Citation Nr: 1220009	
Decision Date: 06/07/12    Archive Date: 06/20/12

DOCKET NO. 09-03 636	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to service connection for residuals of a mini-stoke including left hand numbness as secondary to service-connected hypertension.

2. Entitlement to an increased disability rating greater than 10 percent for a right knee disability. 

3. Entitlement to an increased disability rating greater than 10 percent for a left knee disability. 

4. Entitlement to an increased disability rating greater than 10 percent for a bilateral pes planus disability.

5. Entitlement to an increased disability rating greater than 0 percent for gout of the right great toe. 

6. Entitlement to an increased disability rating greater than 0 percent for hypertension. 

(The issue of entitlement to vocational rehabilitation benefits under Chapter 31, Title 38, United States Code will be addressed in a separate decision).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active military service in the Air Force from July 1976 to July 1982 and in the Army from October 1989 to August 1994. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In December 2011, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder.

The Board is granting the claims for increased ratings for bilateral pes planus, gout, and hypertension. To comply with due process requirements, the secondary service connection claim for residuals of a mini-stroke, and increased rating claims for bilateral knee disabilities, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The Veteran's bilateral pes planus disability is manifested by severe disability, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The Veteran wears orthotics that provides some relief from the pain.

2. The Veteran's gout of the right great toe is characterized by "exacerbations" or "flare-ups" of gout with pain and swelling anywhere from 4-14 times during the time period from 2005 to 2011. However, there is no probative evidence his flare-ups of gout were "incapacitating" in nature - that is, they did not necessitate prescribed bed rest by a physician. 

3. The Veteran's hypertension is characterized by a history of previous diastolic pressure predominantly 100 or more with the need for continuous medication; however, his hypertension is not currently evidenced by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 


CONCLUSIONS OF LAW

1. The criteria are met for an increased disability rating of 30 percent, but no greater, for bilateral pes planus. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.71a, Diagnostic Code 5276 (2011). 

2. The criteria are met for an increased disability rating of 20 percent, but no greater, for gout of the right great toe. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.27, 4.71a, Diagnostic Code 5017-5002 (2011). 

3. The criteria are met for an increased disability rating of 10 percent, but no greater, for hypertension. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 
& Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).


VA's Duty to Notify and Assist

Review of the claims folder shows compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in July 2007, October 2007, and December 2008. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his increased rating claims; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The July 2007 and October 2007 letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The December 2008 VCAA notice letter also advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. In this regard, the December 2008 letter advised the Veteran of both the generic and specific evidentiary and legal criteria necessary to substantiate a higher rating for his pes planus, gout, and hypertension disabilities. 

As to timing, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In this case it was not. If not timely or inadequate, such errors can be effectively "cured" by providing any necessary VCAA notice and then and readjudicating the claim. That is, a statement of the case (SOC) or supplemental SOC (SSOC) can readjudicate the claim so that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC. Prickett, 20 Vet. App. at 376. 

The timing error was cured. After providing additional VCAA notice in December 2008, the RO readjudicated the increased rating claims in the latter SOC and SSOC. Any timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376; see Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). 

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA inpatient and outpatient treatment records, and private medical evidence as authorized by the Veteran. For his part, the Veteran has submitted personal statements, hearing testimony, private medical evidence, employer leave records, and representative argument. 

The Veteran was also afforded a November 2007 VA medical examination to rate the current severity of his pes planus, gout, and hypertension disabilities. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83; VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). 

The November 2007 is nearly five years old. However, the other evidence of record is sufficient to evaluate the appeal. The Board is granting increased 30, 20, and 10 percent ratings to account for worsening of the pes planus, gout, and hypertension disabilities. In addition, more contemporaneous VA treatment records, lay statements, and hearing testimony dated through 2011 do not demonstrate a material change in the pes planus, gout, and hypertension disabilities beyond the 30, 20, and 10 percent ratings already being granted. Therefore, a new VA examination to rate the severity of his pes planus, gout, and hypertension disabilities is not warranted.

With regard to the December 2011 videoconference hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the December 2011 hearing, the Veterans Law Judge and representative for the Veteran outlined the issues on appeal and engaged in a colloquy as to substantiation of the increased rating claims. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011).


Increased Rating for Pes Planus Greater than 10 Percent

The Veteran's service-connected bilateral pes planus is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5276, acquired flatfoot. He has been in receipt of a 10 percent rating since September 2, 1997. In an increased rating claim received by the RO in January 2006, the Veteran contends that his service-connected bilateral pes planus is more severe than is contemplated by the currently-assigned 10 percent rating. The Board grants the appeal in part and finds that an increased 30 percent disability rating is warranted. 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, 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. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when his pes planus, gout, and hypertension disabilities have been more severe than at others, and rate them accordingly. 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Under Diagnostic Code 5276, a 0 percent rating is warranted where symptoms are mild and relieved by a built-up shoe or arch support. A 10 percent rating is awarded for unilateral or bilateral disability that is moderate, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 30 percent is warranted when there is severe disability, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating requires bilateral pes planus that is pronounced, with 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. See 38 C.F.R. § 4.71a (2011). 

The evidence of record is consistent with an increased 30 percent rating for bilateral pes planus. 38 C.F.R. § 4.7. That is, a 30 percent evaluation is warranted for bilateral pes planus due to medical and lay evidence of severe disability, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. See 38 C.F.R. § 4.71a. 

As to lay evidence, at the hearing, the Veteran testified that he has daily pain the balls of his feet. He wears orthopedic inserts with some relief. He indicates the disability is worsening over time and causes calluses on both feet. See hearing testimony at pages 9-12. 

As to medical evidence, an October 2005 VA emergency room (ER) treatment note documented constant pain at the base of the Veteran's feet for three days. There were no known alleviating factors. Tylenol was not helpful. A hallux valgus deformity was noted, as well as flat feet. An October 2005 addendum assessed "marked" pes planus deformity on X-ray. VA treatment records dated in 2006 noted some bilateral foot swelling. A May 2007 VA podiatry noted pain in the balls of both feet. Pes planus was discussed. Importantly, "severe" pronation was assessed, more so on the left foot. A May 2007 VA ER treatment note documented left foot pain and swelling. A June 2007 VA ER treatment note documented right foot pain. Finally, the November 2007 VA examiner assessed constant bilateral foot pain due to pes planus. Standing, stair climbing, and rapid walking makes the Veteran's pain worse. The examiner remarked that the "arch bilaterally is almost completely obliterated with the patient in the standing position." A December 2009 VA podiatry note assessed a "collapsed" arch bilaterally. New orthotics was ordered for the Veteran. A February 2010 VA treatment recorded bilateral foot and ankle pain with a pes planus diagnosis. Heel cords stretches were recommended. The criteria for a 30 percent rating for bilateral pes planus are therefore met. 

However, the evidence of record does not warrant an increased disability rating beyond 30 percent for bilateral pes planus. 38 C.F.R. § 4.7. The medical and lay evidence of record does not reveal bilateral pes planus that is pronounced, with 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. See 38 C.F.R. § 4.71a. The Veteran's lay statements and testimony as well as VA treatment records and examinations are negative for such evidence. VA has prescribed orthopedic appliances throughout the appeal that provide some relief from pes planus symptoms. 

Several other diagnostic codes for foot disabilities also provide ratings greater than 30 percent. However, there is no evidence or allegation of pes cavus (Diagnostic Code 5278) or a loss of use of either foot under "other foot injury" (Diagnostic Code 5284). Therefore, these diagnostic codes will not be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). 

Accordingly, the Board finds that the evidence supports an increased disability rating of 30 percent, but no higher, for bilateral pes planus. 38 C.F.R. § 4.3. 


Increased Rating for Gout Greater than 0 Percent

The Veteran's service-connected gout of the great right toe is rated as 0 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5017-5002, gout and rheumatoid arthritis. That is, pursuant to Diagnostic Code 5017, gout is to be rated under Diagnostic Code 5002 for rheumatoid arthritis. 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. 38 C.F.R. § 4.27. 

The Veteran has been in receipt of a 0 percent rating for gout since August 2, 1994. In an increased rating claim received by the RO in December 2005, the Veteran contends that his service-connected gout is more severe than is contemplated by the currently-assigned 0 percent rating. The Board grants the appeal in part and finds that an increased 20 percent disability rating for gout is warranted. 

Under Diagnostic Code 5002, a 100 percent rating is warranted for rheumatoid arthritis (atrophic) as an active process with constitutional manifestations associated with active joint involvement, totally incapacitating. When less than the criteria for a 100 percent rating but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times per year or a lesser number over prolonged periods, a 60 percent rating may be assigned. With symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year, a 40 percent rating evaluation may be assigned. One or two exacerbations per year in a well-established diagnosis warrant a 20 percent rating. Alternatively, chronic residuals can be rated based on limitation of motion, with a 10 percent assigned for limited motion which is noncompensable under the appropriate rating codes for the joints. See 38 C.F.R. § 4.71a, Diagnostic Code 5002. 

For chronic residuals of rheumatoid arthritis such as limitation of motion or ankylosis, favorable or unfavorable, the disability is rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and the ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis; rather, the higher evaluation should be assigned. See 38 C.F.R. § 4.71a , Diagnostic Code 5002. 

Limitation of motion of the ankle is rated under Diagnostic Code 5271. Under this code, a 10 percent evaluation is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion for the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II.

The evidence of record is consistent with an increased 20 percent rating for gout of the right great toe. 38 C.F.R. § 4.7. That is, a 20 percent evaluation is warranted for gout of the right great toe due to medical and lay evidence of one or two exacerbations of gout per year in a well-established diagnosis. See 38 C.F.R. § 4.71a. Although the Veteran actually reports more than one or two exacerbations per year of gout, there is no probative evidence these exacerbations are "incapacitating." Thus, the criteria for a 20 percent rating are closest to the Veteran's level of symptomatology under the Rating Schedule.  

As to lay evidence, at the hearing, the Veteran testified that he has "exacerbations" or "flare-ups" or "attacks" of gout with pain and swelling. He reported 14 gout attacks in 2010, and 7 gout attacks in 2011, and 4-7 attacks in 2008. He takes prescription medication daily to control his gout attacks. He says he missed 20 days of work due to gout attacks and pes planus in 2011. The attacks can last up to three weeks in duration. He reported that at times he is able to remain at work by taking off his shoes during gout attacks. He indicates the disability is worsening over time. He says he has visited VA's emergency room during certain gout attacks. See hearing testimony at pages 10-14; December 2005 increased rating claim; July 2006, and December 2008, and November 2010 personal statements; February 2008 Notice of Disagreement (NOD). 
   
As to medical evidence, an October 2005 VA podiatry note indicated there were no recent gout symptoms. A December 2005 VA treatment record documented that his gout was stable at present, and the Veteran was avoiding gout producing foods. A June 2006 VA treatment record recounted gout flare-ups lasting more than two days in the last six months. The Veteran was treated with 100mg of allopurinol daily. There was tenderness to palpation and motion, but no significant erythema or induration. A July 2006 VA ER treatment record identified mild swelling in the right foot due to gout. Indocin was prescribed to treat the condition. A May 2007 VA podiatry note documented a gout attack several months earlier. Limited range of motion of the right foot was noted. The November 2007 VA examiner noted that the Veteran was having fewer gout attacks with shorter duration after being placed on allopurinol. The Veteran reported a gout attack in the right great toe the day before the VA examination, with tenderness but no swelling, redness, drainage, or joint involvement. He reported 10 attacks of gout in 2007 of short duration, alleviated by allopurinol. The examiner observed that dorsiflexion and plantar flexion of the right great toe were not limited in any way. A November 2009 VA treatment record mentions gout flare-ups 7-8 times a year. When a flare-up occurs, the Veteran takes Indocin. Overall, the Veteran's flare-ups of gout are indicative of a greater 20 percent rating. 

However, the evidence of record does not warrant an increased disability rating beyond 20 percent for gout of the right great toe. 38 C.F.R. § 4.7. The medical and lay evidence of record does not reveal gout of the right great toe productive of definite impairment of health objectively supported by examination findings, exacerbations that are "incapacitating" in nature, or weight loss and anemia. See 38 C.F.R. § 4.71a. Absent probative medical or lay evidence for these criteria, a higher rating cannot be granted for gout. 

In making this determination, while Diagnostic Code 5002 does not define what constitutes an "incapacitating exacerbation," the term "incapacitating episode" is defined in the Rating Schedule for the musculoskeletal system, notably in regards to intervertebral disc syndrome. In the explanatory notes for the new criteria for intervertebral disc syndrome, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a. See also Diagnostic Codes 7345 and 7354, Notes (2) ("incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.).

The Board has thoroughly reviewed VA treatment records dated from 2005 to 2010, private medical evidence, the November 2007 VA examination, and the Veteran's lay statements and testimony. Although the Veteran has received treatment and medication due to gout, on various occasions visited the emergency room due to gout, and missed time from work due to gout, at no point in the appeal does the Veteran allege or the medical records document prescribed bed rest by a physician due to gout. Therefore, the evidence is not persuasive in demonstrating that the descriptions of the Veteran's gout flare-ups would equate to an "incapacitating exacerbation." The fact that the Veteran reports experiencing 4 or more exacerbations a year of gout establishes the required frequency, but not the required level of severity for a higher rating. In this regard, an exacerbation or flare-up does not automatically or necessarily comport with a finding that the episode was "incapacitating" in severity. Also, at no point does the evidence show that the Veteran's overall health was definitely impaired due to gout attacks. In addition, there is no evidence or allegation of weight loss or anemia due to gout. 

Accordingly, the Board finds that the evidence supports an increased disability rating of 20 percent, but no higher, for gout of the right great toe. 38 C.F.R. § 4.3. 


Increased Rating for Hypertension Greater than 0 Percent

The Veteran's hypertension is rated as 0 percent disabling under Diagnostic Code 7101, hypertensive vascular disease. See 38 C.F.R. § 4.104. He has been in receipt of a 0 percent rating since September 2, 1997. In an increased rating claim received by the RO in May 2007, the Veteran contends that his service-connected hypertension is more severe than is contemplated by the currently-assigned 0 percent rating. The Board grants the appeal in part and finds that an increased 10 percent disability rating is warranted. 

Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension with diastolic pressure (bottom number) predominantly 100 or more, or systolic pressure (top number) predominantly 160 or more. A 10 percent rating also is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for hypertension with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for hypertension with diastolic pressure predominantly 120 or more. The maximum 60 percent rating is assigned for hypertension with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104 (2011). 

There are three Notes to 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires the evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. 

The evidence of record supports a higher 10 percent rating for hypertension  38 C.F.R. § 4.7. Specifically, the Veteran has a history of previous diastolic pressure predominantly 100 or more and he requires continuous medication to keep his blood pressure down. See 38 C.F.R. § 4.104. 

Specifically, earlier private treatment records document a diagnosis of hypertension with elevated blood pressure readings of 160/100 (see October 2002 private treadmill test), 140/100 (see January 2002 private record), 140/100 (see February 2002 private record) 158/108 (see August 2002 private record), 130/100 (see October 2002 private record), 162/112 (see September 2004 private record). Many of the Veteran's earlier readings confirm elevated diastolic pressure (bottom number) predominantly 100 or more, or systolic pressure (top number) predominantly 160 or more. At the hearing, the Veteran also credibly reported that in 2009 his blood pressure readings were 145/100 for a period of time. His private physician increased the dosage of his blood pressure medication in 2009 as a result. See hearing testimony at pages 17-18. 

More recent VA treatment records dated from 2006 to 2010 often reveal normal blood pressure readings; however, the Veteran's hypertension is controlled by medication. The November 2007 VA examination revealed normal blood pressure readings, with hypertension under control by medication. Private treatment records dated from 2002 to 2005 list the hypertension medications the Veteran is taking - Diovan and Avalide. VA treatment records dated from 2007 to 2010 indicate that the Veteran is taking irbesartan to control hypertension. Without continuous medication, the Veteran's hypertension would clearly be worse. Therefore, the overall disability picture is more commensurate with a higher 10 percent rating under Diagnostic Code 7101 for hypertension, so this is the rating that must be assigned. 

There is no basis, however, for a rating beyond the 10 percent level for hypertension. 38 C.F.R. § 4.7. In this regard, there is neither medical evidence nor even a lay assertion of blood pressure readings with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, which are the criteria necessary to demonstrate a 20 percent rating. VA and private treatment records dated from 2002 to 2010 are unremarkable for blood pressure readings indicative of a 20 percent rating. The Veteran has never alleged elevated blood pressure readings indicative of a 20 percent rating. 

Accordingly, the Board finds that the evidence supports an increased disability rating of 10 percent, but no higher, for hypertension. 38 C.F.R. § 4.3. 


Francisco Consideration

Based upon the law of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms for his pes planus, gout, and hypertension disabilities, have remained fairly constant at 30, 20, and 10 percent levels respectively, staged ratings are not warranted. 


Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). Since the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence fails to show anything unique or unusual about the Veteran's pes planus, gout, and hypertension disabilities that would render the schedular criteria inadequate. There are no additional symptoms of his pes planus, gout, and hypertension disabilities that are not addressed by the Rating Schedule. Moreover, to the extent that the Veteran's pes planus, gout, and hypertension disabilities interfere with his employability, as reported by the Veteran, such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 


ORDER

An increased 30 percent disability rating for a bilateral pes planus disability is granted, subject to the laws and regulations governing the payment of VA compensation. 

An increased 20 percent disability rating for gout of the right great toe is granted, subject to the laws and regulations governing the payment of VA compensation. 

An increased 10 percent disability rating for hypertension is granted, subject to the laws and regulations governing the payment of VA compensation. 


REMAND

To ensure compliance with due process requirements, the Board presently remands the following issues: secondary service connection for residuals of a mini-stroke, an increased rating for a right knee disability, and an increased rating for a left knee disability.   

The current Veterans Claims Assistance Act (VCAA) letters of record failed to inform the Veteran of the evidence necessary to substantiate his claim for SECONDARY SERVICE CONNECTION for residuals of a mini-stoke including left hand numbness on the premise that this disorder is proximately due to or chronically aggravated by his service-connected hypertension. 38 C.F.R. § 3.310 (2011). During the course of the appeal, the Veteran reported that he sustained a "mini-stroke" in 2005, which doctors informed him was caused by his service-connected hypertension. See February 2008 NOD; July 2007 Veteran's statement; hearing testimony at pages 20-23. Therefore, a remand is required for the RO/AMC to issue another VCAA letter that addresses SECONDARY SERVICE CONNECTION for residuals of a mini-stoke including left hand numbness. 

Also, complete VA treatment records dated from February 2010 to the present must be associated with the claims file. The Veteran indicated that he received VA physical therapy for his knees in 2011. See hearing testimony at page 7. If they exist, these particular VA records are not present in the claims file. However, VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). As part of its duty to assist, VA must also secure any additional, relevant private treatment records the Veteran adequately identifies. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1).

The Veteran must be scheduled for a VA examination and opinion to determine the whether any current residuals of a mini-stroke (including left hand numbness) were secondarily caused or aggravated by the service-connected hypertension. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). 

Finally, the Veteran must be scheduled for a VA examination to rate the current extent and severity of his service-connected right and left knee disabilities. His last VA examination for his bilateral knee disabilities was in November 2007, over four years ago. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2011). See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In the present case, the Veteran asserts that his bilateral knee disabilities have worsened. See e.g., hearing testimony at page 4. Therefore, the RO/AMC must afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his bilateral knee disabilities.

Accordingly, these issues are REMANDED for the following action:

1. The RO/AMC must send the Veteran a VCAA letter notifying him and his representative of the evidence necessary to substantiate the claim for SECONDARY SERVICE CONNECTION for residuals of a mini-stoke including left hand numbness on the premise that they are proximately due to, or chronically aggravated by, his service-connected hypertension. See 38 C.F.R. § 3.310 (2011). Specifically, the letter should (1) inform him of the information and evidence that is necessary to substantiate his residuals of a mini-stoke claim on a secondary basis; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. 3.159(b).

2. Request the Veteran to identify all records of VA and non-VA health care providers who have treated his alleged residuals of a mini-stroke and his service- connected bilateral knee disabilities. 

(a) After obtaining any appropriate authorizations for release of any private medical information, the RO/AMC must seek to obtain records from each private health care provider the Veteran identifies.

(b) In addition, all relevant VA treatment records dated from February 2010 to the present from the VA Medical Center (VAMC) in Denver, Colorado must be secured. These records include alleged VA physical therapy records for the knees dated in 2011. 

(c) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC.

3. After completion of the above development, the RO/AMC must schedule a VA examination with an appropriate clinician for the Veteran's alleged residuals of a mini-stroke (including left hand numbness). The purpose of this examination is to determine whether any current residuals of a mini-stroke (including left hand numbness) are secondarily caused by or aggravated by his service-connected hypertension disability.

The following considerations will govern the examinations:

(a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand.

(b) If deemed appropriate by the examiner, the Veteran may be scheduled for further examinations. All indicated tests and studies must be performed. 

(c) The examiners must take a full history from the Veteran. IF DEEMED APPROPRIATE BY THE EXAMINER(S), THE EXAMINER SHOULD STATE WHETHER THERE IS A CLINICAL BASIS OR BASES (I.E., NON-SUBJECTIVE REPORT) TO SUPPORT OR DOUBT THE Veteran's CONTENTIONS, WITH A FULLY REASONED EXPLANATION FOR ANY SUCH FINDING. 

(d) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is requested to provide a rationale for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 

(e) The examiner must provide a medical opinion answering the following questions:

(i) Upon clinical examination, does the Veteran have current residuals of a mini-stroke, including left hand numbness?  The Veteran states that he had a mini-stroke in 2005. An earlier November 2007 VA examiner did not find any objective or subjective evidence of this alleged disorder. 

(ii) If current residuals of a mini-stroke, including left hand numbness, are diagnosed, are any residuals proximately due to or the result of the Veteran's hypertension?

(iii) If current residuals of a mini-stroke, including left hand numbness, are diagnosed, are any residuals chronically aggravated or worsened by the Veteran's hypertension, regardless of the date of onset of either disorder?  If and only if the examiner believes that there is chronic aggravation or worsening of any current mini-stroke residuals, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation. If the degree of increased disability cannot be quantified, the examiner should so indicate.

4. After completion of the above development, the RO/AMC must schedule the Veteran for a VA examination by an appropriate clinician to determine the severity of the service-connected right and left knee disabilities. The purpose of this examination is to determine the current nature and extent of his right and left knee disabilities, their effect on his occupational and social functioning, and their impact on his daily activities. The examination must include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claims. THE CLAIMS FOLDER MUST BE MADE AVAILABLE FOR REVIEW FOR THE EXAMINATION AND THE EXAMINATION REPORT MUST STATE WHETHER SUCH REVIEW WAS ACCOMPLISHED. 

The following considerations will govern the examination:

(a) For the right and left knee, the examiner must provide a diagnosis for each disease or injury of the right and left knee noted on examination.

(b) For the right and left knee, the examiner must report the complete range of motion findings for the right and left knee disabilities. In providing this objective information, the examiner must indicate whether there is additional range of motion loss attributable to functional loss due to any of the following: pain on use, flare-ups; weakened movement; excess fatigability; incoordination; and repetitive use. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. 

(c) For the right and left knee, the examiner must also indicate the presence or absence of any lateral instability and/or recurrent subluxation in the right and left knee. If instability is present, the examiner must specifically state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should state as such. In making this determination, the examiner must specify what tests, if any, he performed or what observations he assessed for instability, such as varus deformity, valgus deformity, Lachman's test, McMurray's test, or anterior and posterior drawer tests.

(d) For the right and left knee, the examiner must indicate the effect of the service-connected right and left knee disabilities on the Veteran's occupational and social functioning and his ordinary activities of daily life. 

(e) The examiner is requested to provide a rationale for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.

5. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

6. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the secondary service connection claim for residuals of a mini-stroke and the increased rating claims for right and left knee disabilities. If the benefit sought is not granted, issue a SSOC and allow the Appellant an opportunity to respond. 

Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs