Citation Nr: 21067434 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-15 093 DATE: November 4, 2021 ORDER Entitlement to a 20 percent, but no higher, rating for a right foot disability is granted, subject to regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 for gastritis, duodenitis and gastric polyp (claimed as stomach tumor) is denied. FINDINGS OF FACT 1. The Veteran's right foot disability is manifested by no more than moderately severe symptoms. 2. The Veteran's gastritis, duodenitis and gastric polyp did not more nearly approximate symptoms that were productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for a 20 percent, but no higher, rating for right foot disability are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284 (2021). 2. The criteria for a disability rating in excess of 10 percent for service-connected gastritis, duodenitis and gastric polyp (claimed as stomach tumor) are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, DC 7346 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 2001 to December 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 this case was before the Board and the issue was remanded to the agency of original jurisdiction (AOJ) for additional development. INCREASED RATING Right Foot Disability Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran filed a Notice of Disagreement (NOD) with the December 2014 rating decision which granted the Veteran an initial 10 percent rating. The Veteran has been assigned a 10 percent rating for his service-connected right foot injury pursuant to the criteria of DC 5284. 38 C.F.R. § 4.71a. When a foot condition is specifically listed in the Rating Schedule, it must be rated under the DC that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Unlisted conditions, on the other hand, may be rated under DC 5284. Id. Under DC 5284, foot injuries are rated as 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned. The terms moderate, moderately severe, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of 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. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (flare ups) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see 38 C.F.R. §§ 4.40, 4.45, 4.59. While DC 5284 is not based on limitation of motion, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). On August 2014 VA examination, the Veteran reported that he injured his foot during service when he was pulling something heavy across the flight line and his right great toe was turned upward forcefully. He stated that the top of his right foot and the base of his big toe always hurt, that he had to favor his heel, and that he could not push off his toes. He reported that he had pain at the base of his great toe. He indicated that pushing things with his foot, running, and prolonged walking exacerbated his foot pain. He reported having flare ups when he is on his feet for too long, he works too hard, or if he overexerts the foot. He indicated that it was like he had something "sharp in there" and that when his pain gets to a 10, he cannot walk and has to stay off the foot. He reported flare ups occurred once or twice a week and lasted about a day or two. He reported having functional loss as he was unable to jog or full-out sprint and that he could not stay on his feet for too long. He reported needing good cushions in his shoes. He could not do anything too physical, like pushing or pulling. The examiner noted that he had a moderate right foot injury from right foot strain. The examiner indicated that the foot condition did not compromise weight bearing, but did require over-the-counter shoe inserts to increase the cushion in his shoes. The examiner also indicated that there was pain on weight bearing and disturbance of locomotion. The examiner noted that the right foot had a normal arch, normal alignment of the toes, full range of motion of the toes, and decreased great toe strength with extension 4/5 (decreased range of motion secondary to pain). His foot was tender to palpation on the top of his right foot medial side from his great toe to the mid-foot. His gait was normal when wearing shoes, but when barefoot, the Veteran did not push off with his toes. There were no arthritic conditions noted nor any other foot problems, such as pes planus or hallux valgus. He did not use any assistive devices as a normal mode of locomotion. The examiner noted that his right foot pain was worse with pushing off with his toes, running, prolonged walking, and prolonged standing. On September 2019 VA examination, the examiner provided diagnoses of a right foot strain as well as right tibial sesamoiditis. The Veteran complained of daily pain in his right foot. He reported functional impairment in that he can no longer run and that standing and walking were affected. The Veteran reported that flare ups did not impact the function of the foot. The examiner noted that the Veteran underwent surgery in 2015 which removed the right tibial sesamoid. There were no residual symptoms from this surgery. The examiner indicated the severity of the right foot injury was mild. The foot condition did not chronically compromise weight bearing, but the Veteran did need to wear special shoes. The examiner indicated the Veteran did have pain on physical exam that contributed to functional loss. The examiner noted the functional loss included pain on movement, pain on weight-bearing and nonweight-bearing, deformity, disturbance of locomotion, interference with standing, and a lack of endurance. The Veteran indicated these were daily problems and that he had to take breaks due to pain. The Veteran did not use any assistive devices as a normal mode of locomotion. The examiner indicated that he could not walk fast and limped. There were no arthritic conditions noted nor any other foot disabilities, such as pes planus or hallux valgus. May 2020 VA treatment records reflect that the Veteran had chronic right foot pain and that he was wearing customized shoes. The provider noted the Veteran still experienced pain and limping. The Board concludes that this evidence most nearly approximates right foot injury symptoms that are moderately severe. Throughout the period on appeal, the Veteran has described having daily foot pain that affects his ability to stand and walk. On August 2014 VA examination, he also had decreased range of motion in his toes due to pain. On September 2019 VA examination, the examiner noted the Veteran's functional loss included pain on movement, pain on weight-bearing and nonweight-bearing, deformity, disturbance of locomotion, interference with standing, and a lack of endurance. The Veteran also reported having to take breaks due to pain. The evidence also reflects the Veteran wears custom shoes and limps. In examining this evidence in a light most favorable to the Veteran and considering DeLuca factors, the Board finds it is at least in equipoise that the Veteran's right foot injury residuals most nearly approximate the criteria for a higher 20 percent rating, based on moderately severe impairment. However, a preponderance of the evidence is against a finding that the Veteran's disability manifests with symptoms reflecting severe impairment. The Board has considered whether a higher rating is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and has concluded that such is not warranted. The limitations and functional impact the Veteran experiences due to pain, disturbance of locomotion, interference with standing, and a lack of endurance are accounted for in the increased 20 percent rating for moderately severe symptomatology. The evidence does not demonstrate additional functional limitation more closely approximating the severe symptoms at any time during the appeal period. The Board has considered whether the Veteran is entitled to a separate or higher rating under any other applicable DC of the rating schedule. 38 C.F.R. § 4.71a, DCs 5276-5284. The Veteran does not have a diagnosis of or symptoms approximating pes planus (DC 5276), weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toe (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). Thus, evaluation under these DCs will not be further discussed. Additionally, the criteria used to evaluate the feet were recently revised, effective February 7, 2021, to provide evaluation of plantar fasciitis under new DC 5269. 85 Fed. Reg. 76453 (Nov. 30, 2020), rev'd 86 Fed. Reg. 8142 (Feb. 4, 2021). However, the evidence does not reflect that the Veteran has plantar fasciitis; therefore, a separate or higher rating under this new DC from the effective date of the revised regulation is not warranted. In sum, the criteria for a rating of 20 percent, but no higher, for a right foot injury are met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Gastritis, Duodenitis & Gastric Polyp (claimed as stomach tumor) The Veteran filed a Notice of Disagreement (NOD) with the December 2014 rating decision which granted the Veteran his initial 10 percent rating. During the appeal period, the Veteran's service-connected gastrointestinal disability has been evaluated as 10 percent disabling pursuant to the criteria found at 38 C.F.R. § 4.114, DC 7399-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating; the additional diagnostic code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's gastritis, duodenitis, and gastric polyp has been rated under the criteria for a hiatal hernia. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (burning sensation), and regurgitation (backward flow), accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. 38 C.F.R. § 4.114, DC 7346. On August 2014 VA examination, the examiner diagnosed gastritis and duodenitis with a gastric polyp from 2004. The Veteran was taking Ranitidine at the time of this examination. The Veteran reported having nausea, stomach pain, and acid reflux. He indicated that he got pain in his right side a few times a month that lasted from an hour up to several hours. The Veteran complained of recurring episodes of symptoms that are not severe four or more times per year with these episodes lasting less than one day per episode. He reported abdominal pain at least monthly that was pronounced, periodic, and unrelieved by standard ulcer therapy. He had recurrent nausea four or more times a year lasting less than one day. He had recurrent vomiting four or more times a year lasting less than one day. He did not have incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. An October 2014 CT scan of the abdomen and pelvis found no hiatal hernia. Gastroesophageal reflux was observed. There was a small polypoid structure outlined by contrast in the distal gastric body/antrum, but no ulcer or other abnormality. Duodenal bulb and sweep were unremarkable. A February 2015 upper endoscopy found small bowel mucosa and transitional-type antral and small bowl mucosa in the duodenum; and antral-type and oxyntic type gastric mucosa within normal limits in the stomach. On September 2019 VA examination, the Veteran reported that his symptoms had improved. He continued to take Ranitidine. The examiner noted the Veteran had recurring episodes of symptoms that were not severe three times a year that lasted for less than one day. The Veteran reported having abdominal pain that occurs less than monthly. He reported having transient melena (blood in stool) four or more times per year that lasted less than one day. He did not have any incapacitating episodes. The examiner noted that the functional impact of the condition was that sometimes he had to spend extra time in the bathroom. The examiner reviewed the Veteran's recent GI visits and concluded that the working diagnosis is that the fatty liver and irritable bowel syndrome (IBS) are the causes of the Veteran's abdominal pain. After reviewing an overall picture of the Veteran's GI issues the examiner concluded that the Veteran's condition has improved. The examiner takes this even a step further by noting that the Veteran's gastritis/duodenitis has resolved and is not the cause of the Veteran's current symptoms, nor is the gastric polyp. The Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to a 30 percent rating for his service-connected gastrointestinal disability at any time during the appeal period. Namely, a persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is required for a 30 percent rating. Here, the Veteran's gastrointestinal disability manifests with recurrent episodes of abdominal pain, nausea, and vomiting. However, the Veteran's GERD does not manifest with symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, or substernal or arm or shoulder pain. Additionally, the Veteran's symptoms have not been shown to cause considerable impairment of health. The Board acknowledges that the Veteran has experienced vomiting and melena; however, these symptoms are noted as only occurring four or more times a year, lasting for less than a day when they occur, and they are not shown to result in either considerable impairment of health or severe impairment of health. Additionally, the evidence does not reflect that the Veteran has melena with moderate anemia. The Board has also considered whether evaluation under another DC would afford the Veteran a higher rating. As noted, the Veteran's gastrointestinal disability includes gastritis, so the Board has considered whether evaluation under DC 7307, for gastritis would be more favorable to the Veteran. Under DC 7307, a 10 percent rating is warranted where there is chronic gastritis with small nodular lesions, and symptoms. A 30 percent rating is warranted where there is chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent rating is warranted where there is chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. The Board finds a preponderance of the evidence is against a finding that the Veteran is entitled to a higher 30 percent rating under DC 7307 as the evidence does not show multiple small eroded or ulcerated areas, as reflected by the October 2014 CT scan and February 2015 upper endoscopy. Consequently, the criteria for a rating in excess of 10 percent for the Veteran's service-connected gastrointestinal disability have not been met. As the preponderance of the evidence is against the Veteran's claim, there is no doubt to resolve. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.