Citation Nr: 21009801 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-06 462A DATE: February 23, 2021 ORDER Entitlement to an initial rating in excess of 10 percent disabling for left foot paresthesia, status post neuroma with scar is denied. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for a right hand disability, other than status post boxer’s fracture of the right 5th metacarpal is denied. FINDINGS OF FACT 1. The Veteran’s left foot paresthesia, status post neuroma with scar is manifested by no more than moderate symptoms. 2. The Veteran’s GERD does not cause symptoms of persistently frequent episodes of epigastric distress, dysphagia, substernal pain, arm pain, nor shoulder pain. 3. The preponderance of the evidence is against finding that right hand disability, other than status post boxer’s fracture of the right 5th metacarpal, began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7804-5284. 2. The criteria for a disability rating in excess of 10 percent for service-connected GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. 3. The criteria for service connection for a right hand disability, other than status post boxer’s fracture of the right 5th metacarpal are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1985 through March 2007. His service personnel records show an exemplary performance record, including receipt of the Air Force Commendation Medal, among many others. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in November 2018, when the claim for service connection for a right hand disability was remanded and the claims for entitlement to higher initial ratings for the Veteran’s left foot disability and GERD were partially granted. The Veteran appealed the Board’s partial grants to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2019 Order, granting a June 2019 Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the November 2018 Board decision consistent with the terms of the Joint Motion. In February 2020, the Board remanded the claims for medical opinions. The claims have now been returned to the Boards for further adjudication in accordance with the Joint Remand. In May 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R.§4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App.119 (1999). In McGrath v. Gober, 14Vet. App.28 (2000), the Court held that when the Veteran was actually experiencing symptoms is what is relevant for assigning rating effective dates, not when evidence was created. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. 1. Entitlement to an initial rating in excess of 10 percent disabling for left foot paresthesia, status post neuroma with scar The Veteran has an initial 10 percent rating under 38 C.F.R. § 4.71a, DC 7804-5284 for paresthesia left foot, status post neurolysis and neuroma with scar. Thus, the disability is rated by analogy to a scar rated as a foot disability. 38 C.F.R. §§ 4.20, 4.27. DC 5284 provides (for each foot) a 10 percent rating for moderate foot injury, a 20 percent rating for moderately severe foot injury, a 30 percent rating for severe foot injury, and a note to the code provides a 40 percent rating for actual loss of use of the foot. In December 2008, the Veteran stated that pain in his left foot had mostly resolved following the surgery to remove a neuroma in service, but that he had permanent numbness in the area around the surgical site. In a November 2009 VA examination, the Veteran reported to the examiner that he was experiencing pain approximately 20 out of 30 days per month, generally related to overuse or a cold environment. The examiner noted that he had a well-healed, non-tender surgical scar measuring 2.5cm long x 3mm wide. The examiner additionally stated that the Veteran had a loss of sensation along the surgical scar and for 2cm in all directions, as confirmed by a monofilament test. The examiner diagnosed the Veteran with paresthesia. In his August 2010 NOD, the Veteran again stated that he was experiencing pain in his foot approximately 20 out of 30 days per month due to factors such as cold and walking more than 300 feet. He explained that because he worked in computer server rooms that are kept at cold temperatures, he had to be in cold environments at work. The Veteran also emphasized that he experienced numbness along his scar and on most of his toes and stated that about once per month he would experience cramping in his toes. In April 2015 the Veteran sought treatment from a private physician for complaints that his left foot was twitching during his sleep, which would wake his wife. The Veteran noted at that time that his foot was largely non-painful but confirmed continued numbness around the surgical site. The Veteran’s doctor indicated that he believed the nocturnal foot twitching was related to his surgical procedure and resulting nerve symptoms. A foot examination showed some numbness, but normal joint position sense and range of motion, and no signs of neuropathy. At his May 2018 hearing, the Veteran testified that his pain is less frequent than it has been in the past, but that when it occurs it tends to be more severe. An August 2020 VA Peripheral Nerves Disability Benefits Questionnaire (DBQ) shows that the Veteran’s paresthesia left foot, status post neurolysis and neuroma had its onset in 2005. Regarding the left lower extremity, the Veteran reported mild constant pain, moderate intermittent pain, mild paresthesias, and moderate numbness. Muscle strength testing, reflex exam, and sensory exam were normal. The examiner noted that the Veteran limps on his lower left extremity, due to pain and numbness of the left foot. The examiner reported that the Veteran has difficulty standing and walking. In an accompanying August 2020 medical opinion, the examiner determined that the severity of the Veteran’s left foot paresthesia is moderate. The examiner reasoned that the Veteran has intermittent burning left foot pain and considered the Veteran’s reports of intermittent burning pain of the left foot and numbness of the left foot. An August 2020 VA Scars DBQ shows that the Veteran has a scar associated with paresthesia left foot, status post neurolysis and neuroma. The scar was not noted to be painful or unstable and measured 3.1 by .2 cm, for a total approximate area of .62 cm2. The Board notes that the Veteran is rated by analogy under DC 5284 because there is no DC that directly applies to his disability. It has considered applicability of DC 5279 for anterior metatarsalgia and DCs 7801 (scars not of the head, face, or neck that are deep and nonlinear), 7802 (scars not of the head, face, or neck that are superficial and nonlinear), and/or 7804 (unstable or painful scars). However, the Board finds that a separate or higher compensable rating is not warranted under these diagnostic codes as the Veteran’s scar is not deep or painful and does not cover an area necessary for a separate compensable rating. Second, although the Veteran does have a scar associated with his surgical procedure, the evidence shows that the scar is superficial, linear, stable, and nonpainful. Additionally, DC 7805 states any disabling effects not considered under DCs 7800-04 should be evaluated under another appropriate DC. Thus, it is appropriate to rate his scar numbness (the only symptomatology associated with his scar) under DC 5284 based on the language of DC 7805. Because DC 5284 allows the Board to rate all left foot symptomatology related to his neuroma removal surgery based on overall severity, and the DC allows a veteran to receive higher rating percentages if symptomatology becomes more severe, the Board finds that DC 5284 is the most appropriate code under which to rate the Veteran’s symptomatology. The words “mild,” “moderate,” and “severe” are not defined in the VA 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.” See 38 C.F.R. §4.6. The Board finds that the Veteran’s symptoms of mild constant pain, moderate intermittent pain, mild paresthesias, moderate numbness around the surgical site, occasional pain, described as intermittent burning pain, up to 20 days per month, occasional cramping, and nocturnal twitching do not more nearly approximate a “moderately severe” disability such that a higher 20 percent evaluation under DC 5284 is warranted. In making this determination, the Board has also considered the August 2020 VA examiner’s opinion regarding the severity of the Veteran’s paresthesia and has considered whether a separate or higher rating is warranted under 38 C.F.R. § 4.124a under Diagnostic Code 8525 or other neurological Diagnostic Code. However, the Veteran’s symptomatology is encompassed in the DC 5284 rating and a separate rating would result in prohibited pyramiding. 38 C.F.R. § 4.14. The examiner noted that the Veteran limps on his lower left extremity, due to pain and numbness of the left foot. The examiner reported that the Veteran has difficulty standing and walking. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, Sharp, and Correia. However, an increased evaluation for the Veteran's post-operative neuroma is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain and numbness on numerous occasions. However, the effect of the pain in the Veteran's right foot is contemplated in the currently assigned 10 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the 2020 VA examiner specifically indicated that muscle strength testing, reflex exam, and sensory exam were normal. Therefore, the Board finds that the preponderance of the evidence is against a higher rating. Accordingly, the Board finds that a rating in excess of 10 percent rating for the Veteran’s left foot disability is not warranted for the period on appeal. 2. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) The Veteran’s GERD is currently rated as 10 percent disabling pursuant to DC 7346. Because the claim is an initial claim for increased rating, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). DC 7346 provides ratings for hiatal hernia but is used for rating GERD by analogy. 38 C.F.R. § 4.114. A 60 percent rating is appropriate for GERD 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. Id. A 30 percent evaluation is provided for GERD with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 10 percent rating is appropriate for GERD with two or more of the symptoms for the 30 percent rating of less severity. Id. In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Ratings under Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other. 38 C.F.R. § 4.114. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In December 2008 the Veteran submitted a statement explaining that he began experiencing his GERD symptoms that would cause him to vomit approximately five to six times per week. The Veteran noted in his NOD that he told the January 2010 VA examiner specifically about his heartburn and regurgitation symptoms at the time of the exam, although they were not specifically described in the examination report. In the Veteran’s August 2010 Notice of Disagreement (NOD), he explained that he is woken up approximately two to three times per week with symptoms of heartburn and regurgitation, and that he must sleep propped up on pillows to help mitigate the symptoms. The medical record shows that the severity of the Veteran’s GERD increased in approximately February 2014. At his May 2018 hearing, the Veteran testified that he continues to experience GERD symptoms at night that wake him up, including heartburn, nausea, and regurgitation. An August 2020 VA examination report shows that the onset of the Veteran’s GERD occurred in 1997 and he was diagnosed in 2003. The Veteran reported that the course of the condition has stayed the same since its onset. The Veteran reported burning sensation in the upper abdomen, lower chest, and treats his GERD with Prilosec. The examiner stated that the Veteran has symptoms of pyrosis and reflux. Neither persistently frequent episodes of epigastric distress, dysphagia, regurgitation, substernal pain, arm pain, nor shoulder pain were shown. The examiner stated that the Veteran’s esophageal condition causes increased fatigue due to lack of sleep because of symptoms and that the Veteran cannot concentrate and focus. In an accompanying August 2020 medical opinion, the examiner described the severity of the Veteran’s GERD as moderate, noting that the Veteran reported symptoms of pyrosis and reflux are persistent and worse at times. The Veteran reported that these symptoms are worse without the ameliorative effects of medication, and without the medication he experiences pyrosis and reflux. Based on the foregoing, the Board finds that the Veteran does not meet the criteria for a rating in excess of 10 percent disabling under DC 7346 because he does not experience persistently frequent episodes of epigastric distress, dysphagia, substernal pain, arm pain, nor shoulder pain. The 30 percent criteria are conjunctive, meaning that all the criteria listed must be met for the percentage rating to be granted. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Finally, the Veteran’s symptoms do not meet the criteria for a 60 percent rating. While the record suggests he may have experienced pain and/or vomiting at some points during the period on appeal, there is no evidence that he has experienced material weight loss or hematemesis as a result of his GERD. Because the four symptoms are listed with an “and,” all four must exist to meet the 60 percent rating criteria. Likewise, the evidence does not show that the Veteran has experienced melena with moderate anemia; and, as the primary effect of the Veteran’s GERD is lost sleep(and have not included, for instance, hospitalization or lost jobs), the Board finds that the Veteran’s symptoms are not productive of a severe impairment of health. Thus, the Veteran does not meet the criteria for a 60 percent rating under DC 7346. In sum, the Veteran’s symptoms do not warrant a rating in excess of 10 percent disabling for his service-connected GERD. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 3. Entitlement to service connection for a right hand disability, other than status post boxer’s fracture of the right 5th metacarpal An October 2020 rating decision granted service connection for status post boxer's fracture, right 5th metacarpal (claimed as reduced mobility and strength of the right hand due to break of little finger knuckle). In addition to status post boxer’s fracture, right 5th metacarpal, the October 2020 VA examiner diagnosed the Veteran with right thumb and index finger osteoarthritis. The examiner stated that the right thumb and index finger osteoarthritis was found accidentally on imaging. The examiner reasoned that there are no records to support that osteoarthritis occurred during service. The examiner further reasoned that the Veteran’s osteoarthritis is not a progression of the boxer’s fracture, as different fingers are involved. The examiner opined that the Veteran’s osteoarthritis of the right thumb and index finger less likely than not had its clinical onset during active service or is related to any incident of service, to include the Veteran’s fracture of the fifth metacarpal in December 1986 during service. In summation, while the Veteran has a current diagnosis of the right thumb and index finger osteoarthritis, and evidence shows that the Veteran fractured his fifth metacarpal in December 1986 during service, the preponderance of the evidence weighs against finding that the Veteran’s right thumb and index finger osteoarthritis began during service or is otherwise related to an in-service injury, event, or disease. The evidence is not in equipoise, and thus the benefit of the doubt is not for consideration.  This decision is in no way meant to diminish the   Veteran’s honorable service to our country; however, the Veteran’s claim of service connection for a right hand disability, other than status post boxer’s fracture of the right 5th metacarpal must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.