Citation Nr: 21015245
Decision Date: 03/17/21	Archive Date: 03/17/21

DOCKET NO. 15-19 334
DATE: March 17, 2021

ORDER

Entitlement to an initial disability rating of 30 percent for bilateral plantar fasciitis, from January 3, 2013 to August 6, 2019, is granted.

Entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis for the entire period on appeal, is denied.

Entitlement to a separate compensable disability rating for right foot hallux rigidus associated with bilateral plantar fasciitis from August 6, 2019, is denied.

Entitlement to an initial disability rating in excess of 10 percent chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines ("headache disability"); prior to August 6, 2019; is denied.

Entitlement to a disability rating in excess of 50 percent chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability;”) from August 6, 2019; is denied.

Entitlement to an initial compensable disability rating for vitreous floaters with photophobia is denied.

Entitlement to an initial compensable disability rating for bilateral hearing loss; prior to August 15, 2019; is denied.

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss; from August 15, 2019; is denied.

Entitlement to an initial compensable disability rating for gastroesophageal reflux disease (GERD) prior to August 6, 2019, is denied.

Entitlement to a disability rating in excess of 10 percent for GERD from August 6, 2019, is denied.

Entitlement to an initial compensable disability rating for erectile dysfunction is denied.

Entitlement to an initial compensable disability rating for left shoulder scar is denied.

Entitlement to service connection for a disability of the toes, to include as due to an undiagnosed Gulf War illness is denied.

Entitlement to service connection for anisometropia, right eye amblyopia, and right eye hyperopic astigmatism ("eye disability other than vitreous floaters with photophobia") is denied.

Entitlement to service connection for a heart disability, to include atrial septal defect is denied.

Entitlement to service connection for a right ankle disability, to include as due to an undiagnosed Gulf War illness is dismissed.

REMANDED

Entitlement to an initial compensable disability rating for right leg scar is remanded.

Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease thoracolumbar and thoracic spine (“back disability”); prior to August 6, 2019; is remanded.

Entitlement to a disability rating in excess of 20 percent for degenerative disc disease thoracolumbar and thoracic spine (“back disability”); from August 6, 2019; is remanded.

Entitlement to an initial disability rating in excess of 10 percent for right bicep strain is remanded.

Entitlement to an initial compensable disability rating for left knee arthritis with, shin splints; prior to August 6, 2019; is remanded.

Entitlement to a disability rating in excess of 10 percent for left knee arthritis, with shin splints; from August 6, 2019; is remanded.

Entitlement to an initial compensable disability rating for right knee arthritis, with shin splints; prior to August 6, 2019; is remanded.

Entitlement to a disability rating in excess of 10 percent for right knee arthritis, with shin splints; from August 6, 2019; is remanded.

Entitlement to an initial compensable disability rating for left ankle tendonitis prior to August 6, 2019, is remanded.

Entitlement to a disability rating in excess of 10 percent for left ankle tendonitis from August 6, 2019, is remanded.

Entitlement to an initial compensable disability rating for left hand minimal osteoarthritis of the first carpometacarpal (“left hand disability”) is remanded.

Entitlement to service connection for a neck disability, to include as due to an undiagnosed Gulf War illness is remanded.

Entitlement to service connection for left ear disability, to include as due to an undiagnosed Gulf War illness is remanded.

Entitlement to service connection for an abdominal condition other than GERD, to include an undiagnosed Gulf War illness is remanded.

Entitlement to service connection for rosacea, to include an undiagnosed Gulf War illness is remanded.

Entitlement to an initial compensable disability rating for history of heat injury with rhabdomyolysis (also claimed as bilateral leg condition to include numbness and tingling and chronic pain) is remanded.

FINDINGS OF FACT

1. The Veteran’s bilateral plantar fasciitis manifested in bilateral pain on use of the feet and the pain is accentuated on use.

2. The Veteran’s right foot hallux rigidus associated with bilateral plantar fasciitis does not result in severe symptoms more nearly approximating unilateral hallux valgus equivalent to amputation of great toe or unilateral hallux valgus operated with resection of metatarsal head.

3. Prior to August 6, 2019, the Veteran’s chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) did not produce characteristic prostrating attacks occurring an average once per month, or more frequently.

4. From August 6, 2019, the Veteran’s chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) produced characteristic prostrating attacks more frequently than once per month.

5. From August 6, 2019, the Veteran’s chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) has been rated at the schedular maximum.

6. For the entire period on appeal, the Veteran’s visual acuity is no worse than 20/40 corrected distance of the right eye and 20/20 or better corrected distance in the left eye with no defects of visual field or muscle function.

7. For the entire period on appeal, the Veteran’s service-connected bilateral hearing loss has not been manifested by hearing loss acuity worse than Level II hearing in the right ear, and Level II hearing loss in the left ear.

8. Prior to August 6, 2019, the Veteran’s GERD produced abdominal cramping below the umbilicus twice per week for three to four minutes that was relieved by bowel movement.

9. From August 6, 2019, the Veteran’s GERD produced pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances that occurred four or more times per year lasting 1-9 days.

10. For the entire period on appeal, the Veteran’s service-connected erectile dysfunction manifested by loss of erectile power, but not penile deformity.

11. The Veteran’s left shoulder scar measures 6 square centimeters, is not painful, nor is it unstable.

12. The preponderance of the evidence of record is against finding that the Veteran has had a toe disability at any time during or approximate to the pendency of the claim.

13. The preponderance of the evidence of record is that the Veteran’s anisometropia, right eye amblyopia, and right eye hyperopic astigmatism ("eye disability other than vitreous floaters with photophobia") is a congenital defect.

14. The Veteran’s heart disability (atrial septal defect) is a congenital defect that the Veteran had since birth and was not aggravated beyond its natural progression during service.

15. On June 3, 2020, prior to the promulgation of a decision in the appeal, the RO granted the Veteran’s claim for entitlement to service connection for a right ankle disability and there remains no allegations of errors of fact or law for appellate consideration.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for bilateral plantar fasciitis prior to August 6, 2019 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5269, Diagnostic Code 5276, Diagnostic Code 5284.

2. The criteria for a disability rating in excess of 30 percent for bilateral plantar fasciitis for the entire period on appeal have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5269, Diagnostic Code 5276, Diagnostic Code 5284.

3. The criteria for compensable rating for right foot hallux rigidus associated with bilateral plantar fasciitis 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 5281.

4. The criteria for a disability rating in excess of 10 percent for chronic paroxysmal hemicrania (also diagnosed as visual aura associated with migraines) prior to August 6, 2019; 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, 4.124A, Diagnostic Code 8100.

5. The criteria for a disability rating in excess of 50 percent for chronic paroxysmal hemicrania (also diagnosed as visual aura associated with migraines) from August 6, 2019; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124A, Diagnostic Code 8100.

6. The criteria for a compensable disability rating for vitreous floaters with photophobia have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.76A, 4.79, Diagnostic Code 6099, Diagnostic Code 6080.

7. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 6.655, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, DC 6100.

8. The criteria for a compensable rating for service-connected GERD prior to August 6, 2019; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.114, Diagnostic Code 7346.

9. The criteria for a disability rating in excess of 10 percent for service-connected GERD, from August 6, 2019; 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.

10. The criteria for entitlement to a compensable disability rating for erectile dysfunction have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.31, 4.115b, Diagnostic Code 7599-7522.

11. The criteria for a compensable disability rating for left shoulder scar have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802.

12. The criteria for service connection for a toe disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

13. The criteria for service connection for anisometropia, right eye amblyopia, and right eye hyperopic astigmatism (“eye disability other than vitreous floaters with photophobia”) are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

14. The criteria for service connection for heart disability (atrial septal defect) are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

15. The criteria for dismissal of an appeal by the appellant for entitlement to service connection for a right ankle disability have been met.  38 U.S.C. § 7105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty for training in the United State Army Reserve from October 1989 until February 1990.  The Veteran also served on active duty in the United States Army from May 2002 until his honorable retirement in January 2013, including service in Iraq.  His decorations include a Combat Action Ribbon and a Bronze Star Medal.

This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).

These matters come before the Board of Veterans’ Appeals (Board) on appeal from the June 2013 rating decision by the Seattle, Washington Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In December 2018, the Board remanded the case to the RO for further development.

The Board notes that the Veteran’s 100 percent disability rating has previously been declared permanent and total.  See July 13, 2020 Correspondence.  Although the Veteran’s disabilities are considered permanently and totally disabled due to his service-connected disabilities, the Veteran has a right to continue to pursue his claims and as noted in greater detail below, when a remand is required, the Veteran is entitled to the appropriate adjudication to each and every claim, even if the Veteran prevails on his appeals, there will be no difference in his benefits.

The Veteran is also notified that the duty to assist is a two-way-street.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Therefore, the Veteran is required to cooperate with the remand directives for new evaluations to proceed with his claims.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The 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.  Where 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 for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.”  Thus, “the plain language of [section] 5110(b)(2)…only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim.”

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

Additionally, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes).  38 C.F.R. § 4.14.  When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

1. Entitlement to an initial disability rating in excess of 10 percent for left foot plantar fasciitis, prior to August 6, 2019

2. Entitlement to an initial disability rating in excess of 10 percent for right foot plantar fasciitis, prior to August 6, 2019

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher disability rating for his bilateral plantar fasciitis.  However, it is unclear as to the basis of the Veteran’s assertion.

The assigned Diagnostic Code 5284 suggests that the Veteran’s bilateral plantar fasciitis (also claimed as bilateral feet) is rated based on injury to the Veteran’s feet.  38 C.F.R. § 4.71a.  A review of the evidence reflects that the Veteran’s bilateral plantar fasciitis (also claimed as bilateral feet) has manifested in sharp bilateral pain in the morning when the Veteran initially gets out of bed, requiring him to walk slowly to be able to be on his feet for a long time; and pain on manipulation of his bilateral feet, including pain accentuated on manipulation.

During the entire period on appeal, the Veteran has been rated for each foot at 10 percent disabled for a moderate disability.

However, the Board finds that the first adequate VA examination for the Veteran’s bilateral plantar fasciitis was the August 2019 VA examination in which the RO determined that the Veteran’s bilateral plantar fasciitis should be combined into a single disability under Diagnostic Code 5276.

Affording the Veteran the benefit of the doubt, the Board will find that the Veteran’s bilateral plantar fasciitis should be combined into one disability under Diagnostic Code 5276 throughout the period on appeal and will be addressed below.  38 C.F.R. § 4.71a.

As will be addressed in greater detail below, the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries was amended in November 2020 and February 2021 to include Diagnostic Code 5269 for plantar fasciitis.  See 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) and 86 Fed. Reg. 8142 (Feb. 4, 2021) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269).

3. Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fasciitis from January 3, 2013 to August 6, 2019

4. Entitlement to an initial disability rating in excess of 30 percent for bilateral plantar fasciitis from August 6, 2019

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher disability rating for his bilateral plantar fasciitis.  However, it is unclear as to the basis of the Veteran’s assertion.

As noted above, plantar fasciitis is now assigned a specific diagnostic code under the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries.  Under Diagnostic Code 5269, a 30 percent disability rating is warranted for plantar fasciitis with no relief from both non-surgical and surgical treatment, bilateral.  A 20 percent disability rating is warranted for plantar fasciitis with no relief from both non-surgical and surgical treatment, unilateral.  A 10 percent disability rating is warranted for all other circumstances, unilateral or bilateral.  Note (1): With actual loss of use of the foot, rate at 40 percent.  Note (2): 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 appliable.  38 C.F.R. § 4.71a, Diagnostic Code 5269.

The Board notes that the Veteran has not had surgical treatment for his bilateral plantar fasciitis nor does the record reflect a recommendation for surgical treatment.  Therefore, under the new Diagnostic Code 5269, the Veteran would be entitled to only a 10 percent disability rating (bilaterally, not for each individual foot).  However, because the disability was service-connected prior to the new Diagnostic Code, and a change in the Veteran’s disability to Diagnostic Code 5269 would result in a reduction in benefits, the Board will consider evaluation under the prior rating criteria.

As noted above, prior to August 6, 2019, the Veteran’s bilateral plantar fasciitis was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284.  Affording the Veteran the benefit of the doubt, the Board has changed the Diagnostic Code to 5276 and will include the analysis for the entire period on appeal based upon the only adequate VA examination in the record, the August 6, 2019 VA examination.  38 C.F.R. § 4.71a.

From August 6, 2019, the Veteran’s bilateral plantar fasciitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot.  Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support.  A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral.  A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; 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.  A maximum 50 percent rating is warranted for bilateral acquired flatfoot; 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. § 4.71a, Diagnostic Code 5276.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Veteran was afforded a VA examination in August 2019.  The August 2019 VA examiner found that the Veteran’s bilateral plantar fasciitis produced pain on manipulation with pain accentuated on manipulation.

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for each foot prior to August 6, 2019 and in excess of 30 percent for bilateral plantar fasciitis.  The Board acknowledges the Veteran’s lay reports of symptoms of and that there was functional loss due to pain, weakened movement, excess fatigability, pain during flare-ups, and pain during repetitive use over time.  However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that symptoms would not result in symptoms more nearly approximating pronounced bilateral acquired flatfoot.  Specifically, the Veteran does not have marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, nor severe spasm of the tendo achillis on manipulation that are not improved by orthopedic shoes or appliances.

The Board has also considered the other Diagnostic Codes pertaining to the foot.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms.  Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).  Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule.  Id.  

Here, the Veteran’s disability is unlisted and rated by analogy.  In this regard, Diagnostic Codes 5277 through 5279 and 5281 through 5283 are not applicable.  The Veteran is diagnosed with plantar fasciitis, which has been rated under Diagnostic Code 5276 for Flatfoot.  Diagnostic Codes 5276 and 5284 are both applicable.  However, utilizing Diagnostic Code 5276 provides the Veteran with a greater overall disability rating because the Veteran’s disability is not rated as either moderately severe nor severe under Diagnostic Code 5284 but rather is rated as Severe under Diagnostic Code 5276 due to the Veteran’s symptom of bilateral pain on manipulation and the pain is accentuated on manipulation.

Additionally, the Veteran does have another service-connected disability with distinct manifestations.  In this regard, Diagnostic Codes 5280 is not applicable.  The Veteran is service connected for hallux rigidus of the right foot, which will be addressed in greater detail below.  Therefore, Diagnostic Code 5280 is applicable, but results in a separately rated disability.

In conclusion, affording the Veteran the benefit of the doubt, the Board finds that the preponderance of the evidence warrants a disability rating of 30 percent for bilateral plantar fasciitis is appropriate for the entire period on appeal.  Specifically, from January 3, 2013 to present.  Therefore, for the period prior to August 6, 2019, the Veteran’s claim is granted to an increased disability rating of 30 percent (as a single disability), and no higher; and, for the period from August 6, 2019, the Veteran’s claim is denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

5. Entitlement to a separate compensable disability rating for right foot hallux rigidus associated with bilateral plantar fasciitis from August 6, 2019

The Veteran asserts that he is entitled to a higher disability rating.  However, it is unclear as to the basis of the Veteran’s assertion.

The Veteran’s right foot hallux rigidus associated with bilateral plantar fasciitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5280, for unilateral hallux valgus.  Under Diagnostic Code 5280, a maximum 10 percent rating is warranted for unilateral hallux valgus severe, if equivalent to amputation of great toe.  A maximum 10 percent rating is also warranted for unilateral hallux valgus operated with resection of metatarsal head.  38 C.F.R. § 4.71a, Diagnostic Code 5280.  

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Board finds that the preponderance of the evidence is against a compensable rating for right foot hallux rigidus associated with bilateral plantar fasciitis.  The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time.  However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the Veteran’s symptoms would not result in severe symptoms more nearly approximating unilateral hallux valgus equivalent to amputation of great toe or unilateral hallux valgus operated with resection of metatarsal head.

The Board has also considered the other Diagnostic Codes pertaining to the foot.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms.  Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).  Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule.  Id.  

Here, the Veteran’s disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code.  However, the Veteran does have other service-connected disabilities with distinct manifestations.  In this regard, Diagnostic Codes 5276 and 5284 are not applicable because the Veteran’s bilateral plantar fasciitis is separately rated.

In conclusion, the Board finds that the preponderance of the evidence is against a compensable rating for right foot hallux rigidus associated with bilateral plantar fasciitis.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

6. Entitlement to an initial disability rating in excess of 10 percent chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”); prior to August 6, 2019

7. Entitlement to a disability rating in excess of 50 percent chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”); from August 6, 2019

The Veteran asserts that he is entitled to a higher disability rating for his headaches.  However, it is unclear as to the basis of the Veteran’s assertion.

The Veteran’s chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) is rated under 38 C.F.R. § 4.124A, Diagnostic Code 8100, for migraine headaches.  Under Diagnostic Code 8100, a 50 percent disability rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 30 percent disability rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months.  A 10 percent disability rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months.  A noncompensable disability rating is warranted for less frequent attacks.  38 C.F.R. § 4.124A, Diagnostic Code 8100.

The rating criteria does not define “prostrating;” nor has the Court.  According to MERRIAM WEBSTER, “prostration” means “utter physical exhaustion or helplessness”.  See www.merriam-webster.com/dictionary/prostration.  A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1523 (30th Ed. 2003), in which “prostration” is defined as extreme exhaustion or powerlessness.

Prior to August 6, 2019, the Veteran’s service-connected chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) were rated at 10 percent disabling under 38 C.F.R. § 4.124A, Diagnostic Code 8100.  From August 6, 2019, the Veteran’s service-connected chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) are rated at 50 percent disabling under 38 C.F.R. § 4.124A, Diagnostic Code 8100.  The Veteran generally asserts that a higher disability rating is warranted for his chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability,”) but has provided no specific argument in support of his claim.  Furthermore, as noted above, the maximum disability rating for 38 C.F.R. § 4.124A, Diagnostic Code 8100 is 50 percent disabling and the Veteran has been at the maximum schedular rating since August 6, 2019.

The Veteran was afforded a VA examination in May 2012.  The May 2012 VA examination noted that the Veteran did not have symptoms of prostrating headaches.  The Veteran was afforded a second VA examination in August 2019.  The August 2019 VA examiner noted that the Veteran reported pulsing and throbbing headaches twice a week, lasting 2-3 days with non-headache symptoms of nausea, sensitivity to light, sensitivity to sound, and changes to vision.  The August 2019 VA examiner noted characteristic prostrating attacks more frequently than once per month.

As noted above, a disability rating of 10 percent (the Veteran’s disability rating prior to August 6, 2019) requires characteristic prostrating attacks averaging one in 2 months over the past several months and a 30 percent disability rating requires characteristic prostrating attacks occurring on average once a month over the last several months.  The evidence does not demonstrate that the Veteran had characteristic of prostrating attacks occurring on average once a month prior to the August 6, 2019 VA examination; therefore, the Veteran is not entitled to a disability rating in excess of 10 percent prior to August 6, 2019.  Furthermore, the Board finds that the Veteran is not entitled to a disability rating in excess of 50 percent disabling from August 6, 2019 for his service-connected chronic paroxysmal hemicrania, also diagnosed as visual aura associated with migraines (“headache disability”) because the Veteran is already at the schedular maximum.

The Board also notes that the effective date of August 6, 2019 for the increased disability rating to 50 percent is appropriate because under 38 C.F.R. § 3.400(o)(1), if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) is the appropriate effective date.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

8. Entitlement to an initial compensable disability rating for vitreous floaters with photophobia

As a preliminary matter, the Board notes that the Veteran also has a claim on appeal for entitlement to service connection for an eye disability other than vitreous floaters with photophobia; which will be addressed later in this decision.

The Veteran asserts that he is entitled to a higher disability rating.  However, it is unclear as to the basis of the Veteran’s assertion.

Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. §§ 4.76(a), 4.79.  The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found.  38 C.F.R. § 4.76(b).  Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function.  Id.  Unless medically contraindicated, the fundus must be examined with the Veteran’s pupils dilated.  Id.

Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye.  38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009.  Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066.  Impairment of Visual Fields is rated under Diagnostic Codes 6080 through 6081.

The Veteran is rated under Diagnostic Code 6099-6080.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen.  38 C.F.R. § 4.27.

Diagnostic Code 6099 indicates that the Veteran is rated analogous to a disease of the eye.  The Board acknowledges that vitreous floaters with photophobia is not a disorder specifically listed in the rating schedule and, therefore, it should be rated by analogy to a closely related disease or injury.  38 C.F.R. §§ 4.20, 4.27.

Diagnostic Code 6080 provides disability ratings where there is a defect to the visual field.  38 C.F.R. § 4.79.  Under Diagnostic Code 6080, a 10 percent disability rating is warranted for concentric contraction of the visual field with remaining field of 46 to 60 degrees bilaterally, contraction of the visual field with remaining field of 16 to 45 degrees unilaterally, or the loss of the superior half or nasal half of the visual field bilaterally.  38 C.F.R. § 4.79, Diagnostic Code 6080.  A 20 percent disability rating may be awarded for concentric contraction of the visual field with remaining field of 6 to 15 degrees unilaterally.  38 C.F.R. § 4.79.  A 30 percent disability rating may be awarded for concentric contraction of the visual field with remaining visual field of 31 to 45 degrees bilaterally, contraction of the visual field with remaining field of 5 degrees unilaterally, or loss of the temporal or inferior half of the visual field bilaterally.  Id.  A 50 percent disability rating is warranted for concentric contraction of the visual field with remaining field of 16 to 30 degrees bilaterally.  Id.  A 70 percent disability rating is warranted for concentric contraction of the visual field with remaining field of 6 to 15 degrees bilaterally.  Id.  Finally, a 100 percent disability rating is warranted for concentric contraction of the visual field with remaining field of 5 degrees.  Id.

Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen’s test type or its equivalent.  38 C.F.R. § 4.76(a).  Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present.  38 C.F.R. § 4.76(b).  However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity.  Id.

An August 2019 VA examination reveals that the Veteran had the following visual defects.  See August 2019 VA examination, p. 3.

08.05.2019	 

 	Uncorrected Distance	Corrected Distance	Uncorrected Near	Corrected Near

RIGHT	20/40	20/40	15/200	20/40

LEFT	20/20

or better	20/20

or better	20/40	20/20

or better

The August 2019 VA examination also revealed that the Veteran does not have a documented visual field defect.  See August 2019 VA examination, p. 8.

Based on the evidence above, a compensable disability rating for the Veteran’s bilateral vitreous floaters is not warranted.

The Veteran’s visual acuity of 20/40 corrected distance of the right eye, 20/20 or better corrected (and uncorrected) distance of the left eye, which warrants a noncompensable percent disability rating.

Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable disability for a loss of visual acuity.  In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

9. Entitlement to an initial compensable disability rating for bilateral hearing loss; prior to August 15, 2019

10. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss; from August 15, 2019

The Veteran asserts that he is entitled to a higher disability rating.  However, it is unclear as to the basis of the Veteran’s assertion.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 4.85, Diagnostic Code 6100.

To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII.  

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

An August 2019 VA examination reveals that the Veteran reported difficulty hearing since 2004.  38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

08.15.2019	HERTZ

 	1000	2000	3000	4000	Avg	CNC

RIGHT	60	60	70	70	65	100

LEFT	50	55	65	75	61.25	98

Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear.  Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

The Board notes that the RO granted an increased disability rating to 10 percent for the above results.  As noted above, the results warrant a noncompensable disability rating and as discussed below, the results were also found to be exaggerated.  However, the Board recognizes that regardless of this error by the RO, the Veteran’s overall 100 percent disability rating would remain the same.

The Board also notes that the VA examiner found the pure tone threshold results were not valid because while the Veteran consistently responded, responses were not in agreement with SRT, 3FA, or SDS.  There were also no false positive responses that are typical to see during hearing tests and instructions were given over headphones at a normal conversational level for which the Veteran could understand and follow, again not possible based on pure tones provided.  The August 2019 VA examiner concluded that the Veteran’s results suggest an exaggeration of responses and that he has normal hearing, bilaterally.  However, even with the exaggeration of responses, if they were in fact valid, would result in a noncompensable disability rating.

An April 2012 VA examination reveals that the Veteran reported difficulty hearing since 2004.  38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:  

04.25.2012	HERTZ

 	1000	2000	3000	4000	Avg	CNC

RIGHT	30	55	55	55	48.75	96%

LEFT	20	20	20	35	28.75	96%

Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear.  Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.  An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

Based on the evidence above, a compensable disability rating for the Veteran’s bilateral hearing loss is not warranted for the entire period on appeal.  The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing.  The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).  The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned.  See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable disability rating for hearing loss.  In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

11. Entitlement to an initial compensable disability rating for GERD prior to August 6, 2019

12. Entitlement to a disability rating in excess of 10 percent for GERD from August 6, 2019

The Veteran asserts that he is entitled to a higher disability rating.  However, it is unclear as to the basis of the Veteran’s assertion.

The Veteran’s GERD is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia.  Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

The Veteran was afforded a VA examination in May 2012.  The May 2012 VA examiner noted that the Veteran reported that he noticed increased bowel movements in 2011.  The Veteran reported that he was advised that he should monitor symptoms and keep a log as it may be due to stress.  The only symptom that the Veteran reported was cramping twice per week for 3-4 minutes below the umbilicus that is relieved by having a bowel movement.

The Veteran was afforded a second VA examination in August 2019.  The August 2019 VA examiner noted that the Veteran reported symptoms of pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances of 4 or more times per year lasting 1-9 days.  The Board notes that the August 2019 VA examiner noted that the reported symptoms were not productive of considerable impairment of health.

For the reasons that follow, the Veteran’s GERD manifested in one symptom prior to August 6, 2019 and manifested in two or more symptoms for the 30 percent evaluation of less severity from August 6, 2019.

The Veteran is competent to report his readily observable symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Accordingly, the Veteran’s GERD manifested in two or more symptoms for the 30 percent evaluation of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under DC 7346.

A higher 30 percent rating 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.  The record does not reflect persistently recurring symptoms productive of considerable impairment of health.  Thus, the Veteran’s GERD did not more nearly approximate persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A higher 30 percent rating under DC 7346 is not warranted.

13. Entitlement to an initial compensable disability rating for erectile dysfunction

The Veteran asserts that he is entitled to a compensable disability rating for his erectile dysfunction.  However, it is unclear as to the basis of the Veteran’s assertion.

The Veteran’s erectile dysfunction is rated under Diagnostic Code 7522 for a penile deformity with loss of erectile power.  Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. 38 C.F.R. § 4.115b.  There is no other alternative criterion warranting assignment of a compensable disability rating and a 20 percent rating is the only schedular rating provided.

During an August 2019 VA examination, the Veteran stated that he had loss of sexual function.  The August 2019 VA examiner found that the Veteran’s penis, testes, and epididymis were all normal.  However, the Veteran requested that his prostate not be physically examined and acknowledged the only cause for his erectile dysfunction is depression and medications used to treat depression (meaning the only abnormality is the loss of erectile power).  

In Williams v. Wilkie, 30 Vet. App. 134, 138 (2018), the United States Court of Appeals for Veterans Claims (Court) noted that, “[a]lthough DC 7522 requires a “deformity” for a compensable rating, VA has not expressly defined this term.”  The Court defined deformity as a “distortion of any part or general disfigurement of the body,” to include internal and external deformities.  Id (citing Dorland’s Illustrated Medical Dictionary 478 (32d ed. 2012).  In this case, the evidence does not reflect that there were internal or external deformities of this contemplated type.  As noted, the Veteran has denied having any penile deformities or abnormalities.  Moreover, to the extent he has loss of erectile power, the Veteran is already being compensated for this.  Specifically, he has been determined to be entitled to special monthly compensation (SMC), i.e., a “higher rate” of compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) because of resultant loss of use of a creative organ.

Based on the foregoing, the Board finds that an initial compensable rating for erectile dysfunction is not warranted throughout the period on appeal.  Moreover, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

14. Entitlement to an initial compensable disability rating for left shoulder scar

The Veteran asserts that he is entitled to a higher disability rating.  However, it is unclear as to the basis of the Veteran’s assertion.

The Veteran’s left shoulder scar is rated under Diagnostic Code 7802.

The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018.  These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018.  Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.  The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear.  Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating.  38 C.F.R. § 4.118.  Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage.  Id.

Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  38 C.F.R. § 4.118.  Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments.

The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under Diagnostic Code 7802 because the Veteran’s left shoulder scar is not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater.  In the present case, the Veteran’s scar measures 6 square centimeters, is not painful, nor is it unstable.

The Board has also considered the other Diagnostic Codes pertaining to scars.    However, the Veteran’s left shoulder scar is not of the head, face, or neck, is not deep and non-linear, and is not associated with underlying soft tissue damage.  Moreover, the Veteran’s left shoulder scar is not unstable or painful.  Therefore, Diagnostic Codes 7800, 7801, and 7804, both prior to and from August 13, 2018, are inapplicable.  Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805.  As noted above, the Veteran’s scar measures 6 square centimeters, is not painful, nor is it unstable.

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, he does not assert, and medical treatment records do not show, that the Veteran’s left shoulder scar is manifest by an area or areas of 144 square inches (929 sq. cm.) or greater; nor is it painful or unstable.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for left shoulder scar.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015).  Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Additionally, as noted above, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes).  38 C.F.R. § 4.14.  When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

15. Entitlement to service connection for a disability of the toes, to include as due to an undiagnosed Gulf War illness

The Veteran asserts that his toe disability began during service and has existed since that time or is related to his service-connected disabilities and that sometimes his toes feel numb.

First, the Board finds that there is a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran is diagnosed with hallux rigidus of the right side.  The Board notes that the Veteran is already service-connected for this disability and there are no other diagnosed disabilities of the toe(s).  See August 2019 VA examination, p. 2.

In the absence of an additional disability (beyond the service-connected hallux rigidus of the right side) during the pendency of the claim, service connection cannot be established.  See Brammer v. Derwinski, 2 Vet. App. 223 (1992).  There is also insufficient evidence of a disability at any point during the claim period or shortly before.  See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Accordingly, entitlement to service connection is denied.

At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis.  Consideration should be given to the impact of functional limitation.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018).  Here there is no assertion of functional limitation due to toe disabilities.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

16. Entitlement to service connection for anisometropia, right eye amblyopia, and right eye hyperopic astigmatism ("eye disability other than vitreous floaters with photophobia")

The Veteran asserts that he is entitled to service connection for anisometropia, right eye amblyopia, and right eye hyperopic astigmatism (“eye disability other than vitreous floaters with photophobia”).

The issue of a current disability is not in dispute.  The Veteran is diagnosed with anisometropia, right eye amblyopia, and right eye hyperopic astigmatism (“eye disability other than vitreous floaters with photophobia”).  As was addressed in the December 2018 Board decision, the Veteran’s disability is a congenital or developmental defect and not “diseases or injuries” within the meaning of the applicable statutes and regulations.  38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510 516 (1996).  However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by a superimposed disease or injury in service.  See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).  Therefore, the question before the Board is if the Veteran’s eye disability was aggravated beyond its natural progression due to his service.

The Board finds that the evidence of record does not support a finding that the Veteran’s anisometropia of the right eye amblyopia and hyperopic astigmatism is related to active service, including aggravated beyond its natural progression.  The Veteran was afforded VA examinations in May 2012 and August 2019.

As noted above, the May 2012 VA examination was determined to be inadequate.

The August 2019 VA examiner opined that the Veteran’s right eye amblyopia existed since birth; and that anisometropia and right eye hyperopic astigmatism are refractive errors appropriately occurring and progressing with age following its natural course; and therefore it is less likely than not (less than 50 percent probability) that the disabilities were aggravated beyond their natural progression due to the Veteran’s service.  Accordingly, entitlement to service connection for right eye amblyopia and hyperopic astigmatism is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

17. Entitlement to service connection for a heart disability, to include atrial septal defect

The Veteran asserts that his heart disability (atrial septal defect) began during service and has existed since that time.

The issues of a current disability (atrial septal defect) and in-service event (March 2011 transient ischemic attack) are not in dispute.  

As will be addressed in greater detail below, the Veteran’s disability is a congenital or developmental defect and not “diseases or injuries” within the meaning of the applicable statutes and regulations.  38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510 516 (1996).  However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by a superimposed disease or injury in service.  See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).  Therefore, the question before the Board is if the Veteran’s heart disability, to include atrial septal defect, was aggravated beyond its natural progression due to his service.

The Board finds that the evidence of record does not support a finding that the Veteran’s atrial septal defect is related to active service, nor was it aggravated beyond its natural progression due to the Veteran’s service.

The Veteran was afforded a VA examination in August 2019.  The August 2019 VA examiner diagnosed the Veteran with left ventricular hypertrophy due to hypertension and aortic sclerosis with left ventricular ejection fraction (LVEF) of 68 percent and abnormal septal motion with no clear etiology and mild concentric LVH.  The Veteran’s interview-based METs were 1-3 with symptoms of dyspnea and fatigue.  The August 2019 VA examiner opined that he is unable to determine the Veteran’s METs level due solely to the cardiac condition(s) without resorting to mere speculation because the Veteran does not have a heart condition which would limit his activities.  Although the August 2019 VA examiner indicated that the claimed (heart) condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness; the examiner also explained that they cannot answer the question as there was no clear diagnosis of VSD vs PFO and that the opinion of a cardiologist would be required.

An addendum opinion by a cardiologist was provided in December 2020.  The December 2020 VA examiner opined that the Veteran’s heart disability (atrial septal defect) is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness; and the Veteran’s heart disability (atrial septal defect), which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  The December 2020 VA examiner explained that the Veteran’s heart disability (atrial septal defect) is definitely congenital and was present at birth and that atrial septal defects are the third most common type of congenital heart disease and that the murmur associated with atrial septal defects often may be subtle and may be missing during an entrance examination in an otherwise healthy appearing young man with no cardiac symptoms.  The December VA 2020 examiner also noted that there is no evidence by EKG, chest x-ray, or echocardiogram that the Veteran’s atrial septal defect underwent a permanent increase in severity during his active service despite the Veteran experiencing a transient ischemic attack while on active duty on March 11, 2011 because the symptoms of which cleared within 24 hours and, as far as can be determined, have not recurred.  Furthermore, the December 2020 VA examiner noted that transient ischemic attacks may occur in individuals with atrial septal defect or patent foramen ovale.  However, in the present case, there was no permanent neurologic deficit and no recurrence.  Accordingly, entitlement to service connection for atrial septal defect is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

18. Entitlement to service connection for a right ankle disability, to include as due to an undiagnosed Gulf War illness

In the June 2020 rating decision, the RO granted the Veteran’s claim for entitlement to service connection for a right ankle disability.  Therefore, there remains no allegations of errors of fact or law for appellate consideration and the Veteran’s appeal is dismissed.  38 U.S.C. § 7105.

Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

REASONS FOR REMAND

1. Entitlement to an initial compensable disability rating for right leg scar is remanded.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran was afforded a VA examination in August 2019.  However, the August 2019 VA examination is internally inconsistent.  Specifically, the Veteran is diagnosed with a left thigh scar, but it is completed under the right lower extremity portion of the VA examination.  See August 2019 VA examination, pp. 2, 5.  Because the August 2019 VA examination is internally inconsistent, it is inadequate and remand for a new examination is required.

2. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease thoracolumbar and thoracic spine (“back disability”); prior to August 6, 2019; is remanded.

3. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease thoracolumbar and thoracic spine (“back disability”); from August 6, 2019; is remanded.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

While the record contains a contemporaneous VA examination regarding the Veteran’s degenerative disc disease of the thoracolumbar and thoracic spine, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  Specifically, the August 2019 VA examiner simply indicated that the Veteran reported “[f]lares at least twice a week often without provocation [and it] improves to baseline with rest.”  However, the August 2019 VA examiner did not provide information on the additional functional loss (if any) nor the duration of any flare beyond “at least twice a week.”  Therefore, remand is required.

The RO is advised that the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244) was ammended November 30, 2020.

Because the Veteran’s disability is rated under Diagnostic Code 5243, consideration of the revised criteria must also be considered and discussion of the rating criteria for both prior to and subsequent to the November 30, 2020 changes in the rating criteria must be addressed.

4. Entitlement to an initial disability rating in excess of 10 percent for right bicep strain is remanded.

5. Entitlement to an initial compensable disability rating for left knee arthritis with, shin splints; prior to August 6, 2019 is remanded.

6. Entitlement to a disability rating in excess of 10 percent for left knee arthritis, with shin splints; from August 6, 2019 is remanded.

7. Entitlement to an initial compensable disability rating for right knee arthritis, with shin splints; prior to August 6, 2019 is remanded.

8. Entitlement to a disability rating in excess of 10 percent for right knee arthritis, with shin splints; from August 6, 2019 is remanded.

9. Entitlement to an initial compensable disability rating for left ankle tendonitis prior to August 6, 2019 is remanded.

10. Entitlement to a disability rating in excess of 10 percent for left ankle tendonitis from August 6, 2019 is remanded.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran was afforded a VA examination in August 2019.  The August 2019 VA examiner noted that the Veteran does report flare-ups of the elbow or forearm, specifically that “[the Veteran’s right bicep strain] [f]lares a couple times per month if the [V]eteran uses the arm too much.”  The August 2019 VA examiner also noted flare-ups of the knee and/or lower leg “…at least twice monthly if on feet too long and …cannot run hard to go up and down stairs and hard to squat.”

While the record contains a contemporaneous VA examinations regarding the Veteran’s right bicep strain, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups including severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.

Because the August 2019 VA examiner failed to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, remand is required.

11. Entitlement to an initial compensable disability rating for left hand minimal osteoarthritis of the first carpometacarpal (“left hand disability”)

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

With regard to the claim for an increased disability rating for left hand disability, as the Board noted in the December 2018 Board decision, the Veteran reported having right thumb and left-hand pain.  On examination, the Veteran’s “hand” was examined and ranges of motion including the thumb were noted, but the examiner did not specify which hand was examined.

The August 2019 VA examiner noted that the May 3, 2012 x-rays, compared to the September 15, 2011 right hand radiographs [showed] minimal osteophytosis at the right first carpometacarpal joint [with a] note say[ing] left hand, but the images are labelled right hand.  Furthermore, the examiner also provided that “there is no change in the service connected diagnosis and no additional diagnoses have been rendered…” and “…the service connected diagnosis has resolved.”  However, the examiner did not provide x-rays of the Veteran’s left hand to clarify the severity of his disability.

It is unclear if the examiner is indicating that the left-hand disability has resolved or that there was an error and the Veteran’s left hand was never injured but the right-hand disability resolved.  The examiner did diagnose the Veteran with fracture right thumb with residual traumatic arthritis of the right first carpometacarpal joint.

It appears that the Veteran may have erroneously been service connected for minimal osteoarthritis 1st carpometacarpal left hand (claimed as bilateral hand) and a possibility that the Veteran’s Right Thumb Fracture also claimed as right hand condition should have been appropriately titled “fracture right thumb with residual traumatic arthritis of the right first carpometacarpal joint.”

12. Entitlement to service connection for a neck disability, to include as due to an undiagnosed Gulf War illness is remanded.

13. Entitlement to service connection for left ear disability, to include as due to an undiagnosed Gulf War illness is remanded.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran asserts that his neck disability is due to carrying heavy rucks and changing large vehicle tires during service, resulting in a gradual onset of neck pain in 2004 which worsened after a heat injury.  Furthermore, the Veteran asserts that his left ear disability (peripheral vestibular disorder) is due or worsened by hitting his head (which caused a concussion).

The Veteran was afforded a VA examination in August 2019.  The August 2019 VA examiner opined that the Veteran’s neck disability (cervical strain) is less likely than not (less than 50 percent probability) proximately due to chemical exposure during the Gulf War as this is known to be caused by altered biomechanics of the joints of the  neck due to outside forces and not due to chemical agents.

The Veteran was afforded a VA examination in August 2019.  The August 2019 VA examiner opined that the Veteran’s left ear disability (peripheral vestibular disorder) is less likely than not (less than 50 percent probability) proximately due to chemical exposure during the Gulf War as this is known to be caused by inflammation or injury (such as concussion that the Veteran describes) and not due to chemical agents.

In the present case, the VA examiner did not provide a nexus opinion nor rationale for any other theory of entitlement for the Veteran’s neck disability.  Specifically, that the neck disability is due to carrying heavy rucks and changing large vehicle tires during service, resulting in a gradual onset of neck pain in 2004 which worsened after a heat injury.  Therefore, remand is required.

Furthermore, although the examiner indicated a potential positive nexus “such as concussion that the Veteran describes” for the Veteran’s left ear disability, the examiner does not indicate that they verified the existence of a concussion sufficient to cause the Veteran’s left ear disability during service nor appears to have evaluated the Veteran’s service treatment records.

14. Entitlement to service connection for an abdominal condition other than GERD, to include an undiagnosed Gulf War illness is remanded.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran underwent a VA examination in August 2019.  The August 2019 VA examiner indicated a negative response to the question “Does the Veteran now have or has he ever been diagnosed with an intestinal condition (other than surgical or infectious).”  The Veteran reported daily abdominal cramping and diarrhea at least 8 times daily with intermittent nausea and flare-ups approximately 2 days per month.

Although the August 2019 VA examiner did not diagnose a disability, the VA examiner noted that the Veteran has insufficient testing in records by gastroenterology to render a specific diagnosis for this claim but is prescribed continuous medication of Zofran and Pehnergan for control of his intestinal condition(s).

This examination appears to be internally inconsistent.  Specifically, the negative response to the question “Does the Veteran now have or has he ever been diagnosed with an intestinal condition (other than surgical or infectious);” and the Veteran is prescribed Zofran and Pehnergan for control of his intestinal conditions; and there is insufficient testing in records by gastroenterology to render a specific diagnosis.  Therefore, remand is required.

15. Entitlement to service connection for rosacea, to include an undiagnosed Gulf War illness is remanded.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran was afforded a VA examination in August 2019.  The August 2019 VA examiner opined that rosacea may have multiple symptoms including skin redness and pimples (and) [i]t is due to environmental factors such as temperature extremes, sunlight, wind, alcohol, hot drinks, and spicy foods; not due to chemical exposure.

However, the August 2019 VA examiner did not provide an opinion as to direct service connection if this disability had its onset while the Veteran was on active duty and has continued since that time.

16. Entitlement to an initial compensable disability rating for history of heat injury with rhabdomyolysis (also claimed as bilateral leg condition to include numbness and tingling and chronic pain) is remanded.

Finally, because a decision on the remanded issue of entitlement to an increased disabiltiy rating for degenerative disc disease thoracolumbar and thoracic spine (“back disability”) could significantly impact a decision on the issue of entitlement to an initial compensable disability rating for history of heat stroke injury with rhabdomyolysis (also claimed as bilateral leg condition to include numbness and tingling and chronic pain), the issues are inextricably intertwined.  A remand of the claim for entitlement to an initial compensable disability rating for history of heat stroke injury with rhabdomyolysis (also claimed as bilateral leg condition to include numbness and tingling and chronic pain) is required.

The Board notes that the August 2019 VA examiner remarked that the Veteran described other muscle groups with weakness (and) only muscle group XII could be objectively confirmed on examination; and that the examiner is unable to differentiate weakness due to heat injury with rhabdomylolysis from right lumbar radiculopathy with IVDS due to symptom overlap.

The RO is advised that upon readjudication, they must address the symptom overlap, how it is adjudicated with consideration of the anti-pyramiding regulations.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right leg scar.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups (if any), and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative disc disease thoracolumbar and thoracic spine (“back disability”).  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.

In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right bicep strain.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  

In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, including clarification of “…if [V]eteran uses arm too much.”  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee arthritis with shin splints and his bilateral ankle tendonitis.  The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria.  Additionally, the examiner should identify any symptoms that are specific to each disability.

In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, including clarification of “…if on feet too long.”  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected minimal osteoarthritis 1st carpometacarpal left hand (claimed as bilateral hand).  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.

The examiner must also determine if the Veteran has, or has ever had minimal osteoarthritis 1st carpometacarpal left hand or if the Veteran actually has minimal osteoarthritis 1st carpometacarpal right hand.  If the Veteran determines that the Veteran has never hand minimal osteoarthritis 1st carpometacarpal left hand but rather minimal osteoarthritis 1st carpometacarpal right hand, the examiner must determine the current severity of his service-connected minimal osteoarthritis 1st carpometacarpal right hand.

In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).] 

6. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran’s cervical strain (neck disability) from a VA examiner.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.  

The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical strain (neck disability) had onset in, or is otherwise related to, active service; including but not limited to the Veteran’s assertions that it is due to carrying heavy rucks; and/or changing large vehicle tires; and/or caused by or aggravated by his service-connected history heat injury with rhabdomyolysis (also claimed as bilateral leg condition to include numbness and tingling and chronic pain).  

7. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran’s peripheral vestibular disorder (left ear disability) from a VA examiner.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.  

The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral vestibular disorder (let ear disability) had onset in, or is otherwise related to, active service; including but not limited to the Veteran’s assertions that it is due to hitting his head and getting a concussion, aggravating his vertigo.

8. Schedule the Veteran for a VA examination for his abdominal condition other than GERD, to include an undiagnosed Gulf War illness.  The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Is the Veteran’s abdominal condition other than GERD at least as likely as not (50 percent probability or greater) related to service, including an undiagnosed Gulf War illness?

The examiner must provide a detailed rationale to support the opinion(s) provided.  

In providing the requested opinion, consider the Veteran’s description of his symptoms as well as his post-service symptoms.  If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted.  Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible?

9. Schedule the Veteran for a VA examination for his rosacea.  The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Is rosacea at least as likely as not related to service, including had its onset in and has continued since active service; and/or service during the Gulf War in the Persian Gulf?  

Provide a rationale to support the opinion(s).  

In providing the requested opinion, consider the Veteran’s description of his in-service onset and symptoms as well as his post-service symptoms.  If there is any medical reason to accept or reject the proposition that the Veteran’s reported onset and symptoms in service and thereafter represented the onset of his current disability, this should be noted.  Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible?

10. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal (including addressing pyramiding regulations), including the inextricably intertwined issue[s] of entitlement to an initial compensable disability rating for history of heat injury with rhabdomyolysis (also claimed as bilateral leg condition to include numbness and tingling and chronic pain).

If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.

If necessary, return the case to the Board for further appellate review.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Deemer, 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.