18, 2018, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2019). 3. The criteria for a 20 percent rating, but not higher, for left ankle sprain have been met from June 18, 2018. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2019). 4. The criteria for a disability rating in excess of 10 percent for scar, status-post operative left inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7801-7805 (in effect prior to August 13, 2018, and effective August 13, 2018). 5. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 2001 to August 2003 and from March 2005 to April 2007, with additional service in the Army National Guard. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Board remanded these claims in November 2015, May 2017, and October 2019. Increased Rating 1. Entitlement to a rating in excess of 10 percent for gastritis The Veteran asserts that the symptoms of his gastritis warrant a higher rating. Historically, a June 2009 rating decision granted service connection for gastritis and assigned a 10 percent rating effective April 21, 2007. In November 2012, the Veteran filed a claim for TDIU, and the RO reevaluated the Veteran’s gastritis. The Veteran’s gastritis is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7346 (2019). Under that code, a 60 percent rating is assigned 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 when there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. With two or more of the symptoms for the 30 percent evaluation of lesser severity, a 10 percent rating is warranted. During a December 2012 VA stomach and duodenal conditions examination, the Veteran reported heartburn associated with his gastritis. The Veteran’s treatment plan included continuous medication (omeprazole). He did not have incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. The examiner opined that the Veteran’s gastritis did not impact his ability to work. A January 2013 VA treatment record noted that the Veteran was on Protonix. He denied any nausea, vomiting, diarrhea or abdominal pain. In February 2015, the Veteran reported to his VA treatment provider that his acid reflux medication was not working. He had “doubled up” on his Pantoprazole along with “guzzling” Maalox without relief. VA annual examinations dated December 2015 and November 2016 were negative for change in appetite, dysphagia, heartburn, abdominal pain, belching/gas, hematemesis, hematochezia, melena, jaundice, hemorrhoids, or change in bowel habits. At his March 2017 Board hearing, the Veteran testified that his symptoms of gastritis had worsened. He reported that he experienced about eight occasions of waking from sleep due to acid reflux. The Veteran testified that, during those episodes, he would choke and could not breathe. He experienced bad stomach cramps. In the past three to four months, the Veteran also began to experience chest/sternum pain. He reported taking omeprazole twice daily. During an October 2018 VA gastritis examination, the Veteran endorsed symptoms of pyrosis, reflux, regurgitation, substernal pain, and four or more instances of sleep disturbance and nausea per year, with each episode lasting less than one day. There was no esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The examiner opined that the Veteran’s gastritis did not impact his ability to work. The evidence of record does not show that the above-listed criteria for a 30 percent rating have been met (or approximated) at any time during the evaluation period. Notably, the criteria for a 30 percent rating under Diagnostic Code 7346 are stated in the conjunctive and must all be met to warrant such rating. Although the medical and lay evidence reflects worsening of symptoms around 2017, the record does not reflect that the Veteran experienced dysphagia or that his symptoms were productive of considerable (large in extent) impairment of health. Indeed, no examiner has found that the Veteran’s gastritis had any impact on his ability to work. His symptoms and impairment shown are contemplated in the 10 percent rating assigned, as he has experienced two out of the three delineated symptoms of lesser severity. As such, a higher rating for gastritis is not warranted at this time. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2019). 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. 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 a higher rating for gastritis is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent prior to October 30, 2018, and 20 percent thereafter, for left ankle sprain The Veteran asserts that the severity of his left ankle sprain warrants a higher rating. His disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2019), pertaining to limited motion of ankle. Historically, a June 2009 rating decision granted service connection for left ankle sprain and assigned a 10 percent rating for moderate limitation of motion effective April 21, 2007. In November 2012, the Veteran filed a claim for TDIU, and the RO reevaluated the Veteran’s left ankle. In a December 2019 rating decision, the RO assigned a higher, 20 percent rating for marked limitation of motion effective the date of an October 30, 2018, VA examination. During a December 2012 VA examination, the Veteran did not report flare-ups. Range of motion testing showed left ankle plantar flexion to 45 degrees (normal) and dorsiflexion to 20 degrees (normal). There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions without additional loss of motion or functional impairment. There was no localized tenderness or pain on palpation of joints/soft tissue of either ankle. Muscle strength testing was normal. There was no laxity or ankylosis. The Veteran did not use assistive devices. The examiner opined that the Veteran’s ankle condition did not impact his ability to work. During his March 2017 Board hearing, the Veteran testified that the symptoms of his left ankle disability were “about the same” as they were “a couple years ago.” The Veteran reported stiffness and feelings of locking up once or twice a week. He also reported popping and cracking. A January 2018 ankle disability benefits questionnaire noted that the severity of the Veteran’s left ankle was “unchanged over the past 18 months.” The Veteran endorsed aching, rated as a 3 to 4 out of 10 in severity. He did not report flare-ups or functional loss of the ankle. Range of motion testing revealed dorsiflexion limited to 20 degrees and plantar flexion limited to 35 degrees. Pain was noted on examination on rest/non-movement during plantar flexion. There was no objective evidence of tenderness or pain on palpation or with weightbearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or limitation of motion. The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups or repeated use over a period of time, stating that “there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” Muscle strength was normal. There was no ankylosis. The examiner found that the ankle did not require any restrictions of job activities. An August 2018 VA physical therapy note indicated that, following a stroke on June 19, 2018, the Veteran fell twice. Physical examination revealed that the Veteran was not able to actively move the ankle joint. During an October 2018 VA ankle examination, the Veteran reported that the condition had gotten worse. His stroke had affected his left side. He began to wear an ankle-foot orthosis on left and had more pain with trying to walk with it. The Veteran described flare-ups with pain and swelling. Range of motion testing revealed dorsiflexion and plantar flexion were limited to 0 degrees. The examiner noted that the Veteran had a foot drop, which contributed to functional loss. He also had hypesthesia of the entire ankle. Pain was noted on examination on rest/non-movement. Pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Muscle strength was 0 out of 5. There was no muscle atrophy or ankylosis. Joint instability or dislocation was suspected. There was no laxity compared with opposite side. The Veteran used a wheelchair, brace, or cane for locomotion. In an addendum opinion, the examiner opined that the severity of the left ankle is a progression of the ankle sprain itself and is of mild to moderate severity from a functional standpoint. The medical and lay evidence of record reflects a worsening of left ankle symptoms prior to the October 30, 2018, award of increase. Specifically, the August 2018 treatment record showed a worsening since the Veteran was last examined in January 2018. The treatment record indicates that the Veteran’s left ankle mobility worsened following his stroke. Consequently, the Board finds that a 20 percent rating for marked limitation of motion is warranted the date he was admitted for his stroke, on June 18, 2018. Prior to that date, the Board finds that the Veteran’s level of left ankle impairment manifested in no more than moderate limitation of motion, and did not rise to the level contemplated by a 20 percent rating under Diagnostic Code 5271. Although the evidence reflects a decrease in range of motion between the December 2012 and February 2018 examinations, the limitation of motion was not “marked.” Dorsiflexion was shown to be normal throughout this period, and plantar flexion was shown to be, at worst, limited to 35 degrees in February 2018 (more than 75 percent of normal plantar flexion). No additional limitation of motion was noted with repetitive-use testing. Consequently, prior to June 18, 2018, the Board finds that his overall disability picture more closely approximates the criteria for 10 percent rating rather than a 20 percent rating. For the period beginning June 18, 2018, the 20 percent rating is the maximum schedular rating allowable for limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2019). Throughout the appeal, the evidence does not demonstrate ankylosis of the ankle joint, malunion of the Os calcis, or astragalectomy. Therefore, Diagnostic Codes 5270, 5272, 5273, and 5274 are not applicable. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court of Appeals for Veterans’ Claims (Court’s) holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the December 2012 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above. In particular, the examiner did not comment on whether there was pain on weight bearing. The January 2018 VA examiner indicated that there was pain on nonweight-bearing (at rest), but not with weight-bearing or with passive range of motion. Pain was noted on active plantar flexion by the January 2018 VA examiner. Regarding repeated use over time, although the January 2018 VA examiner stated that he could not provide an opinion unless an examination was conducted immediately after repeated use over time, the Board notes that the December 2012 and January 2018 VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the December 2012 and January 2018 VA examiners indicated that the Veteran did not report experiencing any flare-ups and so he did not provide an estimate as to functional impairment during flare-ups. There is no other evidence prior to June 2018 indicating that the Veteran experienced flare-ups or additional loss of motion or function. Therefore, the Board finds that December 2012 and January 2018 VA examinations, along with the other evidence of record, provide sufficient information so as to be compliant with the requirements of Correia and Sharp. In sum the Board finds that the evidence supports a higher, 20 percent rating from June 18, 2018. However, ratings in excess of 10 percent prior to that date and 20 percent since that date are not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5271. 3. Entitlement to a rating in excess of 10 percent for scar, status-post operative left inguinal hernia The Veteran seeks a higher rating for his service-connected left inguinal hernia scar. Scars, other than of the head, face, or neck, are evaluated under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, and 7805 (2019). Historically, a June 2009 rating decision granted service connection the left inguinal hernia scar and assigned a 10 percent rating for painful scar effective April 21, 2007. In November 2012, the Veteran filed a claim for TDIU, and the RO reevaluated the Veteran’s scar. The Board notes that VA amended the criteria for rating skin disabilities during the appeal period, effective August 13, 2018. Generally, a change in rating criteria during pendency of the claim applies prospectively if more favorable. As the Veteran’s appeal stems from a 2012 claim, both iterations of the diagnostic codes will be considered. Prior to August 13, 2018, Diagnostic Code 7801 directed that scars that are deep and nonlinear could be afforded a 20 percent or greater rating if of an area at least 12 square inches. Under Diagnostic Code 7802, scars that are superficial and nonlinear were afforded a maximum 10 percent rating if of an area of 144 square inches or greater. Diagnostic Code 7804 directed that a 10 percent evaluation is assigned where there are one or two scars that are unstable or painful; a 20 percent rating may be assigned where there are three or four scars that are unstable or painful; and a 30 percent rating may be assigned where there are five or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provided that an unstable scar is one where, for any reason, there is frequent loss of covering of skin. Note (2) to Diagnostic Code 7804 provided that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3) to Diagnostic Code 7804 provided that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Under Diagnostic Code 7805, other effects of the scars not considered under 7800-7804 should be rated under an appropriate diagnostic code. Effective August 13, 2018, Diagnostic Code 7801 directs that a 20 percent or greater rating is warranted for scars with underlying soft tissue damage of an area of at least 12 square inches. Diagnostic Code 7802 directs that a maximum 10 percent rating is warranted for scars that are not associated with underlying soft tissue damage of an area of 144 square inches. Diagnostic Codes 7804 and 7805 remained unchanged from the pre-August 13, 2018 rating criteria. Turning to the evidence of record, a December 2012 VA examination revealed a linear scar that measured 8 x 1 cm. The scar was not painful or unstable. The examiner opined that the scar did not impact his ability to work. During his March 2017 Board hearing, the Veteran testified that he experienced itching around the scar area and that the area around the scar became red sometimes. He denied it being painful. At an October 2018 VA scars examination, the Veteran reports pain at the inguinal region scar is burning at all times. The examiner noted that there were two separate scars; one measured 4 cm by .4 cm and the other measured 3 cm by .2 cm. The first scar was tender to palpation. Neither scar was unstable. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted. The evidence does not demonstrate that the Veteran has three scars that are unstable or painful or at least one scar that is both painful and unstable. Further, they are not of a sufficient area to warrant ratings under Diagnostic Codes 7801 or 7802. 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. 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 a higher rating for the left inguinal hernia scar is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to TDIU The Veteran asserts that he is unable to work due to his service-connected disabilities. As an initial matter, the Board notes that the Veteran meets the schedular criteria for TDIU during the period on appeal. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2019). He is service-connected for the following disabilities: bilateral pes planus, rated at 0 percent prior to March 14, 2017, and 30 percent thereafter; degenerative disc disease, L5/S1, with sciatica and sacroiliac joint dysfunction, rated at 20 percent; left leg radiculopathy, rated at 20 percent; left ankle sprain, rated at 10 percent prior to June 18, 2018, and 20 percent thereafter; right knee medial collateral ligament sprain, gastritis, painful scar status post-operative left inguinal hernia, left knee sprain, right and left foot plantar fasciitis, and tinnitus, all rated at 10 percent; and scars, status post left inguinal hernia repair, rated 0 percent disabling from October 30, 2018. His ratings combine to a 70 percent rating from June 30, 2011, and a 90 percent rating from March 14, 2017. The Veteran’s November 2012 application for TDIU indicated that, subsequent to his discharge from active duty in April 2007, he worked as a supervisor at an oil shop, as a poker dealer at a casino, and finally as a manager at a newspaper business. The Veteran reported that he last worked in August 2009. In October 2013, the Veteran filed a claim for Social Security Administration (SSA) benefits, in which he further described his previous duties. The Veteran specified that, while working at the newspaper business, he did not use machines, tools or equipment. He spent 1 hour per day walking and standing, 5 hours a day sitting or handling small objects, and no time climbing, kneeling, crouching, crawling, handling large objects, or reaching. He performed writing and completed reports. As a poker dealer, he dealt poker and served food and drinks to players. He spent 3 hours walking, 4 hours sitting, and no time standing, climbing, kneeling, crouching, handling big objects, reaching, or writing. In a January 2014 letter, the Veteran’s vocational counselor opined that the Veteran could work but that his academic progress was not good. He had developed the objective of Veterinary Technician in July 2012, but he had not attended his training since fall of 2012. The Veteran had told the vocational counselor that it was because he was waiting for his transcript from Kentucky. A January 2014 SSA determination found that the Veteran was not unable to work. The decision noted that the Veteran reported being unable to work because of back, bilateral knee, and foot injuries, as well as hearing loss and tinnitus. SSA stated that the medical evidence showed that although the Veteran was experiencing pain in his back, he was able to sit, stand, bend, and walk well enough to do some types of work. Although he had pain and discomfort in his knees, he could move them well enough to do some types of work. The Veteran could hear and understand most conversation at normal volume. Further, medical evidence did not show any other impairments which kept the Veteran from working. During the March 2017 Board hearing, the Veteran testified that he stopped working around February 2015 or 2016 when he broke his femur, a nonservice-connected disability. He had completed one year of college. He described his previous work history as primarily “manual labor,” including jobs in construction, truck driving, stocking, and at an auto shop. Many VA examiners have also provided opinions on the impact the Veteran’s disabilities have on his employability throughout the appeal period. An August 2012 VA examiner stated that the Veteran’s tinnitus impacted his work in that he had to turn the volume up on things or ask people to repeat themselves when he experienced ringing in the ears. In February 2018, VA examiners opined that the Veteran’s feet and knee disabilities allowed for medium work (exerting 20 to 50 pounds of force occasionally, 10 to 25 pounds of force frequently, and up to 10 pounds of force constantly to move objects). His back and radiculopathy disabilities allowed for the performance of light work (exerting up to 20 pounds of force occasionally, up to 10 pounds of force frequently, and a negligible amount of force constantly to move objects). VA examiners in February 2018 and October 2018 opined that there were no work restrictions due to his gastritis or left inguinal hernia scars. The October 2018 ankle examiner opined that the Veteran’s pain limited the time he could stand and walk with overlapping symptoms from his nonservice-connected stroke. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected disabilities for any period. The Veteran’s testimony indicates that he was able to obtain employment following his 2012 claim for TDIU. He further testified that he stopped working in 2015 or 2016 due to a nonservice-connected disability. Finally, vocational specialists and medical examiners have opined that the Veteran’s disabilities, separately and in combination, do not preclude him from obtaining or maintaining substantially gainful employment. Their opinions are consistent with the Veteran’s own description of his work history, which indicates that he can work at jobs that are not physical labor intensive. The Board acknowledges that the evidence of record reflects that the service-connected back, radiculopathy, knee, ankle and foot disabilities, especially in combination, have a negative impact on the Veteran’s ability to perform more strenuous work. However, the Board notes that the degree of occupational and functional impairment caused by those service-connected disabilities has been analyzed in the schedular ratings assigned to each disability. In addition, the degree of occupational and functional impairment caused by all service-connected disabilities has been analyzed in a combined schedular rating of least 70 percent from June 30, 2011, and a 90 percent rating from March 14, 2017. For those reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.