Citation Nr: 0808584 Decision Date: 03/14/08 Archive Date: 03/20/08 DOCKET NO. 04-31 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disc disease. 2. Entitlement to a compensable rating for residuals of a fracture, left 3rd metatarsal. 3. Entitlement to a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal. 4. Entitlement to a compensable initial rating for a disability manifested by chronic testicular and groin pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from November 1991 until November 1995. These matters come before the Board of Veterans' Appeals (BVA or Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Hartford, Connecticut. The veteran had also perfected an appeal with respect to a claim of entitlement an increased rating for asthma. However, he withdrew that claim in a December 2004 communication. He later reopened the claim, but did not perfect an appeal and as such the Board does not have jurisdiction over that issue. Correspondence from the veteran dated in September 2007 appears to raise a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Additionally, a December 2007 communication raises claims of entitlement to an earlier effective date with respect to grants of service connection for hypertension and for a back disability and entitlement to an increased rating for service-connected eczema. Such claims have not yet been adjudicated by the RO, and are therefore referred back for appropriate action. FINDINGS OF FACT 1. Prior to September 23, 2002, the veteran's low back disability was productive of complaints of pain; objectively, the evidence reveals no more than moderate limitation of motion, without positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, and with no more than moderate attacks of intervertebral disc syndrome. 2. From September 23, 2002, the orthopedic manifestations of the veteran's low back disability have been productive of complaints of pain; objectively, the evidence reveals no more than moderate limitation of motion, without vertebral fracture or ankylosis. 3. From September 23, 2002, the competent evidence shows neurologic manifestations of the veteran's low back disability that are no more than mild in degree. 4. Throughout the rating period on appeal, the veteran's residuals of a fracture, left 3rd metatarsal have been shown to be less than moderate in degree. 5. Throughout the rating period on appeal, the veteran's residuals of a fracture, right 3rd metatarsal have been shown to be no more than moderate in degree. 6. Throughout the rating period on appeal, the veteran's chronic testicular and groin pain has not been manifested by any voiding dysfunction and has not caused urinary tract infections. CONCLUSIONS OF LAW 1. Prior to September 23, 2002, the criteria for entitlement to an initial evaluation in excess of 20 percent for a back disability involving lumbar strain and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (as in effect prior to September 23, 2002). 2. From September 23, 2002, the criteria for entitlement to an initial evaluation in excess of 20 percent for the orthopedic manifestations of a back disability involving lumbar strain and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, DCs 5292, 5295 (as in effect prior to September 23, 2002); 38 C.F.R. § 4.71a, DC 5293 (as in effect from September 23, 2002, until September 26, 2003). 3. From September 23, 2002, the criteria for entitlement to a separate 10 percent evaluation for the neurologic manifestations of a back disability involving lumbar strain and degenerative disc disease have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.124a, DCs 8520, 8521, 8524, 8525, and 8526 (2007). 4. The criteria for entitlement to a compensable evaluation for residuals of a fracture, left 3rd metatarsal have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, DC 5284 (2007). 5. The criteria for entitlement to a rating in excess of 10 percent for residuals of a fracture, left 3rd metatarsal have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.71a, DC 5284 (2007). 6. The criteria for entitlement to a compensable initial rating for chronic testicular and groin pain have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.459, 4.115b, DC 7527 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is claiming entitlement to increased ratings for a back disability, residuals of fractures to the right and left 3rd metatarsals, and chronic testicular/groin pain. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1. In addition, 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). At the outset, the Board notes that the veteran's back and testicular claims are appeals from the initial rating assignments for those disabilities. As such, those claims require consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's foot claims do not stem from initial rating assignments. In such cases, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). I. Back Disability It is observed that the schedular criteria for evaluating disabilities of the spine have undergone revision twice during the pendency of this appeal. The first amendment, affecting DC 5293, was effective September 23, 2002. The next amendment affected general diseases of the spine and became effective September 26, 2003. Throughout the rating period on appeal, the veteran's service-connected back disability has been rated as 20 percent disabling. He was initially rated pursuant to DC 5295. Prior to September 23, 2002, DC 5295, for lumbosacral strain, provided a 20 percent rating where there is evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was assigned for severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. In considering the above criteria, a private treatment record in February 2000 showed that the veteran was taking muscle relaxants to avoid back spasms. Additionally, a VA examination dated in October 2000 revealed spasm of the bilateral lower paraspinals. However, there was no tenderness or spasm of the sacroiliac joints, no back atrophy and no spinal deformities noted. Other evidence of record during the period in question fails to reveal a listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, or other criteria associated with the next-higher 40 percent rating under DC 5295. In fact, a September 1998 private treatment record noted that the veteran could bend without difficulty, and that he could toe and heel walk. While acknowledging the findings of muscle spasm, as detailed above, the overall evidence does not reveal a disability picture that is most nearly approximated by the next-higher 40 percent evaluation under the pre-amended version of DC 5295. Moreover, in reaching this conclusion, the Board has appropriately considered additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this vein, the veteran's consistent complaints of low back pain are noted. Further, the October 2000 VA examination report indicated that he had limited spine mobility. Nevertheless, as the evidence does not show any listing of the spine or marked limitation of forward bending, the functional limitations resulting from his back disability are not found to be comparable to the 40 percent rating under DC 5295. The Board has also considered whether any alternate diagnostic codes could serve as a basis for increased rating during the period in question. In this regard, the Board calls attention to DC 5292, concerning limitation of motion of the lumbar spine. That code section provides a 20 percent evaluation where the evidence demonstrates moderate limitation of motion. A 40 percent rating is for application where there is severe limitation of lumbar spine motion. In the present case, VA examination in October 2000 shows that the veteran had lumbar flexion to 60 degrees, and extension to 20 degrees. He had right lateral flexion to 20 degrees and left lateral flexion to 25 degrees. Further range of motion was prevented due to pain in all cases. A review of 38 C.F.R. § 4.71a, Plate V (2007) indicates that normal flexion of the spine is to 90 degrees. Normal extension is to 30 degrees, and normal lateral flexion is also to 30 degrees. In comparing the veteran's October 2000 VA examination results to the normal ranges of motion provided at Plate V, the Board concludes that his limitation of motion is moderate in degree. Moreover, while the evidence reveals numerous complaints of pain, the objective findings do not demonstrate that such pain has caused a limitation of function comparable to severe disability. Indeed, even with pain, the veteran could flex his spine to 60 degrees and had 20 degrees of extension. Therefore, even when considering 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), the overall evidence during the period in question reflects a disability picture most nearly approximated by the currently assigned 20 percent rating, for moderate limitation of lumbar motion. The Board has also considered whether the version of DC 5293 in effect prior to September 23, 2002, can afford an increased rating here. Under DC 5293, for intervertebral disc syndrome, as it existed prior to September 23, 2002, a 20 percent evaluation was warranted for intervertebral disc syndrome productive of moderate impairment, with recurring attacks. A 40 percent evaluation was for application in the case of severe impairment with recurring attacks, with intermittent relief. Finally, a 60 percent evaluation was warranted for pronounced impairment, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. In the present case, a private treatment record dated in January 1998 and October 1998 reflect complaints of radiating pain and tingling in the legs. The January 1998 report indicated positive bilateral straight leg raise at 45 degrees from a seated position. The October 1998 report revealed positive bilateral straight leg raise at 90 degrees. The veteran's reflexes were 1/4 in the patella and ankle. Additional complaints of radiating pain are seen in private treatment records dated in December 1999, January 2000 and July 2000. VA examination in October 2000 revealed a positive straight leg raise on the left at 40 degrees. Despite the above findings, the veteran's neurologic symptomatology is found to be no more than moderate in degree. Indeed, a private treatment record dated in September 1998 showed that there was no weakness to manual muscle testing. The October 1998 record noted above indicated that sensory examination was intact. VA examination in October 2000 revealed 5/5 muscle strength of both lower extremities, with a normal right straight leg raise. Reflexes were 2+ bilaterally and patellar and Achilles jerks, and the veteran could ambulate on his toes and heels. There are no other relevant diagnostic codes for consideration here. Indeed, as the medical evidence does not establish ankylosis, DCs 5286 and 5289 are not for application. Based on the foregoing, the Board concludes that the veteran's neurologic symptomatology is no more than moderate in degree throughout the period in question. Thus, there is no basis for assignment of the next-higher 40 percent evaluation under the provisions of DC 5293, as in effect prior to September 23, 2002. In conclusion, then, based on all of the foregoing, the evidence does not support a rating in excess of 20 percent for the veteran's degenerative disc/joint disease with lumbar spinal stenosis, prior to September 23, 2002. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Effective September 23, 2002, the diagnostic criteria for intervertebral disc syndrome under DC 5293 underwent revision. As revised, prior to September 26, 2003, DC 5293 provides that intervertebral disc syndrome is to be evaluated either based on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under DC 5293, as in effect from September 23, 2002, and through September 25, 2003, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent disability rating is warranted where the evidence reveals incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to the amended version of DC 5293 defines an "incapacitating episode" as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so." The evidence does not establish incapacitating episodes, as defined by Note 1 to DC 5293, having a total duration of at least 6 weeks during a previous 12-month period. Bed rest was prescribed by a VA physician in June 2003, but it was not shown that such rest exceeded 6 weeks duration. As such, the amended version of DC 5293, as in effect from September 23, 2002 through September 25, 2003, cannot serve as a basis for an increased rating on the basis of incapacitating episodes. Under the amended version of DC 5293, as in effect from September 23, 2002, through September 25, 2003, the Board must also consider whether separate evaluations for chronic orthopedic and neurologic manifestations of the service- connected back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all other disabilities, results in a higher combined disability rating. The Board will first analyze the chronic orthopedic manifestations of the veteran's lumbar spine disability. As noted above, one relevant diagnostic code for consideration in this regard is DC 5292, concerning limitation of motion of the lumbar spine. In the present case, the evidence between September 23, 2002, and September 26, 2003, do not contain specific range of motion findings for the lumbar spine. However, 38 C.F.R. § 4.1 provides that, in evaluating a disability, such disability is to be viewed in relation to its whole recorded history. Therefore, the Board will evaluate the veteran's low back disability based on the evidence leading up to September 2002. Such evidence, as already discussed, revealed lumbar flexion to 60 degrees, and extension to 20 degrees. (See VA examination report of October 2000.) The evidence also showed complaints and findings of pain, but additional functional limitation has not been empirically demonstrated. Overall, for the reasons discussed previously, a 20 percent evaluation for moderate limitation of is warranted during the period in question. The evidence does not support an evaluation in excess of this amount for any time between September 23, 2002, and September 26, 2003. Indeed, as the medical evidence does not establish ankylosis, DCs 5286 and 5289 are not for application. The only other potentially applicable diagnostic code with respect to the orthopedic manifestations of the veteran's service-connected degenerative disc disease of the lumbar spine is DC 5295, for lumbosacral strain. However, the criteria for a rating in excess of 20 percent have not been satisfied, as discussed above. The Board will now determine an appropriate rating for the veteran's neurological manifestations of his service- connected low back disability. In the present case, the veteran's neurological complaints relate to the lower extremities. Thus, DCs 8522-8530 are potentially applicable. A VA peripheral nerves examination dated in December 2002 reveals complaints of difficulty raising either leg beyond 20 degrees. However, the VA examiner did not believe that such difficulty was due to radicular pain. Muscle bulk, tone, and strength were all intact in the lower extremities, with no spasticity noted. Reflexes were physiologic, including both ankle jerks. Plantar responses were flexor bilaterally. Based on the above findings, and considering the history of neurologic symptomatology as previously described, the Board finds that the evidence demonstrates mild neurologic manifestations of the veteran's service-connected low back disability. As the medical evidence does not specifically state which nerves were affected by the veteran's low back disability, the Board will simply apply the diagnostic code affording the highest possible rating evaluation for "mild" neurological symptoms. In this manner, the Board satisfies its obligation to resolve all reasonable doubt in favor of the veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, a 10 percent rating for mild disability is afforded under DCs 8520, 8521, 8524, 8525, and 8526. All remaining potentially relevant Code sections provide only noncompensable evaluations. Thus, the veteran is entitled to a 10 percent rating under DCs 8520, 8521, 8524, 8525 or 8526 for the neurologic manifestations of the disability at issue. In sum, as instructed by the revised version of DC 5293, as in effect from September 23, 2002 through September 25, 2003, the Board has considered the chronic orthopedic and neurologic manifestations of the veteran's low back disability. It has been determined that the veteran is entitled to a 20 percent rating under DC 5292 for his orthopedic manifestations, and that he is entitled to a 10 percent evaluation under DCs 8520, 8521, 8524, 8525 or 8526 for the neurologic manifestations. Those separate orthopedic manifestation and neurologic manifestation ratings must now be combined under 38 C.F.R. § 4.25, along with all other service-connected disabilities. The veteran's has one other service-connected disability for which he is assigned a compensable evaluation, namely, residuals of a fracture, 3rd right metatarsal (10 percent disabling). Applying the Combined Ratings Table of 38 C.F.R. § 4.25 to the veteran's ratings as set forth above, an evaluation of 40 percent is derived. These combined ratings exceed the combined 30 percent evaluation rating currently in effect. Thus, the revised version of DC 5293, as in effect from September 23, 2002 through September 25, 2003, entitles the veteran to an increased combined service-connected disability evaluation if he is rated separately for the orthopedic and neurologic manifestations of the disability at issue. As such, the evidence supports the grant of a separate 20 percent rating for the orthopedic manifestations of the disability at issue, and a separate 10 percent rating for the neurologic manifestations of the disability at issue, for the period from September 23, 2002, through September 25, 2003. As discussed above, there is no basis for separate evaluations in excess of those amounts. Finally, the diagnostic criteria pertinent to spinal disabilities in general were revised effective September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, DCs 5237, 5238, 5243 (2007). Under these relevant provisions, lumbosacral strain or spinal stenosis warrant a 20 percent evaluation where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5237 (lumbosacral strain); DC 5238 (spinal stenosis); and DC 5243 (intervertebral disc syndrome). In addition to evaluating intervertebral disc syndrome (DC 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for intervertebral disc syndrome based on incapacitating episodes remain the same as those effective September 23, 2002, as outlined above. As discussed above, the preponderance of the competent clinical evidence of record is against an increased evaluation for the disability at issue based on incapacitating episodes of intervertebral disc syndrome. In so finding, the Board acknowledges an October 2006 VA outpatient treatment report indicating that the veteran had been bedridden for a week due to back pain. However, there was no indication that such bedrest had been prescribed. Similarly, the competent clinical evidence of record is against an evaluation in excess of 20 percent for the disability at issue based on the general rating formula for disease or injury of the spine, effective September 26, 2003, for DCs 5237, 5238, and 5243. Indeed, a finding of forward flexion of the thoracolumbar spine 30 degrees or less, or ankylosis of the lumbar spine, is required in order for the veteran to qualify for an evaluation in excess of 20 percent. Here, VA examination in September 2004 indicated forward flexion of the lumbar spine to 80 degrees. The veteran had extension to 20 degrees, side bending to 45 degrees to the left and right, and rotation to 30 degrees to the left and right. Discomfort was noted at the end points of rotation. However, his gait showed no limp and he walked without the use of any assistive devices. The Board acknowledges the complaints and findings of low back pain. For example, a March 2006 VA outpatient record revealed reports of severe exacerbations of lumbar pain occurring several times per year. Additional medical records dated in 2006 and 2007 again reflect complaints of low back pain. Moreover, the veteran has reported his low back symptoms in various testimonial documents. Additionally, at a December 2004 personal hearing before the RO, he stated that he was basically in pain all of the time. He had problems tying his shoes and washing himself, and it caused an exacerbation when he tried to lift things. Furthermore, lay statements, including from the veteran's significant other, detail the impact of the veteran's back problems on his daily and occupational life. An employer wrote a letter in March 2007 explaining that he observed the veteran standing up at meetings due to his low back pain. Despite the evidence of low back pain, the objective findings simply do not demonstrate that such pain has caused functional limitation such that the veteran's disability picture is more nearly approximated by the next-higher 40 percent evaluation under the general rating formula for diseases and injuries of the spine. Rather, for the reasons already discussed, the veteran's disability picture is shown to more closely mirror the criteria for a 20 percent rating, as currently assigned. Under Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the veteran continues to be entitled to a separate 10 percent rating for the neurologic manifestaions of his low back disability. There is no basis for an evaluation in excess of that amount. Indeed, VA peripheral nerves examination in February 2005 indicated good muscle bulk, tone, and strength in the lower extremities. Reflexes were both physiologic, including both ankle jerks which were 2+. There were no sensory abnormalities. A March 2006 VA record reveals positive straight leg raise bilaterally at 45 degrees. An October 2006 private medical record reveals neuropathy manifested by a dull ache down the anterior legs to the knees. However, these symptoms are found to be contemplated by the 10 percent evaluation currently in effect. As discussed above, the medical evidence allows for a finding of no more than mild neurologic manifestations of the veteran's service-connected degenerative disc/joint disease with lumbar stenosis. Thus, the veteran remains entitled to a 10 percent rating under DCs 8520, 8521, 8524, 8525, or 8526 for the neurologic manifestations of the disability at issue. In sum, prior to September 23, 2002, there is no basis for a rating in excess of 20 percent for the veteran's low back disability. From September 23, 2002, a separate 10 percent rating is warranted for neurologic manifestations. No higher evaluations are justified. The Board notes that in reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Residuals of a Fracture, Left 3rd Metatarsal Throughout the rating period on appeal, the veteran's residuals of a fracture, left 3rd metatarsal has been evaluated as noncompensable pursuant to DC 5284. To achieve a 10 percent rating, the competent evidence must show moderate foot injury. The evidence of record includes complaints of foot pain, as shown in VA and private clinical records from 1996 to 2000. The records from 1996 refer specifically to right foot complaints, however, and thus are not relevant to the instant discussion. A December 1997 VA outpatient treatment report indicated that the veteran had been using orthotics, but that the veteran's feet felt better without them. At that time, he reported right foot pain when wearing shoes. A May 2000 private record showed a diagnosis of tarsal tunnel foot syndrome, bilateral feet. The symptoms included pain, hypersensitivity, and neuralgia. Upon VA examination in September 2001, the veteran complained of cramps in his feet. He stated that his feet tire easily. He hiked about every other week, but his feet felt weak after approximately two miles. He was not using orthotics but had tried steroid treatments, which did not help relieve his symptoms. Objectively, there was no stiffness, swelling, heat, or redness. There was fatigability and lack of endurance. The veteran could walk on his toes and heels without difficulty. He could squat fully. There was some popping of the ankle ligaments. He had left foot dorsiflexion to 15 degrees, plantar flexion to 60 degrees, inversion to 45 degrees, and valgus to 45 degrees. There was no evidence of painful joints, except for tenderness all through the right third tarsal phalangeal joint. There was no limitation of motion, and no evidence of painful motion, edema, instability, or weakness. There was no limitation on standing or walking. Subsequent evidence of record continued to reflect complaints of foot pain. An August 2002 VA clinical record noted bilateral painful pes cavus deformity. He stated that most of his pain was at the top of both feet. Additionally, he stated that both his ankle and feet felt weak at times. Additional complaints and treatment are seen in October 2002. Despite the complaints of pain, the evidence of record does not show additional functional limitation such as to conclude that the veteran's disability picture is comparable to a 10 percent rating for moderate disability. Indeed, the objective evidence reveals full range of motion, and the September 2001 VA examination showed no evidence of painful motion, instability, or weakness. Based on the above, there is no support for assignment of a compensable rating under DC 5284 for the veteran's service- connected left foot disability. The Board has also considered whether any alternate diagnostic codes might afford an increased rating here. However, as ankle limitation of motion has not been shown, DC 5271 is not applicable. Similarly, as disability comparable to moderately severe malunion of the tarsal or metatarsal bones has not been demonstrated, an increased rating under DC 5283 is not warranted. There is no showing of flatfoot, precluding evaluation under DC 5276. There are no other relevant code sections for consideration. In conclusion, the objective evidence does not support assignment of the next-higher 10 percent rating for the veteran's residuals of a fracture, left 3rd metatarsal, for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Residuals of a Fracture, Right 3rd Metatarsal Throughout the rating period on appeal, the veteran's residuals of a fracture, right 3rd metatarsal has been evaluated as 10 percent disabling pursuant to DC 5284. Under that code section, a 10 percent rating is warranted for moderate foot injury. To be entitled to the next-higher 20 percent evaluation, the competent evidence must demonstrate moderately severe injury. The evidence of record includes complaints of foot pain, as shown in VA and private clinical records from 1996 to 2000. In a June 1996 VA record, the veteran stated that he had right foot pain when putting on or removing socks and shoes. A November 1996 report indicated intermittent right foot pain. Range of motion was pain-free and unlimited. A December 1997 VA outpatient treatment report indicated that the veteran had been using orthotics, but that the veteran's feet felt better without them. At that time, he reported right foot pain when wearing shoes. Upon VA examination in September 2001, the veteran complained of cramps in his feet. He stated that his feet tire easily. The veteran hiked about every other week, but his feet felt weak after approximately two miles. He was not using orthotics but had tried steroid treatments, which did not help relieve his symptoms. Objectively, there was no stiffness, swelling, heat, or redness. There was fatigability and lack of endurance. The veteran could walk on his toes and heels without difficulty. He could squat fully. There was some popping of the ankle ligaments. He had right foot dorsiflexion to 15 degrees, plantar flexion to 60 degrees, inversion to 45 degrees, and valgus to 45 degrees. There was right foot tenderness over the tarsal phalangeal joint. There was no evidence of painful joints, except for tenderness all through the right third tarsal phalangeal joint. There was no limitation of motion, and no evidence of painful motion, edema, instability, or weakness. There was no limitation on standing or walking. Subsequent evidence of record continued to reflect complaints of foot pain. An August 2002 VA clinical record noted bilateral painful pes cavus deformity. He stated that most of his pain was at the top of both feet. Additionally, he stated that both his ankle and feet felt weak at times. Additional complaints and treatment are seen in October 2002. Despite the complaints of pain, the evidence of record does not show additional functional limitation such as to conclude that the veteran's disability picture is comparable to a 20 percent rating for moderately severe disability. Indeed, the objective evidence reveals full range of motion, and the September 2001 VA examination showed no evidence of painful motion, instability, or weakness. Based on the above, there is no support for assignment of a rating in excess of 10 percent under DC 5284 for the veteran's service-connected right foot disability. The Board has also considered whether any alternate diagnostic codes might afford an increased rating here. However, as ankle limitation of motion has not been shown, DC 5271 is not applicable. Similarly, as disability comparable to moderately severe malunion of the tarsal or metatarsal bones has not been demonstrated, an increased rating under DC 5283 is not warranted. There is no showing of flatfoot, precluding evaluation under DC 5276. There are no other relevant code sections for consideration. In conclusion, the objective evidence does not support assignment of the next-higher 20 percent rating for the veteran's residuals of a fracture, right 3rd metatarsal, for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). IV. Chronic Testicular and Groin Pain Throughout the rating period on appeal, the veteran is assigned a noncompensable evaluation for chronic testicular and groin pain pursuant to DC 7527. DC 7527, concerning prostate gland injuries, infections, hypertrophy and postoperative residuals, instructs the rater to evaluate as voiding dysfunction or urinary tract infection, whichever is predominant. Under the schedular criteria for voiding dysfunction, a 20 percent evaluation is warranted where the evidence demonstrates urinary incontinence that requires the wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a (2007). In the present case, the treatment records reveal complaints of chronic groin pain, exacerbated by sexual activity. However, there is no evidence of any voiding dysfunction. As such, a compensable evaluation is not warranted on this basis. Additionally, the evidence does not demonstrate any symptoms comparable with that of a urinary tract infection, such as recurrent symptomatic infection. Accordingly, the claim can not be compensably rated on that basis. There are no other relevant diagnostic codes for consideration. In conclusion, there is no basis for a compensable evaluation for the veteran's testicular and groin pain for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). With respect to all the claims, the evidence does not reflect that the disabilities at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. For an increased-compensation claim not stemming from an initial rating assignment, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation - e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). With respect to the veteran's back and testicular claims, he is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. With respect to the remaining claims, the duty to notify remains applicable. Here such duty was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the appellant in August 2004 that informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It is unclear from the record whether the veteran was explicitly asked to provide "any evidence in his possession that pertains" to his claims. See 38 C.F.R. § 3.159(b)(1). Nevertheless, as a practical matter the Board finds that he has been notified of the need to provide such evidence, for the following. Specifically, the AOJ letters noted above informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to the AOJ. Under these circumstances, the Board is satisfied that the appellant has been adequately informed of the need to submit relevant evidence in his possession. Again, the Board acknowledges Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) and concedes that the notice letter discussed above did not explicitly inform the veteran to submit evidence demonstrating the effect that his worsening disability has on his employment and daily life. Such letter also did not explain how a disability rating is determined. However, the veteran here is found to have actual knowledge as to both of these points. Indeed, he has submitted much evidence emphasizing the limitations posed by the disabilities at issue. Moreover, some of his correspondence has even included the actual schedular criteria, which certainly demonstrates his awareness of how disability ratings are determined. Therefore, to the extent that notice in this case does not entirely conform with Vazques-Flores, the Board find that the burden of prejudicial error has been overcome due to actual knowledge. Given his demonstrated understanding, and given the fact that the instant appeal has been pending for several years, the Board finds that it would not be beneficial to remand for a new notice letter. Indeed, it appears further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Regarding the timing of notice, although the August 2004 letter was not sent before the initial RO decision in this matter, the Board finds that the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case in April 2005 after the notice was provided. Thus, while the timing of the VCAA notice is presumed to be prejudicial, VA has overcome the burden of prejudicial error by giving the veteran actual notice of what was needed to support his claims. The purpose behind the notice requirement has been satisfied and the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claims for increased ratings as this is the premise of the claims. It is therefore inherent in the claims that the veteran had actual knowledge of the rating element of his claims; however, he was not provided with notice of the type of evidence necessary to establish an effective date for the disabilities on appeal. To the extent that a separate grant of service connection for neurologic manifestations of a low back disability has been granted, the RO will assign the rating and effective date and so notify the veteran. Moreover, regarding the remaining claims, any questions as to the appropriate effective date to be assigned are moot as those claims have been denied. Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103(a), 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the veteran's post-service reports of VA and private treatment and examination. Moreover, his statements in support of his claim are of record, including testimony provided at a December 2004 hearing at the RO. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to his claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Prior to September 23, 2002, an initial rating in excess of 20 percent for a back disability involving lumbar strain and degenerative disc disease is denied. From September 23, 2002, an initial rating in excess of 20 percent for the orthopedic manifestations of a back disability involving lumbar strain and degenerative disc disease is denied. From September 23, 2002, a separate 10 percent rating for the neurologic manifestations of a back disability involving lumbar strain and degenerative disc disease is granted, subject to governing criteria applicable to the payment of monetary benefits. A compensable rating for residuals of a fracture, left 3rd metatarsal is denied. A rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal is denied. A compensable initial rating for a disability manifested by chronic testicular and groin pain is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs