Citation Nr: 21030439 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-27 409A DATE: May 18, 2021 ORDER Entitlement to an initial compensable disability rating, prior to November 7, 2019 for right lower extremity Achilles tendonitis is denied. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity achilles tendonitis, from November 7, 2019 is denied. Entitlement to an initial compensable disability rating, prior to November 7, 2019 for left lower extremity Achilles tendonitis is denied. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity achilles tendonitis, from November 7, 2019 is denied. Entitlement to an initial compensable disability rating for gastritis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for a right hand condition is remanded. Entitlement to service connection for a left hand condition is remanded. FINDINGS OF FACT 1. Prior to November 7, 2019, the Veteran's right lower extremity Achilles tendonitis was not manifested by moderate limitation in motion. 2. From November 7, 2019, the Veteran's right lower extremity Achilles tendonitis, has not been manifested by marked limitation of motion of the ankle. 3. Prior to November 7, 2019, the Veteran's left lower extremity Achilles tendonitis was not manifested by moderate limitation in motion. 4. From November 7, 2019, the Veteran's left lower extremity Achilles tendonitis, has not been manifested by marked limitation of motion of the ankle. 5. During the appeal period, the Veteran's gastritis has not resulted in small nodular lesions, eroded, or ulcerated areas, or severe hemorrhages. 6. The current evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating prior to November 7, 2019 for right lower extremity Achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 5271. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for right lower extremity Achilles tendonitis from November 7, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 5271. 3. The criteria for entitlement to an initial compensable disability rating prior to November 7, 2019 for left lower extremity Achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 5271. 4. The criteria for entitlement to an initial disability rating in excess of 10 percent for left lower extremity Achilles tendonitis, from November 7, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 5271. 5. The criteria for an initial compensable disability rating for gastritis have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Codes 7307. 6. The criteria for the award of TDIU benefits have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to December 1994, November 2004 to May 2005, and June 2009 to July 2011, with service in Qatar, Afghanistan, Iraq, and Kuwait during Operation Iraqi Freedom. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues were remanded by the Board for further development in November 2018. In a July 2020 rating decision, the RO increased the assigned initial ratings for right and left lower extremity Achilles tendonitis to 10 percent each, effective from November 7, 2019. The Veteran has not expressed satisfaction with the higher initial disability ratings; these matters thus remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). A supplemental statement of the case (SSOC) was issued in July 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to an initial compensable disability rating, prior to November 7, 2019, for right lower extremity Achilles tendonitis. 2. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity Achilles tendonitis from November 7, 2019. 3. Entitlement to an initial compensable disability rating, prior to November 7, 2019, for left lower extremity Achilles tendonitis. 4. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity Achilles tendonitis from November 7, 2019. The Veteran contends that he is entitled to initial compensable disability ratings, prior to November 7, 2019, and in excess of 10 percent thereafter, for his service-connected right ankle and left ankle disabilities as his symptoms more nearly approximate the criteria for higher ratings. Prior to November 7, 2019, the Veteran's bilateral ankle disabilities were currently rated as noncompensable (zero percent) under Diagnostic Code 5271. From November 7, 2019, the Veteran's bilateral ankle disabilities are currently rated as 10 percent disabling under Diagnostic Code 5271 Under Diagnostic Code 5271, a 10 percent rating is warranted where evidence shows a moderate limitation of motion, and a 20 percent rating is warranted where evidence shows a marked limitation of motion. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021 and both the old and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5271 was changed only to define specific range of motion measurements for 'moderate' and 'marked' limitation of motion of the ankle. Under the revised criteria (in effect from February 7, 2021), marked limitation of motion of ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) warrants a 20 percent rating; and moderate limitation of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) warrants a 10 percent rating. Under the rating criteria in effect prior to February 7, 2021, the terms "moderate" and "marked" as used under Diagnostic Code 5271 are not defined in the Rating Schedule. Nevertheless, the Board must evaluate all of the evidence to ensure an "equitable and just" decision. 38 C.F.R. § 4.6. To that extent, the Board notes that the normal range of motion for the ankle is as follows: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. In this matter, the Veteran underwent a VA examination for his ankles in January 2011. The examination report measured the range of motion for the Veteran's ankles as within normal limits. Both ankles were notes as normal on x-ray findings. The examiner stated that there was no ankylosis of either the right or left ankle. No ankle instability or dislocation was found on testing. Additionally, the examination report noted the Veteran's right and left ankles causing a functional impairment manifested by limitations in prolonged walking and standing. The Veteran was provided another VA examination on November 7, 2019. The examination report measured the range of motion for the Veteran's ankles, bilaterally as 45 degrees of plantar flexion and 15 degrees of dorsiflexion. No objective pain or localized tenderness was noted on range of motion testing bilaterally. The November 2019 VA examiner reported that the Veteran's bilateral ankle disabilities do impact his ability to work. Specifically, he has lost 0-1 week of work during the last 12 months. The Veteran has difficulty with prolonged standing and walking. The Board finds that compensable ratings prior to November 7, 2019 are not wanted, as the medical evidence does not support a finding that the Veteran's right and left ankle disabilities manifested to moderate limitation in motion. Rather, the January 2011 examination reflect the Veteran's range of motion to be within normal limits. Moreover, there is no evidence of record, including examination or treatment records, dated prior to November 7, 2019, which indicates that moderate limitation of motion is warranted. Further, the Board finds that the weight of the evidence is against the finding that manifestations of the Veteran's right ankle or left ankle disability more nearly approximate marked limitation of motion. The Board notes that, while the Veteran's bilateral ankles are noted with limitation in range of motion, the limitation in not of such severity to warrant a disability rating in excess of 10 percent. Indeed, the medical evidence indicates he maintains only slightly decreased dorsiflexion and normal plantar flexion of the right and left ankles. While he is noted to have pain for both ankles, to include with prolonged standing and walking, such as been characterized as variable and not of such a severity to more closely approximate marked limitation of motion. Moreover, there is no evidence of instability of the joint or muscle impairment. In conclusion, while the Veteran's contentions have been respectfully considered, higher evaluations are not warranted based on the evidence of record. As discussed, the weight of the evidence is against the Veteran's claims for higher initial disability ratings for both the right ankle and left ankle disabilities. Accordingly, the reasonable doubt doctrine is not for application and the claims must be denied. 5. Entitlement to an initial compensable disability rating for gastritis. The Veteran seeks an initial compensable disability rating for gastritis. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA s Schedule for Rating Disabilities (Rating Schedule) which is based on average impairment in earning capacity 38USC § 1155,38 CF R Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating 38 C F R§ 4.7 After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran 38 C F R § 4 3 The Veteran s entire history is reviewed when making disability evaluations See generally 38 C F R 4.1 ; Schafrath v Derwinski, 1 Vet. App. 589 (1995). Whereas, in the present case entitlement to compensation has already been established and an increase in disability rating is at issue the present level of disability is of primary concern. See Francisco v Brown, 7 Vet. App. 55 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time based on the facts). See Hart v Mansfield, 21 Vet. App. 505 (2007), see also Fenderson v West, 12 Vet. App. 119 (1999). Under Diagnostic Code 7307 if gastritis is chronic with severe hemorrhages or large ulcerated or eroded areas, the rating is 60 percent. If it is chronic with multiple small eroded or ulcerated areas, and symptoms, the rating is 30 percent. Chronic gastritis with small nodular lesions and symptoms warrants a 10 percent rating. If it is atrophic gastritis (a complication of a number of diseases including pernicious anemia) it is to be rated on the underlying condition 38 C F R § 4.114, Diagnostic Code 7307. Pursuant to Diagnostic Code 7346, relating to hiatal hernia, a 10 percent disability rating is warranted with two or more of the symptoms for a 30 percent disability rating with less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or a or shoulder pain productive of considerable impairment of health. A maximum schedular 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. 38 C F R § 4 114, Diagnostic Code 7346. When an unlisted disease, injury or residual is encountered, requiring rating by analogy the diagnostic code number will be 'built-up" as follows: The first two digits will be selected from that part of the schedule most closely identifying the part or system of the body involved, and the last two digits will be "99" for all unlisted conditions. 38 C F R §§ 4 20, 4.27. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code.38 C F R § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identifies the criteria used to evaluate that disability. Throughout the appeal period, the Veteran's gastritis has been evaluated as 10 percent disabling pursuant to Diagnostic Code 7399-7307. Turning to the evidence of record, the Veteran was provided a VA examination in February 2011. The VA examiner noted no signs of malaise. The examination further noted the Veteran's gastritis does not cause him anemia. The examination report does not reflect findings of nodular lesions; eroded or ulcerated areas; or severe hemorrhages. The Veteran was provided another VA examination in November 2019. The Veteran reported continuous abdominal pain. There was no evidence of anemia, nausea, hematemesis, or vomiting. The examination report does not reflect findings of nodular lesions; eroded or ulcerated areas; or severe hemorrhages. Under Diagnostic Code 7307, applicable to hypertrophic gastritis, compensable ratings require nodular lesions; eroded or ulcerated areas; or severe hemorrhages. The medical examinations do not reflect the Veteran with either. As such, the Veteran's disability picture does not more nearly approximate the criteria for a compensable rating. The Board finds that the preponderance of the evidence indicates that a compensable rating is not warranted at any time during the appeals process as the evidence of record does not show findings of nodular lesions; eroded or ulcerated areas; or severe hemorrhages. In summary, while the Veteran has complained of varied symptoms, objectively he has not been shown to be of such severity as to result in a compensable rating. 6. Entitlement to a TDIU. The Veteran contends that he is unable to obtain or maintain employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16 (a). For a veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361(1993). A review of the claims records and medical examination reports does not reflect that the veteran's service-connected disabilities are of such severity to prevent him from employment. In a July 2013 VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, the Veteran reported that he last worked full time in July 2011 and that from November 2010 to July 2013 he lost 24 months of work due to illness. A September 2013 VA examination report notes the Veteran turning down a job offer in July 2012 as an environmental engineer. The examination report further noted the Veteran employed with the Department of Homeland Security as of at least July 2013. As noted above, a total rating for compensation purposes may be assigned where the schedular rating is less than total, when, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more. Here, the Veteran's current service-connected disabilities combined rating is 80 percent. Thus, the Veteran does meet the schedular requirements. However, the evidence reflects that while the Veteran's service-connected disabilities may cause some impairment to his ability to work, they do not preclude it. This is evident as the claims folder reflects that the Veteran is currently employed full time. Moreover, the clinical evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities. While the Board acknowledges the functional impairment resulting from his service-connected disabilities, the evidence does not demonstrate that said service-connected disabilities resulted in the Veteran's inability to secure and follow gainful employment. While the evidence reflects that the Veteran's service-connected disabilities limited some tasks and, at times, limited him to employment that does not require prolonged standing or walking, it did not reflect that he was unemployable. The evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Critically, for the above reasons, the evidence of record does not support a conclusion that the Veteran's service-connected disabilities alone made him unemployable; thus, there is no basis for TDIU. Id. at 1354 ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In short, the Board does not find that the service-connected disabilities alone rendered the Veteran unable to secure or follow a substantially gainful occupation during the periods herein under consideration. The preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment during due to his service-connected disabilities; as indicated above, the evidence of record reflects that the Veteran is currently employed. The preponderance of the evidence is against the Veteran's contention that his service-connected disabilities are of such severity as to preclude his participation in substantially gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right hand condition is remanded. 2. Entitlement to service connection for a left hand condition is remanded. As previous noted, the above issues were remanded in November 2018 for further development. Specifically, the Board remanded the issues for a VA examination and opinion. The Veteran was afforded a VA examination regarding his claimed conditions in November 2019. The examiner opined that the Veteran's bilateral hand condition is less likely than not to have been incurred while in service, and/or cause by or aggravated by any service-connected disability. The examiner's opinion was based, in part, due to a lack of in-service medical treatment. In explaining the medical opinion provided, the examiner simply noted the lack of in-service treatment and the date the Veteran was finally formally diagnosed with a hand condition. An examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (finding VA's examiner's opinion flawed because it relied solely on the absence of contemporaneous medical evidence). Thus, the Board finds that the November 2019 examination report is inadequate. As such, remand for a new VA medical opinion to address the etiology of the claimed right and left hand disabilities is required. The matters are REMANDED for the following action: Obtain supplemental opinions from an appropriate clinician regarding entitlement to service connection for a right and left hand disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right and/or left hand condition began in service, was caused by service, or is otherwise related to service. In addressing the above, the examiner must consider all pertinent in- and post-service evidence, including the Veteran's lay assertions that he suffered from said disabilities during his active duty service that has continued to the present day. In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. Detailed rationale should be provided for all opinions rendered. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.