Citation Nr: 21066058
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 10-32 158
DATE: October 28, 2021

ORDER

Entitlement to a disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to December 27, 2011, and in excess of 70 percent thereafter is denied.

Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) with irritable bowel syndrome (IBS) is denied.

Entitlement to a disability rating in excess of 10 percent for retained shrapnel of the left (minor) hand (thenar eminence) is denied.

Entitlement to a compensable disability rating for a left hand scar is denied.

Entitlement to a compensable disability rating for plantar fasciitis of the right foot with heel spur and fractured right fourth toe prior to November 15, 2011, and a disability rating in excess of 10 percent thereafter is denied.

REMANDED

Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative joint disease is remanded.

Entitlement to a compensable disability rating for residuals of a right ankle fracture is remanded.

FINDINGS OF FACT

1. For the period on appeal prior to December 27, 2011, the Veteran's PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity; the Veteran's PTSD symptoms did not result in occupational and social impairment with deficiencies in most areas.

2. For the period on appeal from December 27, 2011, the Veteran's PTSD symptoms has been productive of occupational and social impairment with deficiencies in most areas; the Veteran's PTSD symptoms do not result in total social and occupational impairment.

3. For the entire period on appeal, the Veteran's GERD with IBS has been productive of epigastric distress with dysphagia, reflux, and indigestion; there has been no vomiting, anemia, unintentional material weight loss, substernal arm or shoulder pain, or considerable impairment of health.

4. For the entire period of appeal, the Veteran's retained shrapnel of the left (minor) hand (thenar eminence) has been productive of occasional lowered threshold of fatigue and occasional fatigue-pain for the hypothenar muscle, without evidence of a gap between the thumb pad and the fingers with the thumb attempting to oppose the fingers, impaired muscle substance and function, limitation of motion, functional loss, fascial defect, loss of muscle strength, or muscle atrophy.

5. For the entire period on appeal, the Veteran's left hand scar, which measures 2.5 cm in length, is not adherent, tender to the touch, painful or unstable.

6. For the period on appeal prior to November 15, 2011, the Veteran's plantar fasciitis of the right foot with heel spur and fractured right fourth toe symptoms was asymptomatic.

7. For the period on appeal from November 15, 2011, the Veteran's plantar fasciitis of the right foot with heel spur and fractured right fourth toe symptoms has been productive of mild intermittent symptoms and pain, a non-permanent need for orthotics, and the undergoing of right plantar fasciitis release surgery with no residuals.

CONCLUSIONS OF LAW

1. The criteria for a disability rating greater than 50 percent for PTSD are not met for the period on appeal prior to December 27, 2011.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020).

2. The criteria for a disability rating greater than 70 percent for PTSD are not met from December 27, 2011.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020).

3. The criteria for a rating in excess of 10 percent for GERD with IBS are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346 (2020).

4. The criteria for a rating in excess of 10 percent for retained shrapnel of the left (minor) hand (thenar eminence) are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.73, Diagnostic Code 5309 (2020).

5. The criteria for a compensable initial rating for a scar on the Veteran's left hand are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.118, Diagnostic Code 7805 (2020).

6. The criteria for a compensable rating for plantar fasciitis of the right foot with heel spur and fractured right fourth toe are not met for the period on appeal prior to November 15, 2011.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5276, 5284 (2020).

7. The criteria for a rating in excess of 10 percent for plantar fasciitis of the right foot with heel spur and fractured right fourth toe are not met from November 15, 2011.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5276, 5269 (85 Fed. Reg. 230), 5284 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1986 to February 1987, and from April 1996 to February 2007, including service in Iraq.  His decorations include the Purple Heart and the Combat Action Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ).

This case was initially before the Board in April 2016 when the case was remanded to afford the Veteran a hearing before a Regional Office hearing officer and to readjudicate all the claims on appeal.  In an October 2016 statement, the Veteran indicated that he no longer wanted a personal hearing.  The Board considers his hearing request withdrawn.  

In June 2017, the Board remanded the claims for further development, to ensure compliance with its April 2016 remand directives, to afford the Veteran new VA examinations, and to provide the Veteran's representative the opportunity to submit a statement in support of the Veteran's appeal.

In August 2017, the Veteran's representative M.R. with the Tennessee Department of Veterans Affairs (TDVA) notified the Board that the Veteran wished to withdraw the instant appeal, and that the Veteran and the representative had mutually agreed to termination of TDVA's representation since the appeal was being withdrawn and the Veteran had moved to Arizona several years earlier.  38 C.F.R. § 20.6(b) (2020) is for application where the representative files a motion to withdraw.  Because the Board has jurisdiction over this issue, the representative's motion to withdraw reflects good cause and essentially satisfies the requirements of 38 C.F.R. § 20.6(b), and, in this instance considering the passage of time since the motion was submitted, the withdrawal is valid.  Therefore, the Veteran is currently unrepresented.

In March 2019, the Veteran notified VA that he did not desire to withdraw his appeal.  Therefore, the Board will proceed with adjudication of the appellate claims.

Preliminary Matter

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

Increased Ratings

Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes (DC or DCs), is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

The assignment of a particular DC is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the DC, and the demonstrated symptomatology.  Any change in a DC by VA must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").  It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007). 

 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 

 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

The claimant bears the burden of presenting and supporting his or her claim for benefits.  38 U.S.C. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).

PTSD

Under the General Rating Formula for Mental Disorders, a noncompensable rating is warranted where a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  38 C.F.R. § 4.130, DC 9411.

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and/or inability to establish and maintain effective relationships.  Id. 

A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442.  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous.

In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014.  Here, the Veteran's claim for increased ratings was certified to the Board in July 2015, and as such, only DSM-5 applies.

The claimant bears the burden of presenting and supporting his or her claim for benefits.  38 U.S.C. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).

Entitlement to Rating in Excess of 50 Percent prior to December 27, 2011

For the rating period prior to December 27, 2011, the AOJ has assigned a 50 percent disability rating for the Veteran's PTSD under DC 9411 based on occupational and social impairment, with reduced reliability and productivity.  38 C.F.R. § 4.130, DC 9411.  The Veteran claims that a higher rating is warranted for this period; however, for the reasons set forth below, the Board finds that a rating in excess of 50 percent for this period is not warranted.

Turning to the record, June 2008 VA treatment notes reflect that the Veteran had been on Sertraline for 53 days and he thought it helped, although he endorsed increased anxiety, increased depression, and avoidant behavior.  On examination, the Veteran was alert and fully oriented.  His speech was spontaneous, fluent, and with normal rate, rhythm, and prosody.  His mood and affect were broad.  He was agitated but ran the gamut from anger to humor.  He denied suicidal and homicidal ideation and there was no evidence of thought disorder.  His attention and concentration were good, and his thinking was linear and goal-directed.  His insight and judgment were fair.  The psychologist noted that the Veteran's behavior "was mildly inappropriate as he sometimes refers to me in ways that objectify me and make relationship appear more equal."  She noted that the Veteran had no awareness of this tendency.

August 2008 VA treatment notes reflect that the Veteran was alert and oriented in all spheres.  He denied having insomnia, mood changes, and other psychiatric problems.  A depression screening was positive for depression.

During a September 2008 VA psychology appointment, the Veteran reported that the Army Reserve had determined that his PTSD had resolved, and he was being told he would need to report for active duty, which he objected to.  He described turmoil with his mother, with whom he resided, and dissatisfaction with his circumstances.  It was noted that the Veteran was taking Zoloft but that he did not benefit from antidepressant therapy likely due to the "characterlogical" nature of his depression.  He was also taking Alprazolam.  On examination, the Veteran's grooming was appropriate, he was alert and oriented, his speech was spontaneous, fluent, and with normal rate, rhythm, and prosody.  His mood was anxious, irritable, and mildly dysphoric, and his affect was always congruent.  There was no evidence of thought disorder and his attention and concentration were adequate. His thinking was linear and goal-directed.  He was blunt and somewhat rood.  He denied suicidal and homicidal ideation.

In October 2008, the Veteran underwent a VA PTSD evaluation, at which time the VA examiner noted a diagnosis of PTSD with intermittent depressive features and panic.  The Veteran was taking the antidepressant and antianxiety medications Sertraline and Lorazepam.  The Veteran said he would feel depressed in relation to weather changes.  He endorsed feeling sporadic anxiety and anxiety when he was around too many people and cars, and that when driving in heavy traffic he becomes anxious and feels closed in.  He endorsed sleep impairment two to three times per week and awakens due to dreams, including dreams about combat.  The Veteran also endorsed a history of panic attacks about once a day that lasted 10-15 minutes but denied having any since 2007 after he started taking Lorazepam.

In terms of social impairment, the examiner noted that the Veteran was married and divorced twice.  He has an adult child from his first marriage but did not have a relationship with her because her mother did not allow the Veteran to see the child.   He said he lived with his mother and his relationship with her was "rocky." 

He said he maintained telephone contact with friends who live out of state.  He said his friends have told him he is different than he used to be in that he is more cynical, self-absorbed, worrisome, and critical.  He said he did not use alcohol.

In terms of occupational impairment, the examiner noted that the Veteran work prior to enlistment in the Army but worked between enlistments, reporting that he had about 150 jobs over a nine-year period, including restaurant management and telemarketing.  The Veteran was not employed at the time of his examination he said due to his PTSD symptoms.

On examination, the Veteran was appropriately dressed and clean, his speech was spontaneous and clear, and he was oriented to person, time, and place.  His mood was dysphoric, and his affect was flat.  He was easily distracted.  His thought process and content were unremarkable.  No abnormalities in judgment or insight were indicated.  He was negative for inappropriate behavior, obsessive or ritualistic behavior, delusions, and hallucinations.  The Veteran denied suicidal and homicidal ideation.  The examiner identified chronic PTSD symptoms of persistent reexperiencing traumatic events; persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness; and persistent symptoms of increased arousal.  The examiner concluded that the severity of the Veteran's PTSD symptoms was "moderate" based on diagnostic testing.  The examiner observed that the Veteran was experiencing "intermittent depression, most of which appears to be associated with the PTSD."  The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  The examiner determined that the Veteran was capable of handling his financial affairs.  See VA PTSD examination report dated October 23, 2008.

During the November 2008 VA neurological disorders examination, the Veteran was alert and oriented to person, place, time, and situation.  His speech was normal.  During a November 2008 VA mental health visit, the Veteran's mood was mildly anxious, and his affect was mildly irritable.  It was noted that the Veteran was taking Zoloft, but that his compliance with his mediation regimen was problematic.

December 2008 VA psychology notes show that the Veteran attempted to control the session by stating what he did and did not want to talk about and when confronted about this he became uncomfortable and began to demonstrate non-adaptive characterological traits.  On examination, the Veteran was alert and oriented.  His speech was spontaneous, fluent, and with normal rate and rhythm.  His mood was irritable and his affect congruent.  He denied suicidal and homicidal ideation.  He was negative for thought disorder.  His judgment was fair, but his insight was poor.  His behavior was appropriate, but he was interpersonally ineffective as he tended to have problems reading social cues and expressing empathy for others.

In his March 2009 Notice of Disagreement, the Veteran, said, in part, that he had endured 12 years of degrading comments about his weight, and demanded that he received 100 percent VA benefits for the rest of his life.

During April 2009 VA outpatient appointments, the Veteran was alert and oriented.  He denied depression, and difficulty staying or falling asleep.  However, he endorsed excessive tossing and turning, night sweats, startle awakenings, and nightmares an average of once per week.  He noted that he experienced a decrease in tolerance and patience with people since his deployment in service.  He endorsed panic attacks, fear, anxiety in crowds, anxiety while driving, and irritability but denied physical aggression, verbal aggression, and impulsivity.  On examination, the Veteran was well groomed, alert, and fully oriented.  His speech was somewhat rapid but otherwise unremarkable.  There were no indications of unusual thought processes or content.  The Veteran's mood was anxious and agitated, and he expressed frustration with the VA system.  He denied suicidal ideation, and audio/visual hallucinations.

VA treatment notes dated April 2009 reflect that the Veteran felt stressed about not having a job, but he was negative for suicidal ideation, and the Veteran denied any history of suicidal ideation.

During a May 2009 VA psychiatry consultation, the Veteran was adequately groomed, and his speech was normal.  His thought processes were goal-directed and logical.  He reported using cannabis and alcohol during adolescence and some reliance on alcohol to escape stresses during enlistment in service.  He reported two prior marriages and estrangement from his mother.  He had recently interacted with peers from high school at a reunion and said he enjoyed some notoriety among peers who learned that he was awarded the Purple Heart.

During a July 2009 examination for eligibility for Social Security Administration (SSA) benefits, the Veteran endorsed avoidance of crowds, noise, and commotion, as well as irritability.  He denied current depression.  He endorsed nightmares of trauma from combat and said he sometimes awakened sweaty.  He denied memory problems.  He said he had trouble paying attention if he was not interested in the material, especially the case when reading.  He characterized his relationship with his mother as one that is "full of stress."  He said he does not keep in touch with other family members; however, he said he kept in touch with friends that he has had since elementary school.  The Veteran said he had no contact with his daughter.  He did not have a significant other.  He denied a history of mania or hypomania.  He said he has nightmares and intrusive thoughts of being injured by shrapnel in an explosion in the Middle East.  He endorsed having agoraphobia but described it as mild.  He avoided conversations about the Army, and he tried to avoid seeing soldiers in uniform and news and media representations of the military.  He endorsed hypervigilance and an exaggerated startle response.  It was noted that the Veteran lived alone and kept up with his hygiene.  He said he did chores, cooking, grocery shopping, and managed his money himself.  On examination, the Veteran was clean, and he was alert and oriented.  His speech was unremarkable.  His motor level was normal without unusual mannerisms, and his affect was appropriate to the topics discussed.  He denied delusions, ideas of reference, and feelings of influence.  Some minimal depressive thought content was noted.  He denied obsessions, compulsions, delusions, and hallucinations, as well as suicidal and homicidal ideation or intent.  The Veteran's insight and judgment were limited but intact.  His score on the MMSE was 30/30 (normal).  The SSA examiner noted that she did not believe that the Veteran was suffering from an episode of major depression at that time.  The diagnoses included PTSD, and Narcissistic traits, rule out narcissistic personality disorder.  See SSA examination report dated July 9, 2009.

During a March 2010 VA psychiatric outpatient appointment, the Veteran said he was feeling depressed, frustrated, irritable, and angry, with variable levels of interest, energy, and motivation. He said his sleep and appetite were normal.  He said taking Lorazepam helped his frustration, anger, and sleep.  He endorsed crying spells, nightmares, excessive startle responses, and feeling helpless, hopeless, and lonely.  He denied having panic attacks.  He denied suicidal and homicidal ideation, feeling paranoid, hearing voices, and delusions and hallucinations.  A PHQ-9 depression screening score of 12 suggested moderate depression.   On examination, the Veteran was alert and oriented in all spheres.  His grooming and hygiene were good.  His speech was normal.  His mood was depressed and anxious and congruent to thinking.  His affect was appropriate with full range.  His thinking was linear.  His cognition was intact, and his memory was good.  His insight and judgment were good.

In April 2010, the Veteran reported during a VA appointment that he "felt irritated and agitated" after taking Wellbutrin.  On examination, the Veteran was alert and oriented in all spheres.  His grooming and hygiene were good.  His speech was normal.  His mood was depressed and anxious and congruent to thinking.  His affect was appropriate and full in range.  His thinking was linear, and his cognition was intact.  His memory was good.  His insight and judgment were good.  The Veteran denied suicidal and homicidal ideations and was negative for delusions and hallucinations.

In May 2010, the Veteran underwent a VA PTSD examination, at which time the VA examiner noted a diagnosis of PTSD, chronic.  The Veteran endorsed sleep disturbances, nightmares, and night sweats three to four times a week that awaken him.  He said intrusive thoughts were occurring just as frequently.  He said brief flashbacks were triggered by a stimulus reminder.  He reported frequent irritability and anger, especially when driving.  He denied becoming physical with his anger.  He endorsed avoidance, hypervigilance in crowded places, acute anxiety, and exaggerated startle response to unexpected noise.  The Veteran was negative for suicidal ideation.  The Veteran reported that his leisure activities are limited by his lack of finances.  He said he mostly watches television and goes for walks.  He said he has some friends but contact with them was mostly by telephone.

In terms of social impairment, the examiner noted that the Veteran was living with his mother and maintained a generally satisfactory relationship with her.  He said he has no siblings.  The Veteran said he was married and divorced twice, and he did not have a girlfriend since the last divorce in the late 1990s and had not dated for a number of years.  He said he has one child, a daughter, but does not maintain a relationship with her.  He was in arrears for child support.

In terms of occupational impairment, the examiner noted that the Veteran reported that he last worked in 2007 and was not employed at the time of the examination.  He said when he was working in 2007, he was unable to manage the stress in the work setting due to problems with focus, concentration, anger, irritability, and intrusive thoughts.

On examination, the Veteran was alert, responsive, and he was oriented in all spheres.  His appearance and hygiene were clean.  His mood was anxious, and his range and affect were broad.  His speech was rate and volume were normal.  His immediate, recent, and remote memory were satisfactory.  His though process was spontaneous, abundant, relevant, and goal-directed.  His insight was fair.  His thought content was negative for suicidal and homicidal ideation, delusions, and feelings of unreality.  His concentration was satisfactory.  The examiner concluded that the Veteran is capable of routine activities of daily living.  The VA examiner did not opine as to the level of occupational and social impairment in terms of diagnostic criteria, instead concluding that the Veteran's symptomatology at the time of the examination was "in the serious range."  However, the examiner noted specific PTSD symptoms of sleep disturbances, nightmares and night sweats three to four times a week, intrusive thoughts at least as frequently as nightmares, flashbacks occurring when triggered by a stimulus reminder, verbal anger and irritability, intellectual irritability, avoidance behavior, hypervigilant behavior, occasional exaggerated startle, and episodes of acute anxiety.  See VA PTSD examination dated May 14, 2010.

During a June 2010 VA appointment, the Veteran reported that he played drums in a rock and roll band.

In his August 2010 appeal to the Board, the Veteran said, in part, that he had recently experienced a panic attack, he was unable to work in public, watch the news, or see a uniform without "losing it."  He added, "I feel cheated out of my life.  I'm angry all the time."  He said he takes the medication Lorazepam "like it's candy."

In March 2011, while being treated for a hand laceration at a VA emergency department, it was noted that the Veteran was alert and oriented in all spheres, and he did not endorse suicidal or homicidal ideation.

In an October 2011 statement submitted in support of his claim, the Veteran said he is unable to work or deal with people on a professional level because of his PTSD.

During an October 2011 VA outpatient appointment, the Veteran reported that he experienced a recent panic attack and was seen at a non-VA emergency room after drinking six beers and using marijuana.  He said he began to feel weak after a P90X work-out and called for an ambulance.  On examination, the Veteran was alert and conversant, and his hygiene was good.  A psychiatric evaluation indicated the Veteran was within normal limits with stable mood and congruent affect.  His abdomen was nontender and bowel sounds were heard in four quadrants.  He had full ROM of all four extremities and his muscle strength was 5/5 in the upper and lower extremities, bilaterally.  His gait was stable.  A PTSD screening was positive.  The Veteran endorsed nightmares and thoughts he wanted to avoid, was constantly on guard, watchful, or easily startled, and was feeling numb or detached from others, activities, or his own surroundings.  He denied suicidal ideation and said he had never attempted suicide.  The Veteran requested a refill of Lorazepam. A VA physician's assistant cautioned the Veteran that commonly other drugs may be mixed with street marijuana, which can cause psychotic episodes.

December 2011 VA outpatient notes reflect normal psychiatric and neurological assessments.  It was noted that the Veteran's PTSD symptoms were controlled on Lorazepam.  

On review of the evidence of record, both lay and medical, the Board finds that the criteria for a rating higher than 50 percent are not met or approximated for the rating period prior to December 27, 2011.  VA examinations and treatment records during this period reflect that the Veteran denied suicidal ideation, experienced intermittent panic attacks, and while irritable he denied being a danger to himself or others and the record does not reflect that the Veteran engaged in violent behavior.  Also, the record reflects that the Veteran had only sporadic anxiety and there was no evidence of impaired thought processes or communication, no delusions or hallucinations, no irrelevant, illogical or obscure speech, and no obsessive or ritualistic behavior that interfered with routine activities.  The October 2008 VA examiner concluded that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.  Thus, when taking into consideration the Veteran's lay assertions, and resolving any doubt in his favor, his PTSD symptoms more nearly approximated the criteria for the assigned 50 percent rating prior to December 27, 2011.

In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that the Board may not deny entitlement to a higher evaluation on the basis of relief provided by medication when the effects of medication are not specifically contemplated by the rating schedule.  However, DC 9411 for PTSD expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD.  38 C.F.R. § 4.130, DC 9411 (providing a noncompensable PTSD evaluation when, inter alia, "symptoms are not severe enough ... to require continuous medication" and a 10% PTSD evaluation when, inter alia, "symptoms [are] controlled by continuous medication").  Nevertheless, the Board finds that, even when considering the PTSD symptoms the Veteran may experience when not aided by the ameliorative effect of medication, a higher rating for the period prior to December 27, 2011 is not warranted as the record reflects that the Veteran did not consistently follow the medication regimen prescribed by caregivers, and there is no probative evidence indicating that, absent medication, the Veteran would experience symptomatology reflective of occupational and social impairment with deficiencies in most areas.

Consequently, the Board finds that a disability rating higher than 50 percent under DC 9411 is not warranted for the period prior to December 27, 2011, as the Veteran's symptoms do not rise to the level of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.   See 38 C.F.R. § 4.130.

Therefore, the Board finds that a rating in excess of 50 percent for PTSD for the period prior to December 27, 2011 is not warranted.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Entitlement to Rating in Excess of 70 Percent from December 27, 2011

For the rating period from December 27, 2011, the AOJ has assigned a 70 percent disability rating for the Veteran's PTSD under DC 9411 based on occupational and social impairment, with deficiencies in most areas.  38 C.F.R. § 4.130, DC 9411.  The Veteran claims that a higher rating is warranted for this period; however, for the reasons set forth below, the Board finds that a rating in excess of 70 percent for this period is not warranted.

Turning to the record, in December 2011, the Veteran was afforded a VA PTSD examination, at which time the VA examiner noted diagnoses of PTSD and Cluster B traits.

In terms of social impairment, the examiner noted that the Veteran reported that he has no contact with his mother and has difficulty socializing with most people.  The Veteran said he does not maintain contact with his daughter.  He added, "I have an inability to be around a group of people for more than a little while."

In terms of occupational impairment, the examiner noted that the Veteran said he had not been employed since his last compensation and pension examination.  When asked why he was not working, he said, "if there are more than a few people in a room I get claustrophobic."  He added that he tends to find fault with people, noting, "I'm highly intelligent and most people don't understand what I'm saying."  The examiner interpreted the Veteran's remarks to indicate that he has difficulty interacting with people in most work environments.  The Veteran said he leaves places at times because he gets extremely anxious.

The examiner identified symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting.  The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The examiner determined that the Veteran was capable of handling his financial affairs.  The examiner concluded that "the veteran is not considered unemployable based solely on his PTSD diagnosis.  However, it is more likely than not that the veteran would have an extremely difficult time maintaining employment and almost all work environments due to PTSD symptoms such as irritability and anxiety."  See VA PTSD examination dated December 27, 2011.

In correspondence dated March 2012, the Veteran said he was unable to work.  He said he was having bad dreams, loud noises bothered him, and he continued to take Lorazepam daily.

A June 2012 SSA Disability Determination and Transmittal reflects a finding that the Veteran was disabled effective April 27, 2009 due to anxiety related disorder and personality disorder.

During a VA appointment in August 2014, the Veteran endorsed depressed mood depending upon the day due to stress and financial difficulties, sleep difficulty, and hypervigilance.  He was angry about struggling financially.  He denied major depressive episodes and suicidal ideation.  There was no evidence of psychosis or obsessive behavior.  The Veteran said he used marijuana daily for four or five years.  He said he used Lorazepam intermittently when he is out of marijuana.  A VA psychiatrist noted that she was not comfortable prescribing Lorazepam for someone with a substance abuse disorder who is actively using the abused substance and suggested alternative treatment options.  It was noted that the Veteran refused to consider other options or cut down on marijuana use or get any help with that.

September 2014 VA outpatient notes show that the Veteran endorsed panic attacks, and he avoided crowds and was hypervigilant.  The Veteran said he wanted to make clear he does not use cannabis on a regular basis.  He said he told the last doctor he used it recently but emphasized that he is not a regular user, and he asserted that he had not used marijuana in two weeks.  The Veteran said he avoided crowds and was very hypervigilant.  He said he had to stand up in the waiting room because it was so crowded.  On examination, the Veteran was alert and oriented to person, place, and time.  He was well groomed and appropriately dressed.  His speech was normal and there were no abnormal mannerisms.  His mood was "stressed," and his affect was congruent and euthymic.  His thought process was logical and coherent.  He denied suicidal and homicidal ideation, and auditory and visual hallucinations.  His judgment and insight were adequate.

During a May 2015 VA appointment, the Veteran said he had not seen any VA doctors for over two years.  He said he smoked marijuana daily for low back pain and PTSD and was taking no other medications.  He said he was stable using marijuana.  On examination, the Veteran was alert and oriented and there were no gross motor deficits.

In July 2015, while being examined by a VA clinician for knee pain, it was noted that the Veteran was very tangential and he appeared to be struggling with PTSD symptoms in addition to addictive tendencies, including ruminative thoughts. The Veteran denied suicidal ideation.  While being seen for knee pain in August 2015, the Veteran said he used Lorazepam occasionally.  He said he was sleeping well.  He declined mental health services.

The Veteran returned to VA for an outpatient appointment in February 2017, reporting that he used Lorazepam only when it was absolutely necessary.  He said he had spent about 85-thousand dollars in VA benefits on gambling over the past two years.  The Veteran indicated that he was seeing a chiropractor who was doing neuro-reprogramming, but the treatment was expensive, so he requested referral to VA for treatment services.  A depression screening was negative.  Several days later when VA contacted the Veteran to schedule an appointment for therapy, it was noted that the Veteran replied that he does not believe he needs therapy because the therapist he saw in the past was "ridiculous" and "didn't know what she was talking about".  Treatment notes reflect that next day, when VA called again, the Veteran became angry and hung up.

In an April 2017 statement, the Veteran said there was no change in his PTSD condition.  He added that he was not able to work because of PTSD and the medications he was taking.

During a May 2017 VA mental health consultation, the Veteran underwent a psychosocial assessment, endorsing depression, anxiety, including social anxiety, and fear of crowds.  He said he was taking Lorazepam as needed for panic attacks.  The Veteran expressed a desire to attend school and be in a romantic relationship.  He described a feeling of abandonment by friends.  He said he was experiencing an increase in nightmares since stopping heavy marijuana use.  He also endorsed prolonged psychological and physiological responses to external stimuli that remind him of traumatic events.  The Veteran denied feeling estranged from others, which the psychologist noted conflicted with the Veteran's report of feeling abandoned by friends.  The Veteran also denied avoiding memories of traumatic events, and said he had been doing self-healing meditation, which he said was helpful.  The Veteran also reported a problem with gambling, explaining that while he always makes sure his bills were paid, he immediately spent any excess funds on gambling.  The Veteran reported that he had been married twice but stated that he had no children.  He said living with his mother caused him a significant amount of stress.  He denied having an outside social support system.  He said he was a musician but that his PTSD symptoms made it difficult for him to work.  He said he would like to return to school, but he was not yet sure where.  He also said he would like to be living on his own, and not with his mother.  He said he had employed different holistic methods, some of which have been helpful. He reported that he had found medical marijuana to be helpful for a year, but then experienced a panic attack, which led him to discontinue his use.  On examination, the Veteran was alert and oriented and his grooming was appropriate.  His speech was described as pressured/pushed.  He was negative for hallucinations and illusions.  His thought process circumstantial, tangential, and indicated loosening of associations.  There was no unusual thought content.  He was negative for suicidal and violent ideation.  His memory was intact, and his insight was good, but his judgment was described as impaired.  He was negative for hallucinations and illusions.  He did not report suicidal or homicidal ideation.  The diagnoses were PTSD, gambling disorder, and unspecified personality disorder.

In October 2017, the Veteran was again afforded a VA PTSD examination.  The VA examiner noted diagnoses of PTSD and Cluster B personality traits, although the examiner also indicated there was only one diagnosis, that of PTSD.  The Veteran said he was taking the medication Lorazepam on an as-needed basis.  The Veteran denied psychiatric treatment, hospitalization, or emergency care due to his PTSD since 2014.

In terms of social impairment, the examiner noted that the Veteran said he has not been married or involved in any relationship or dated since the 2014 rating decision.  He said he had been living with his mother until a month prior to the examination when he moved to a different town and lives by himself.  He said his relationship with his mother was "okay."  He said he was on a quest to "heal himself."  He reported limited social engagements.

In terms of occupational impairment, the examiner noted that the Veteran he was unemployed and was not looking for work and was not enrolled in school.  He said he had a hard time "being out and about" and he did not want to be around people. He said he has "opinions about things and I don't have a filter."

On examination, the Veteran was talkative, but he was not dysphoric, and his thoughts were clear.  He denied suicidal and homicidal ideation.  His focus and concentration were intact.  The examiner identified symptoms of anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting.  The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity.  The examiner determined that the Veteran was capable of handling his financial affairs.  See VA PTSD examination report dated October 17, 2017.

VA treatment notes dated January 2018 reflect that the Veteran was using marijuana to treat his anxiety symptoms and Lorazepam on rare occasions.  He said he was trying to cut down his marijuana use because it was not as effective.  PHQ-9 Depression, GAD-7 anxiety, and PCL-5 PTSD screening scores were 8, 10, and 24, respectively.  The Veteran said his sleep and appetite were good.  He denied being a danger to himself or others.  The Veteran endorsed symptoms consistent with PTSD, including disturbing memories and dreams, re-experiencing events, and cued distress.  The Veteran was negative for suicidal ideation.

During a February 2018 VA outpatient appointment, the Veteran said he was feeling good overall.  He said he had good and bad days but that he had "no current problems" with PTSD and he denied suicidal and homicidal ideation.  The Veteran was conversational, and his affect was appropriate.

March 2018 VA treatment notes reflect that the Veteran reported feeling depressed and irritable with variable levels of interest, energy, and motivation.  He said he felt hopeless and lonely at times.  He said he was using marijuana to treat his anxiety symptoms and used Lorazepam on rare occasions.  He said he played in musical bands as a drummer but was either fired or quit because of disagreements with other band members.  He endorsed distressing memories of the traumatic events while deployed, feelings of detachment, irritability and anger outbursts, hypervigilance, sleep disturbances, and concentration problems.  He denied hearing voices or feeling paranoid.  He denied thoughts of self-harm or harming others.  On examination, the Veterans speech was normal rhythm and volume, but at a fast rate at times. His mood was frustrated, and his affect was full range.  There was no psychomotor agitation or retardation.  His thought process was linear, logical, and goal oriented, and his thought content was negative for delusions and hallucinations.  He denied suicidal and homicidal ideation.  His insight was fair, his judgment was adequate, and his cognition was grossly intact.

During a July 2018 VA treatment plan appointment, the Veteran was alert and oriented to person, place, and date.  A depression screening was negative.

January 2019 VA treatment notes reflect that the Veteran continued to use marijuana for treatment of his PTSD.  The Veteran said he had a good handle on things regarding PTSD.  On examination, the Veteran was oriented in all spheres, his mood and affect were described as "normal."  It was noted that the Veteran had "adequate" ROM of all extremities and his sensory and motor systems were intact.  PTSD and suicide risk screenings were negative.  The Veteran endorsed having been constantly on guard, watchful, or easily startled.  He denied ever having had nightmares or avoidance of thoughts about traumatic events.

The Veteran reported for a VA primary care appointment in December 2019, during which he was oriented in all spheres, and his mood and affect were normal. It was noted that he had adequate ROM of all extremities and his sensory and motor systems were intact.

In March 2020, the Veteran's primary VA physician noted that the Veteran said he had been doing a lot of Yoga, and that he was able to exercise and stay active. Depression and suicide screenings were negative.  On examination, the Veteran was alert and oriented to person, place, and time, and he was coherent.  The physician concluded that the Veteran was managing his PTSD well.  The physician further noted that the Veteran was using marijuana but not Lorazepam.

July 2020 VA mental health consultation notes reflect that the Veteran said he didn't believe in taking prescription medications, so he used marijuana.  He said he smoked it "from morning 'til night," a gram a day, but stopped using Marijuana 19 days earlier because he started to have anxiety.  He said he took Lorazepam left over for two years, which helped.  He said he experienced tension and anxiety almost daily, which has been worse since he stopped using marijuana.  He said his anxiety could be triggered by someone talking about what they went through in a "war situation."  The Veteran said he lived with his mother and that they were not getting along.  He described making impulsive decisions and justifying gambling because he knew he could live with his mother.  On examination, the Veteran's speech was tangential, and his mood was dysphoric.  His thought process was circumstantial-tangential, but goal directed.  No memory deficits were indicated.  He was negative for suicidal and violent ideation, hallucinations, and illusions.  

In a November 2020 statement, the Veteran said his PTSD would never get any better, "14 years and counting."  He endorsed restless sleep he attributed to PTSD.

On review of the evidence of record, both lay and medical, the Board finds that the criteria for a higher and maximum rating of 100 percent or PTSD are not met or approximated from December 27, 2011, forward.  Total occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record.  Indeed, the Veteran has not displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene).  He has been found to be capable of managing his own financial affairs and has continuously appeared alert, oriented, groomed, and cooperative throughout the rating period.

As discussed above, in the context of the Court's decision in Jones, DC 9411 for PTSD expressly authorizes VA to take into account the ameliorative effects of medication when evaluating PTSD.  Here, the Board finds that, even when considering the PTSD symptoms the Veteran may experience when not aided by the ameliorative effect of medication, a higher rating for the period from December 27, 2011 is not warranted as the record reflects that the Veteran did not consistently follow the medication regimen prescribed by caregivers, and there is no probative evidence indicating that, absent medication, the Veteran would experience symptomatology reflective of total occupational and social impairment.

Therefore, the Board finds that a rating in excess of 70 percent for PTSD for the period from December 27, 2011 is not warranted.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

GERD with IBS

The AOJ assigned a 10 percent rating, effective June 1, 2009, for the Veteran's GERD with IBS under DCs 7399-7346.  See Rating Decision dated March 10, 2009.  The Veteran claims that a higher rating is warranted; however, for the reasons set forth below, the Board finds that a rating in excess of 10 percent is not warranted.

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27.  Furthermore, DCs ending in "99" are for all unlisted conditions.  As there is no DC for GERD, the AOJ rated GERD analogous to hiatal hernia under DC 7346.  When an unlisted condition is encountered, it is permissible to rate under a closely related disease which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.  Here, the Board finds that GERD is most closely analogous to a hiatal hernia in terms of symptomatology, resulting disability pictures, and anatomical localization in the upper gastrointestinal tract.  Thus, DC 7346 is the most appropriate DC for rating the Veteran's GERD.

Under DC 7346, a 10 percent rating is warranted where hiatal hernia manifests with two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent rating is warranted for hiatal hernia that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The highest schedular rating of 60 percent rating under such code 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.  38 C.F.R. § 4.114.

The term "severe" is not defined.  Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Turning to the evidence, VA treatment notes dated August 2008 reflect that the Veteran denied nausea, diarrhea, and other gastrointestinal problems.

During an October 2008 VA general medical examination, the Veteran denied nausea and vomiting, but endorsed variable frequency heartburn and indigestion twice per day or twice per week, depending on his diet.  He endorsed regurgitation with each meal, with food coming up his throat.  He denied dysphagia.  He said taking Pantoprazole did not completely control his symptoms.  He was taking over-the-counter TUMS twice a day, which he said usually helped.  He reported good appetite and stable weight.  He denied hematemesis and melena.  He endorsed irregular bowel movements varying from one to two times per day to three to six times per day, mostly with soft stools.  He endorsed bloating and abdominal pain and discomfort six to eight times per week generalized in his abdomen lasting minutes to hours.  See VA General Medical examination dated October 21, 2008.

In November 2008, VA x-rays were obtained of the Veteran's upper gastrointestinal and small bowel were obtained, which revealed that the size, contour and mucosal of the stomach and duodenum were normal, and the small mucosa and caliber were normal.  No extrinsic abnormalities were noted.  No abnormalities were seen in spot films in all four quadrants.  A water siphon test resulted in reflux to the carina.  The examiner was unable to confirm hiatal hernia. A 13 mm barium tablet passed without difficulty.  Small bowel follow-through was normal.  See VA GERD examination dated November 3, 2008.

During an April 2009 VA outpatient appointment, the Veteran said he recently lost weight but on review the VA physician noted that the Veteran had gained 30 pounds.  The Veteran's weight was 252.65 pounds.  The Veteran denied nausea, vomiting, melena, bright red blood per rectum, and diarrhea.  He said he used Protonix and Rolaids to control acid reflux as needed.  The Veteran was negative for dysuria, dribbling, nocturia, and hesitancy.  On examination, there were no masses, hepatomegaly, or splenomegaly.

In May 2009, the Veteran reported for a VA nutrition consultation, expressing his desire to lose weight, noted as 249 pounds during the appointment.  Advice was provided regarding nutrition and weight loss.  The diagnosis was Undesirable Overweight status related to inappropriate dietary habits and excessive caloric intake.  The Veteran set a goal of reducing his weight to 200 pounds.

The Veteran was afforded a VA esophageal examination in May 2010.  The diagnosis was GERD.  The Veteran endorsed experiencing dysphagia, but only once.  He denied hospitalization, trauma to the esophagus, esophageal neoplasm, nausea, vomiting, esophageal distress, regurgitation, hematemesis, melena, esophageal dilation, and tube feeding.  He endorsed a history of pyrosis (heartburn) "several times daily."  On examination, there were no signs of anemia.  The examiner noted that the Veteran's GERD symptoms moderately impacted feeding, mildly impacted exercise, sports, recreation, and travel, and had no impact on shopping, chores, bathing, dressing, toileting, or grooming.  See VA Esophagus and Hiatal Hernia examination dated May 20, 2010.

June 2010 VA treatment notes reflect that the Veteran's weight was 230.6 pounds.

VA primary care notes dated October 2011 reflect that the Veteran reported having a lot of gas.  He said he used five to fifteen TUMS tablets a day.  It was noted that the Veteran had tried Omeprazole, Prilosec, and Zantac without relief.  On examination, the Veteran's abdomen was nontender and bowel sounds were heard in four quadrants.  December 2011 VA outpatient notes reflect that the Veteran's GERD symptoms were "well controlled" on the prescription medication Pantoprazole.  A gastrointestinal examination was normal.

The Veteran was seen by a VA clinician in May 2015, at which time it was noted that the Veteran's weight was 227 pounds.  The Veteran denied having nausea, vomiting, diarrhea, or constipation.  It was noted that the Veteran had no history of anemia.  During a VA outpatient visit for knee pain in September 2015, the Veteran denied having nausea, vomiting, and diarrhea.

February 2018 VA outpatient notes reflect that the Veteran weighed 226.4 pounds.

The Veteran underwent a VA esophageal conditions examination in October 2017.  The diagnosis was GERD.  Although the Veteran's weight was not recorded, the reported that he had experienced no weight loss.  The Veteran said he gets indigestion and takes TUMS after eating, especially after eating spicy foods or when under stress.  He said the symptoms were worse when lying down.  He takes no prescription medications for his symptoms, just over the counter TUMS as needed, but typically takes two a day.  He said he has heartburn five days a week relieved by taking TUMS.  He says GERD affects him on a constant basis.  He said his GERD symptoms do not impact his sleep.  The Veteran said he has a normal appetite, and no weight loss, but he must avoid eating certain foods.  He doesn't work. The only thing he does is play drums.  The examiner noted that the Veteran's treatment plan does not include taking continuous medication for GERD.  The Veteran endorsed GERD symptoms of pyrosis and regurgitation.  He was negative for esophageal stricture, spasm of esophagus (cardiospasm or achalasia) and acquired diverticulum of the esophagus.  The examiner opined that the Veteran's symptoms do not impact his ability to work.  See VA Esophageal Conditions examination dated October 18, 2017.

The Veteran was also afforded a VA examination in October 2017.  Although the Veteran's weight was not recorded, the reported that he had experienced no weight loss.  The Veteran denied gastrointestinal symptoms of changes in bowel habits and diarrhea.  He said his stools were frequently normal in form and he denied associated nausea, vomiting, or diarrhea.   He denied abdominal cramping relieved by bowel movements.  The Veteran denied alternating diarrhea or constipation, bowel disturbances, weight loss, malnutrition, and a history of tumors or neoplasms.  There was no history of IBS.  The examiner concluded that the Veteran did not have an intestinal condition and rendered no diagnosis.   The examiner opined that the Veteran's symptoms do not impact his ability to work.  See VA Intestinal Conditions examination dated October 28, 2017.

During a February 2018 VA appointment, the Veteran denied nausea, vomiting, and diarrhea.  His weight was 241 pounds.  He said he was interested in meeting with a VA dietician to discuss weight loss.  In March 2018, the Veteran told a VA clinician that his weight remained the same despite watching what he ate, and he "feels overweight."

In June 2018, the Veteran reported to a VA nutrition clinic for weight management.  It was noted that he was "obese grade 2," that he had lost weight in the recent past but had gained weight back and was requesting options for losing weight.  The Veteran denied chewing and swallowing problems, recent appetite changes, recent weight changes, nausea, and vomiting.  His weight was 248.9 pounds.  During a VA outpatient appointment in January 2019, the Veteran's weight was 243.5 pounds.

VA treatment notes dated March 2020 reflect that the Veteran reported having lost 13 pounds through dieting.  He denied chest pain or pressure, abdominal pain, bowel changes, melena, and hematochezia.  The Veteran's weight was 230 pounds.

During a July 2020 VA COVID-19 screening, the Veteran denied nausea, vomiting, and malaise.  He mentioned one episode of diarrhea and vomiting after eating greasy food a week earlier, which had resolved.

On review of the evidence of record, both lay and medical, the Board finds that a rating higher than 10 percent under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  During the appellate period, the record does not show that the GERD symptoms have more nearly manifested as being productive of considerable impairment of health.  Additionally, there is also no evidence that the GERD symptoms have combined to more nearly approximate severe impairment of health.  There is no history of anemia, and weight loss reflected in the treatment records was intentional as the Veteran was considered overweight.

Although the Veteran has symptoms listed in the 30 percent rating, the service-connected GERD manifested in less severe symptoms than contemplated by the 30 percent rating, and a higher 30 percent rating under DCs 7399-7346 is not warranted.

Therefore, the Board finds that a rating in excess of 10 percent for GERD is not warranted.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Retained Shrapnel of the Left (Minor) Hand (Thenar Eminence)

The AOJ assigned a 10 percent disability rating, effective June 1, 2009, under DC 5309 based on injury to the short flexor injury (Muscle Group IX).  See Rating Decision dated July 28, 2010; 38 C.F.R. § 4.73, DC 5309.  The Veteran claims that a higher rating is warranted; however, for the reasons set forth below, the Board finds that a rating in excess of 10 percent is not warranted.

DC 5309 governs Group IX muscle injuries.  Group IX governs function of the forearm muscles which act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements.  Intrinsic muscles of hand include: thenar eminence; short flexor, opponens, abductor and adductor of thumb; hypothenar eminence; short flexor, opponens and abductor of little finger; 4 lumbricales; 4 dorsal and 3 palmar interossei.  A note to DC 5309 states that the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc.  DC 5309 provides that Group IX muscle injuries should be rated based on limitation of motion (the criteria for which is discussed below), with a minimum 10-percent rating. See 38 C.F.R. § 4.73.

The classifications of slight, moderate, moderately severe, or severe under DCs 5307-5308 are described in 38 C.F.R. § 4.56(d).  "Slight" impairment of muscles stems from a simple wound of a muscle without debridement or infection.  It heals with good functional results, is superficial, results in minimal scarring, and shows no impairment of function or retained metallic fragments in the muscle tissue. There are no cardinal signs of muscle disability.  See also 38 C.F.R. § 4.56(c) (for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement).

For "moderate" impairment, the type of injury is "through and through" or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residual debridement or prolonged infection.  The record of moderate muscle impairment would show consistent complaint of one or more of the cardinal signs and symptoms of muscle disability; particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objective findings are entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance; or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

Characteristics of "moderately severe" impairment include through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  History and complaints would include evidence showing hospitalization for a prolonged treatment for wound; record of consistent complaint of cardinal signs and symptoms of muscle disability; and evidence of inability to keep up with work requirements.  Objective findings include entrance and (if present) exit scars through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; and impacted strength and endurance.  38 C.F.R. § 4.56(d)(3).

Characteristics of "severe" muscle impairment include all of the above, plus: evidence of wounds due to large or multiple missiles; shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts; intermuscular binding and scarring; consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe injuries; ragged, depressed, and adherent scars indicating wide damage to muscle groups; loss of deep fascia on palpation, loss of muscle substance, or soft, flabby muscles in wound area; muscles swell and harden abnormally in contraction; severe impairment of strength, endurance, or coordinated movements.  If present, the following are also signs of severe muscle disability: X-ray evidence of multiple scattered foreign bodies; adhesion of scars; diminished muscle excitability to pulsed electrical current; atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

Turning to the evidence of record, during an October 2008 VA general medical examination, x-ray imagery of the Veteran's left hand was obtained, which revealed no significant osseous cartilaginous or alignment abnormalities.  X-ray films showed a metallic fragment in the lateral soft tissues.  See VA General Medical examination dated October 21, 2008.

During a VA examination in November 2008, the Veteran denied left hand symptoms.  He said his left hand did not bother him when playing drums, and his left hand did not affect activities of daily living.  He denied flare-ups and he denied using an assistive device for that hand.  On examination, the skin on the Veteran's left hand was intact.  There was an approximately a half-millimeter, well healed wound over the thenar eminence.  There was no palpable mass, and no tenderness to palpitation.  There was a 0 inch gap between the tip of his left thumb and all four digits of the left hand, and a 0 inch difference between the tip of his fingers and the proximal transverse crease of the left palm.  There was a 0 inch gap between the thumb pad and the fingers with the thumb attempting to oppose the fingers.  The Veteran had normal motor and sensory function of the median, radial, and ulnar nerves.  ROM of all metacarpophalangeal (MCP) joints were 0 to 90 degrees of flexion, active and passive, and this did not change with repetition.  The Veteran was negative for pain on ROM.  ROM of index, middle, ring and small fingers proximal interphalangeal (PIP) joints were 0 degrees to 100 degrees flexion, active and passive, which did not change with repetition, and no pain with ROM.  ROM of motion of thumb, index, middle, ring and small finger DIP joint was 0 degrees to 80 degrees, active and passive, and there was no change in ROM with repetition, and no pain with ROM.  A left hand x-ray showed a 5 millimeter foreign body at the base of his second metacarpal on the volar aspect.  Otherwise, there were no fractures, dislocations, or boney abnormalities, and joint spaces were well maintained.  See VA Joints examination dated November 1, 2008.

The Veteran was afforded a VA neurological examination in November 2008.  Sensory examination was normal to pinprick, light touch, and vibration in the upper and lower extremities.  Observation and examination over the scar area of the Veteran's left thenar was within normal limits.  He had normal grip in both hands.  The VA examiner described a scar on the left hand as well-healed.  There was no palpable deformity and no pain on palpation.  See VA Neurological Disorders examination dated November 26, 2008.

During a March 2009 VA outpatient appointment, a screening for embedded fragments was administered and it was noted that the Veteran had fragments in his body but did not specify where.  The Board notes that other treatment records consistently reference shrapnel fragments in the Veteran's left hand and chest.  In April 2009, "Shrapnel in left hand" was noted as a medical condition.

In May 2010, the Veteran underwent a VA muscles examination.   The diagnosis was retained shrapnel, left hand.  The Veteran described being hit by shrapnel during a mortar attack in Iraq.  He said the wound was never debrided but that it had remained stable.  On examination, it was noted that the wound was to the short flexors muscle group of the left thumb.  There was no intermuscular scarring, and the muscle was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living.  The examiner observed a scar 2.5 cm in length on the left thenar eminence, which was not adherent, was not tender to touch, and there was no corresponding exit scar.  There were no residuals of nerve damage, tendon damage, bone damage, muscle herniation, loss of deep fascia or muscle substance, and no limitation of motion.  The VA examiner concluded that the retained shrapnel had no occupational effect because the Veteran was not employed but noted that there were no effects of the injury on the Veteran's usual daily activities.  See VA Muscles examination dated May 20, 2010.

In March 2011, the Veteran was seen by a VA clinician for a laceration to his left hand.  The treatment notes do not indicate that the laceration was on or near the left thenar eminence.

In December 2011, the Veteran reported for a VA examination, at which time the VA examiner merely noted that the Veteran had no perceptible left hand scar and that the Veteran denied having a problem with his left hand.  The examination form was otherwise not completed.  See VA Hand and Finger Conditions examination dated December 8, 2011.

During an October 2017 VA examination, the Veteran denied functional loss and flare-ups associated with his left thenar eminence, and he denied use of an assistive device.  On examination, hand ROM was normal, bilaterally.  The Veteran was able to perform repetitive use testing of both hands with at least three repetitions without functional loss or reduced ROM after three repetitions.  The examiner noted that the Veteran was not examined immediately after repetitive use testing over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time.  Additionally, the examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability of either hand with repeated use over a period of time.  There was no gap between the pad of the left thumb and fingers, no gap between the finger and proximal transverse crease of the hand on maximal finger flexion, and no pain with use of either hand.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  Muscle strength testing normal, bilaterally.  The Veteran was negative for ankylosis, bilaterally.  The examiner concluded that the Veteran's left hand disability did not impact his ability to work.  See VA Hand and Finger Conditions examination dated October 18, 2017.

During an October 2017 VA muscle injuries examination, as pertinent to the Veteran's left thenar eminence, the diagnosis was shrapnel wounds of soft tissue of the left thumb.  It was noted that the Veteran's left hand was hit by shrapnel but was never debrided.  The Veteran denied pain even when stretching and doing yoga, and he denied use of an assistive device.  The VA examiner noted that the Veteran sustained an injury to Muscle Group IX, i.e., intrinsic muscles of the left hand, which include muscles in the thenar and hypothenar eminence, lumbricales, dorsal and palmar interossei.  The Veteran had cardinal signs or symptoms attributable to his left hand muscle injury, specifically, "occasional" lowered threshold of fatigue and "occasional" fatigue-pain for the hypothenar muscle.  Muscle strength testing was normal, bilaterally.  The Veteran was negative for muscle atrophy.  The VA examiner concluded that the Veteran's left hand disability resulted in no functional impact.  See VA Muscle Injuries examination dated October 18, 2017.

The Veteran underwent a VA nutritional assessment in July 2018, at which time it was noted that he was negative for diminished functional status as measured by hand-grip strength.

On review of the evidence of record, both lay and medical, the Board finds that the Veteran's current 10-percent rating for retained shrapnel, left hand, under DC 5309, contemplates Group IX muscle impairment rated on the basis of limitation of motion.  In this regard, the 10-percent rating is the maximum available rating under the DCs governing limitation of motion where, as here, there is no evidence of functional loss, including limitation of motion.  See 38 C.F.R. § 4.73, DC 5309.  The only evidence of left Muscle Group IX impairment is reflected in the October 2017 VA muscles examination noting cardinal signs or symptoms of muscle disability, specifically "occasional" lowered threshold of fatigue and "occasional" fatigue-pain for the hypothenar muscle.  However, even assuming, for the purpose of discussion, that occasional lowered threshold of fatigue approximates fatigue from average use as set forth in the rating criteria under 38 C.F.R. § 4.56(d)(2)(ii), a rating higher than 10 percent would not be warranted considering that the record reflects that the Veteran is negative for impaired muscle substance and function, limitation of motion, functional loss, fascial defect, loss of muscle strength, and muscle atrophy, and the Veteran's retained shrapnel of the left hand does not impact his ability to work.  Additionally, the record does not reflect that the Veteran's disability involving Muscle Group IX involves any other Muscle Group.  Lastly, none of the evidence of record, lay or medical, demonstrates ankylosis of two or more of the digits of the Veteran's left hand or impairment beyond Muscle Group IX.  See id. at DCs 5216-5227, 5301-5308.  As such, a rating in excess of 10 percent for the Veteran's retained shrapnel, left hand, is not warranted.

The Board also considers a separate rating under DCs 8516-8716 for impairment of the ulnar nerve.  However, as there is no evidence of complete or incomplete paralysis of the Veteran's left ulnar nerve, or evidence of neuritis or neuralgia affecting the ulnar nerve, the rating criteria under these DCs are not for application.  See 38 C.F.R. § 4.124a, DCs 8516-8716.

Therefore, the Board finds that a rating in excess of 10 percent for retained shrapnel of the left hand (thenar eminence) is not warranted.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Left Hand Scar

The AOJ has assigned a noncompensable disability rating for the Veteran's left hand scar, effective June 1, 2009, under DC 7805.  38 C.F.R. § 4.118, DC 7805.  See Rating Decision dated March 10, 2009.  The Veteran claims that a compensable rating is warranted; however, for the reasons set forth below, the Board finds that a compensable rating is not warranted.

Scars are rated pursuant to criteria found under 38 C.F.R. § 4.118.

Under DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.

Pursuant to DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful.  38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id.

DC 7801 indicates that for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 10 percent rating is warranted.  Note (1) provides that a deep scar is one associated with underlying soft tissue damage.

Under DC 7805, other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC.  38 C.F.R. § 4.118, DC 7801-7805 (2018).

The Board notes that amendments were made to the criteria for rating the skin, effective August 13, 2018.  See 83 Fed. Reg. 32, 592 (July 13, 2018). The amendments did not change the criteria for rating scars under DCs 7800 and 7804. With regard to DCs 7801 and 7802, the terms deep, nonlinear, and superficial, were replaced with "underlying soft tissue damage." The revisions also divided the previously referenced body parts into various zones of the body and indicated that separate evaluations may be assigned for each affected zone.

Turning to the evidence, during a November 2008 VA neurological disorders examination, observation and examination over the scar area of the Veteran's left thenar was within normal limits.  The examiner noted that the scar was well-healed, there was no palpable deformity, and no pain on palpation.  The Veteran had good grip strength in the left hand (also the right hand) and no altered sensation to pinprick, vibration or light touch.  See VA Neurological Disorders examination dated November 26, 2008.

During VA examinations in May 2010, the examiner observed a scar 2.5 cm in length on the Veteran's left thenar eminence, which was not adherent, was not tender to touch, and there was no corresponding exit scar.  There were no residuals of nerve damage, tendon damage, bone damage, muscle herniation, loss of deep fascia or muscle substance, and no limitation of motion.  The VA examiner concluded that the retained shrapnel had no occupational effect and no effect on the Veteran's usual daily activities.  See VA Hand/Thumb/Finger Conditions examination dated May 20, 2010; VA Scars examination dated May 20, 2010.

During VA examinations in December 2011, the examiner noted that "there is not a perceptible left hand scar."  See VA Hand/Thumb/Finger Conditions examination dated December 8, 2011.  The same examiner observed that the Veteran had no scars anywhere on his body.  See VA Scars/Disfigurement examination dated December 8, 2011.

An October 2017 VA scars examination reflects that the examiner, as pertinent here, observed a 1.0 cm x 0.1 cm thin, linear scar on the Veteran's left thenar eminence, noting that it was "difficult to see."  The examiner added, "This is not 2.5 cm in size as noted in the previous C&P examination.  It is not tender and is very stable. No evidence of palpable shrapnel and no pain[.]" The examiner opined that the scar resulted in no functional impact.  See VA Scars/Disfigurement examination dated October 18, 2017.

In November 2020, the Veteran submitted a statement noting that he has shrapnel in his left hand as a result of a mortar attack in Iraq in 2006, which left a scar.

There are no private or VA treatment notes in the record reflecting complaints or symptoms associated with the Veteran's left thenar eminence scar.

On review of the evidence of record, both lay and medical, the Board finds that there is no evidence reflecting that the Veteran's scars are painful or unstable.  38 C.F.R. § 4.118, DC 7804.  The record does not reflect any limitation of function for a rating under DC 7805.  Overall, the weight of the evidence is against a finding that the left thenar scar more nearly approximates a compensable rating.  38 C.F.R. § 4.118.  There is also no evidence of any neurologic impairment associated with the scar.

Therefore, the Board finds that a compensable rating for a left hand scar is not warranted.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Right Foot Plantar Fasciitis with

Heel Spur and Fractured Right Fourth Toe

The AOJ has assigned a noncompensable disability rating for the Veteran's plantar fasciitis, right foot with heel spur and fracture of fourth toe, effective June 1, 2009, and a 10 percent rating, effective November 15, 2011, based on pain on palpation to the medial calcaneal tubercle and medial band of the plantar fascia, and pain with palpation and limited ROM of the right fourth toe.  See 38 C.F.R. § 4.118, DC 5284; Rating Decisions dated March 10, 2009 and October 29, 2014.

The Veteran claims that a higher rating is warranted; however, for the reasons set forth below, the Board finds that a compensable rating for the period prior to November 15, 2011 is not warranted and a rating in excess of 10 percent thereafter is not warranted.

During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021.  85 Fed. Reg. 230 (Nov. 30, 2020).  These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

Prior to February 7, 2021, bilateral plantar fasciitis was rated by analogy to flat foot under DC 5276, as the symptoms of the two disabilities are similar in nature.  Under DC 5276 for flatfoot, a 10 percent rating is warranted when there is moderate bilateral or unilateral pes planus with weight-bearing line over or medial to great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet.  A 30 percent r rating is assigned for severe bilateral flatfoot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A maximum 50 percent rating is assigned for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.7a, DC 5276.

Under the amended rating code, DC 5269 (plantar fasciitis) was added effective February 7, 2021.  The rating criteria under DC 5269 provides that a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis.  A 20 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, unilaterally.  A 30 percent rating is warranted when there is no relief from both non-surgical and surgical treatment, bilaterally.  Note 1 indicates that a 40 percent rating is warranted if there is actual loss of the use of the foot.  Note 2 instructs that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable.  38 C.F.R. § 4.7a, DC 5269.

DC 5284 is applicable to other foot injuries and provides 10, 20, and 30 percent ratings for foot injuries that are moderate, moderately severe, or severe in degree, respectively.

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe."  Spellers v. Wilkie, 30 Vet. App. 211, 219-20 (2018).  Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

Entitlement to a Compensable Rating prior to November 15, 2011

Turning to the record, May 2010 VA x-rays revealed small plantar calcaneal spur, subtle medial incurvation of the phalanges of the fourth and fifth digits, and minimal exostosis base of the fifth tarsal bone.  A small accessory ossicle adjacent to the cuboid bone was noted.  See Radiology report dated May 17, 2010.

During an October 2008 VA general medical examination, the examiner observed a scar on the Veteran's right heel the Veteran said was related to wart removal and was not painful or tender.  The scar measured 6 cm x 1 cm, was the same color as the surrounding skin, and there was slight thickening and elevation of 1 mm.  The examiner observed that the scar was stable, superficial, and non-adherent.  See VA General Medical examination dated October 21, 2008.

In November 2008, the Veteran underwent a VA joints examination.  He denied residual complaints or deficits of the right foot, and it was his impression that his right foot disorders had resolved.  The Veteran said he used no assistive devices for his right foot.   He denied flare-ups of his right fourth toe and right plantar fasciitis.  He denied any pain or residuals from the right foot and toe injuries, and he said his right foot disorders did not affect his activities of daily living or his job as a drummer.  On examination, the skin was intact, there was no erythema or effusion, and no signs of infection.  The right foot was non-tender to palpation about the plantar medial aspect and arc of his right foot and there was no pes planus deformity.  The examiner observed a 1.5 cm incision along the plantar medial aspect of the right foot.  There was no evidence of abnormal weight bearing, painful motion, edema, weakness, instability, or tenderness.  X-rays of the Veteran's right foot showed that he had a calcaneal heel spur.  His fourth toe was well aligned, and x-rays were negative for a fracture.  See VA Joints examination dated November 1, 2008.

The Veteran underwent a VA neurological disorders examination in November 2008, at which time his deep tendon reflexes were noted as 1+ and symmetrical at the Achilles tendons.  A Babinski test was negative.  Sensory testing was normal to pinprick, light touch, and vibration.  See VA Neurological Disorders examination dated November 26, 2008.

The Veteran was afforded a VA foot examination in May 2010.  The diagnosis was "resolved" plantar fasciitis with a right heel spur.  The Veteran said his right foot was not painful, he denied flare-ups and limitations standing and walking due to his right foot.  He also denied use of an assistive device.  On examination, the Veteran's gait was normal.  There was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight-bearing.  The Veteran was negative for hammertoes, skin and vascular abnormalities, malunion or nonunion of the tarsal or metatarsal bones, and muscle atrophy.  There was no abnormal ROM and joint function was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use.  X-rays revealed a small plantar calcaneal spur, subtle medial incurvation the phalanges of the fourth and fifth digits, a small accessory ossicle adjacent to the cuboid bone, and minimal exostosis base of the fifth tarsal bone.   See VA Feet examination dated May 20, 2010.

On review of the evidence of record, both lay and medical, the Board finds that the criteria for a compensable rating are not met or approximated for the rating period prior to November 15, 2011 for the Veteran's right foot plantar fasciitis with heel spur and fractured right fourth toe under DC 5276 for flatfoot.  There is no evidence of worsening of the Veteran's right foot symptoms, including approximation of moderate impairment of the right foot, e.g., weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the foot.  Moreover, to establish entitlement to a compensable rating of 10 percent under DC 5284, the record must demonstrate evidence of a moderate foot injury, and, as herein discussed there is no evidence of worsening symptoms or any symptoms for the period prior to November 15, 2011.  Indeed, the record reveals that the Veteran was negative for right foot and right fourth toe symptoms during this period.

While the Board acknowledges the Veteran's competence to assert worsening symptoms, to include his subjective belief that he is entitled to a higher rating, in this case, his assertions are outweighed by competent and credible medical evidence that evaluates the true extent of his impairment based on objective data coupled with the lay evidence.  In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment.  Although the Board is sympathetic to the Veteran's complaints of worsening symptoms, the evidence of record does not reveal symptomology sufficient to warrant a compensable rating for this period.

Therefore, the Board finds that a compensable rating for right foot plantar fasciitis with heel spur and fractured right fourth toe under the applicable DCs is not warranted for the period prior to November 15, 2011.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.14.

Entitlement to a Rating in Excess of 10 Percent from November 15, 2011

In November 2011, the Veteran again underwent a VA foot examination.  The examiner noted diagnoses of plantar fasciitis and residuals of a fractured right fourth toe.  The Veteran said his feet were "fine now."  He denied use of an assistive device.  On examination, the Veteran was negative for Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, claw foot, bilateral week foot, and malunion and nonunion of the tarsal and metatarsal bones.  There was pain on palpation to the right medial calcaneal tubercle and the medial band of the plantar fascia from proximal insertion to distal arch, as well as pain with palpation and movement of the right fourth toe.  The examiner observed a 2.0 cm surgical scar noted in the right medial instep.  The examiner noted that imaging studies of the Veteran's right foot reflected no abnormalities.  The examiner opined that residuals from the fracture to the right fourth digit and bilateral plantar fasciitis would not preclude the Veteran from being gainfully employed as the function of his right foot and fourth toe were normal at that time.  See VA Feet examination dated November 22, 2011.

September 2015 VA appointment notes reflect that the Veteran had been engaging in "rigorous physical activity."  On examination, the Veteran had steady gait and station.  During a February 2017 VA outpatient appointment, the Veteran described a recent burning sensation in his right foot.

The Veteran was afforded a VA foot examination in November 2017.  The examiner noted diagnoses of bilateral plantar fasciitis, tenosynovitis of the right foot, and residuals of a fractured right fourth toe.  It was noted that the Veteran had undergone right plantar fasciitis release surgery, without residuals.  The examiner observed a scar 2 cm x 0.1 cm on the right medial heel.  The Veteran denied use of assistive devices; however, it was noted that he used arch supports, custom orthotic inserts or shoe modifications, although the examiner did not specify the type of orthotics used in the examination report.  The examiner noted that the Veteran "does not currently have any symptoms related to plantar fasciitis or pain in the fourth toe.  He does complain of pain at the base of the fifth metatarsal styloid process right foot, which feels like 'it is going to bust.'  He states it is a burning pain.  He currently walks two miles every other day and tries to do yoga several days a week."  The Veteran denied flare-ups.  He denied pain associated with the plantar heel, plantar arch, or the fractured right fourth toe, and there was no pain with movement or palpation indicating peroneal tendonitis at the fourth toe.  Nevertheless, the Veteran endorsed pain at the lateral styloid process of the right fifth metatarsal base.  The examiner noted that pain did not cause functional loss and characterized the severity of the Veteran's right foot symptoms as "mild."  The examiner concluded that the Veteran's right foot conditions did not compromise weight bearing.  The examiner noted that the May 2010 right foot x-rays did not reflect degenerative or traumatic arthritis.  The examiner opined that the Veteran's right foot disorders did not impact his ability to work.  See VA Foot Conditions examination dated November 17, 2017.

August 2018 VA outpatient treatment notes reflect that the Veteran had been doing jumping jacks.  During a VA outpatient appointment in January 2019, the Veteran was negative for ankle edema and muscle tone was adequate, bilaterally.  It was noted that the Veteran had "adequate" ROM of all extremities.

The Veteran was afforded a VA foot examination in June 2021.  The examiner noted diagnoses of right plantar fasciitis, fractured right fourth toe, and plantar wart removal from the right foot.  The Veteran denied the use of an assistive device and he functional loss and flare-ups.  The Veteran reported having had surgery for plantar warts, bilaterally, but denied surgical treatment for plantar fasciitis.  On examination, there was no pain, including on passive motion, active motion, weight-bearing, non weight-bearing, and rest/non-movement.  There was no functional loss, bilaterally.  The examiner noted that the Veteran was negative for fatigability, weakness, lack of endurance, and incoordination which significantly limited functional ability after repeated use over time.  The examiner opined that the Veteran's right foot disorders caused no functional impact.  See VA Foot Conditions examination dated June 7, 2021.  In a June 2021 addendum, the VA examiner clarified that the Veteran had right foot surgery for plantar warts only, not plantar fasciitis, citing 1995 correspondence from the Veteran's physician.

A June 2021 VA scars examination reflects that the Veteran denied symptoms and medical treatment related to his right foot scar.  The examiner observed a scar at the medial and plantar aspect of the Veteran's right foot measuring 6 cm x 1 cm, which did not limit function and does not impact his ability to work.  See VA Scars examination dated June 7, 2021.

On review of the evidence of record, both lay and medical, the Board finds that the criteria for a rating higher than 10 percent are not met or approximated for the rating period from November 15, 2011 for the Veteran's right foot plantar fasciitis with heel spur and fractured right fourth toe under DCs 5276 for flatfoot.  There is no evidence of worsening of the Veteran's right foot symptoms, including approximation of moderate impairment of the right foot, e.g., weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the foot.  While the Veteran endorsed pain on palpation and the use of orthotics during the November 2017 VA examination, he also reported that he walked two miles daily, he tried to do yoga several times a week, and the VA examiner noted that the Veteran's right foot pain did not cause functional loss and characterized the right foot symptoms as "mild," which is consistent with other evidence of record for this period.

A higher 20 percent rating is not warranted under DC 5269 for plantar fasciitis for this period as the November 2017 VA examiner noted that the Veteran had undergone right plantar fasciitis release surgery and experienced no residuals.  

Lastly, a higher 20 percent rating is not warranted under DC 5284 for other foot injuries for this period as the record does not reflect moderately severe symptoms.  As noted above, the November 2017 VA examiner characterized the Veteran's right foot/right fourth toe symptoms as "mild."  Indeed, the treatment records reflect that the Veteran was physically active during this period, including walking two miles daily, jumping jacks, and other "rigorous" physical activity, and the June 2021 VA examiner noted that the Veteran was negative for right foot pain, there was no functional loss, fatigability, weakness, lack of endurance, or incoordination, and the Veteran's right foot disorders caused no functional impact.

While the Board acknowledges the Veteran's competence to assert worsening symptoms, to include his subjective belief that he is entitled to a higher rating, in this case, his assertions are outweighed by competent and credible medical evidence that evaluates the true extent of his impairment based on objective data coupled with the lay evidence.  As discussed above, VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment.

Although the Board is sympathetic to the Veteran's complaints of worsening symptoms, the evidence of record does not reveal symptomology sufficient to warrant a higher rating of 20 percent for the period from November 15, 2011.

Therefore, the Board finds that a 20 percent rating for right foot plantar fasciitis with heel spur and fractured right fourth toe under the applicable DCs is not warranted for the period from November 15, 2011.  There is no reasonable doubt to be resolved as to this issue, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.14.

The Board has also considered whether a separate rating may be warranted for the Veteran's right foot scar attributed to plantar wart removal.  However, as the record does not reflect that the plantar wart removal is related to the service-connected right foot/right fourth toe disability, a separate rating for the scar is not warranted.   See 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.310.

Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017).

REASONS FOR REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020).

VA's duty to assist includes making reasonable efforts to obtain private (non-VA) medical records.  38 C.F.R. § 3.159(c)(1).  Such reasonable efforts generally include an initial request and, if the records are not received, at least one follow-up request, unless a response indicates that the records sought do not exist or that a follow-up request for the records would be futile. Id.  See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (noting that the duty to assist is triggered when record evidence indicates the existence of potentially relevant private medical records); see also Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is appropriate where the record is inadequate).

Here, VA treatment records reflect that the Veteran was authorized by VA to obtain non-VA chiropractic treatment and acupuncture and massage therapies of chronic low back and right ankle pain, specifically, "[e]ight (8) authorized chiropractic visits" to include "chiropractic manipulative treatment, manual therapy, therapeutic exercise, and /or neuromuscular re-education" from Core Chiropractic Arizona.   See VA Administrative Note dated May 11, 2020; VA NONVA note dated May 12, 2020.  Additionally, in August 2020, an additional 36 non-VA treatments were approved.  See VA Administrative Note dated August 28, 2020.  VA administrative records appear to authorize treatment at Red Rock Chiropractic and Mountain Medicine Integrative Wellness Center.  See VA NONVA note dated October 14, 2020; VA Addendum dated November 19, 2020.

Accordingly, on remand, the RO must attempt to obtain outstanding private and VA records relevant to the Veteran's lumbar spine and right ankle disabilities.  38 C.F.R. § 3.159(c)(1); see Ivey, supra.

The Board emphasizes that the Veteran maintains the ultimate burden to demonstrate that an increased rating is warranted.  See Fagan, 573 F.3d at 1287-88.  Moreover, VA's duty to assist is a two-way-street; if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The matters are REMANDED for the following action:

1. Ensure that all outstanding VA treatment records are associated with the claims file.

2. Contact the Veteran, and, with his assistance, identify outstanding records of pertinent medical treatment, including chiropractic, acupuncture, and massage, for his lumbar spine degenerative joint disease and residuals of a right ankle fracture from non-VA treatment providers, including, but not limited to Core Chiropractic Arizona, Mountain Medicine Integrative Wellness Center, and Red Rock Chiropractic.  Request that the Veteran identify other providers who treated lumbar spine degenerative joint disease and residuals of a right ankle fracture.  If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e).

3. Then, after undertaking any additional development deemed necessary readjudicate the remanded claims.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Farrell, 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.