Citation Nr: 20032971 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 17-10 913A DATE: May 12, 2020 ORDER 1. Entitlement to a disability rating in excess of 10 percent for esophagitis is denied. 2. Entitlement to an initial 10 percent disability rating, but no higher, for right ankle status post achilles tendon repair for the entire appeal period is granted. 3. Entitlement to an initial 10 percent disability rating, but no higher, for residuals, left ankle sprain for the entire appeal period is granted. FINDINGS OF FACT 1. Esophagitis is not manifested with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 2. Affording the Veteran the benefit of the doubt, for the entire period on appeal, the right ankle disability is manifested by pain but not manifested by marked limitation of motion. 3. Affording the Veteran the benefit of the doubt, for the entire period on appeal, the left ankle disability is manifested by pain but not manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for esophagitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code (DC) 7399-7346. 2. The criteria for an initial disability rating of 10 percent, but no higher, for a right ankle disability has been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5271. 3. The criteria for an initial disability rating of 10 percent, but no higher, for a left ankle disability has been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from April 1993 to April 2013. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in March 2020. The Veteran is represented by the Military Order of the Purple Heart, who was not present at the hearing. The Veteran was willing to have his hearing without representation. A transcript of the hearing was prepared and associated with the claims file. Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. In disability rating cases, the VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” In determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.40, consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Furthermore, under 38 C.F.R. § 4.45, functional loss, due to weakened movement, excess fatigability, and incoordination must also be considered. But pain that does not result in additional functional loss does not warrant a higher rating. Disability of the musculoskeletal system is primarily the inability due to damage or infection in the parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 1. Entitlement to disability rating in excess of 10 percent for esophagitis The Veteran believes that his disability rating should be higher than 10 percent for his esophagitis. The Veteran stated that he has difficulty swallowing, left arm pain or soreness on a regular basis, and it impairs his sleep because he wakes up several times a night with burning in his throat. See June 2014 Notice of Disagreement. During the March 2020 Board hearing, the Veteran testified that he self-treats his disability using elevation and Tums. He testified that laying on his right side will cause acid reflux. He will usually get up a couple of times a night, take Tums, and then try to go back to sleep. He said that he has issues after eating and if he sits down after eating, it will start to come up. He stated that it happens any time he eats a big meal. He confirmed that he had swallowing difficulties, heartburn, and regurgitation with substernal or arm or shoulder pain. The Veteran’s esophagitis is rated under DC 7399-7346 under hiatal hernia. See 38 C.F.R. § 4.114, DC 7346. A 10 percent disability rating is warranted with two or more of the symptoms for a 30 percent disability rating with less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum schedular 60 percent disability rating is warranted 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. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for esophagitis. The reasons follow. The preponderance of the evidence is against a finding that the Veteran’s esophagitis results in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, to warrant a 30 percent rating. At worst, the evidence shows the Veteran’s esophagitis is manifested with infrequent episodes of epigastric distress with pyrosis and regurgitation. The Veteran was afforded a VA examination in November 2013. At that time, the examiner noted that the Veteran had GERD and reflux esophagitis. The examiner documented that the Veteran had the following symptoms of pyrosis, reflux, regurgitation, sleep disturbances caused by esophageal reflux, and mild nausea. The Veteran was seen at the San Antonio Military Treatment Facility in June 2017. During his medical visits, the Veteran complained of a burning sensation, burping, mid-chest pain, and coughing. He reported not having dysphagia or pain on swallowing, nausea, vomiting, hematemesis, or abdominal pain. At the time, the Veteran reported he treated his GERD by using Tums. At a VA Decision Review Officer conference in May 2018, the Veteran reported that his acid reflux was worse; he was getting up nightly and getting his work schedule changed to accommodate for the lack of sleep. The June 2018 VA examination shows that the Veteran had infrequent episodes of epigastric distress, pyrosis, and reflux. The examiner documented that the objective findings confirmed no reflux demonstrated on the barium swallow testing. Furthermore, the examiner stated that the Veteran’s current historical statements (and those of his mother’s) were not supported by or corroborated by the available clinical evidence and are of insufficient reliability to be utilized for rating purposes. The record does not show that the Veteran’s symptoms are productive of considerable impairment of health. Although the Veteran sought medical assistance for his esophagitis in 2017, by the time of the Board hearing, the Veteran testified that he could self-medicate. The Board finds this is evidence against a finding that the Veteran has considerable impairment of health. Additionally, while the record shows that the Veteran has several symptoms of GERD, it is not manifested with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. In sum, the evidence does not show that a disability rating in excess of 10 percent for GERD is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. - 3. Compensable ratings for the right and left ankle disabilities The Veteran testified at the Board hearing that he is a hospital chaplain and part of his job duties is to walk around the hospital. He said if one of his ankles starts to hurt, he finds himself favoring the other leg, and he has to sit down. He stated that his ankle pain does not prevent him from walking. He testified that the pain comes from use and if he is sitting in a chair, he does not have pain. He said it is not continuous pain and does not occur daily, just if he walks. The Veteran’s right and left ankle disabilities are currently rated as noncompensable under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is warranted if the limitation of motion in the ankle is moderate. A 20 percent rating is warranted if limitation of motion in the ankle is marked. The terms “moderate” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is in favor of a disability rating of 10 percent but no higher for the Veteran’s right and left ankle disabilities. The reasons follow. At a November 2013 VA examination, the Veteran reported intermittent bilateral ankle pain with stiffness. The Veteran’s right and left ankle plantar flexions were to 30 degrees and his right and left ankle dorsiflexion was to 20 degrees or greater. There was no objective evidence of painful motion. The examiner indicated the Veteran experienced instability of gait on the left side. There was no pain on palpitation, ankylosis, tendon abnormalities, or deformity. The Veteran was seen at the San Antonio Military Treatment Facility in June 2017. The Veteran complained of pain in both ankles due to standing a lot throughout the day. The Veteran stated that he treated his ankles by using a hot tub and relaxation. The Veteran’s ankles were tender on palpation below the lateral malleolus and achilles tendons. However, there was no swelling, misalignment, crepitus on motion, or pain on motion noted upon examination. The Veteran’s motion was normal in both ankles. The ankles did not show laxity and an anterior drawer sign was not observed. There was no instability noted and the ankles were not tender on ambulation. The Veteran had another VA examination in June 2018. The Veteran reported pain when he gets up in the morning. He reported that his ankles hurt but he can perform his full-time job as a hospital chaplain. The Veteran did not report flare-ups of the ankle. The Veteran’s right ankle plantar dorsiflexion was to 15 degrees and plantar flexion was to 45 degrees. His left ankle plantar dorsiflexion was to 20 degrees and plantar flexion was to 45 degrees. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue on both ankles. Additionally, the examiner noted no ankylosis, or crepitus, and strength testing was normal. There was ankle instability or dislocation suspected on both ankles, but no laxity was noted after anterior drawer and talar tilt tests. Treatment records and VA examinations show the Veteran repeatedly reported pain in both ankles throughout the appeal period. Additionally, the November 2013 and June 2018 VA examination reports show that the Veteran had instability in his left ankle and both ankles, respectively. As such, the Board finds that the Veteran’s right and left ankle disabilities warrant a 10 percent disability rating for each ankle. However, an initial rating higher than 10 percent is not warranted, as the preponderance of the evidence is against a finding that the Veteran has marked limitation of motion of either ankle to warrant a 20 percent rating. In addition, the Board has considered whether a higher rating could be awarded under an alternative diagnostic code for the Veteran’s right and left ankles. 38 C.F.R. § 4.71a, Diagnostic Codes 5270 to 5274. Both the 2013 and 2018 examiners specifically noted that there was no ankylosis in either ankle. As such, Diagnostic Code 5270 does not apply. Similarly, it was not shown that the Veteran has been diagnosed with either os calcis or astragalus nor has he undergone an astragalectomy. These findings preclude consideration of Diagnostic Codes 5272, 5273, and 5274, respectively. Under 38 C.F.R. § 4.71a, there are no other diagnostic codes available to evaluate disabilities of the ankle. Finally, the Board has considered the effects of repeated use over time and flare-ups. The Board notes that the Veteran denied flare-ups at both the 2013 and 2018 VA examinations. The examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion during both the 2013 and 2018 examination. The Board finds that the preponderance of the evidence is against initial ratings in excess of 10 percent for the right and left ankles, as the 10 percent granted within the decision contemplates the pain and instability the Veteran experiences in each of his ankles. In sum, affording the Veteran the benefit of the doubt, the Veteran’s right and left ankle disabilities manifested in painful motion and instability in the left ankle, which warrants 10 percent disability ratings for each ankle. However, the preponderance of the evidence is against a finding that an initial disability rating in excess of 10 percent for the right and left ankle disabilities is warranted. As the preponderance of the evidence is against the claim for ratings higher than 10 percent, to this extent, the benefit of the doubt doctrine is not for application, and the Veteran’s claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, Associate 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.