Citation Nr: 1120318	
Decision Date: 05/25/11    Archive Date: 06/06/11

DOCKET NO.  09-39 195	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for residuals of fracture, right foot with degenerative joint disease (hereinafter, "right foot disorder").

2.  Entitlement to an initial compensable rating for prostatitis associated with epididymitis.


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to January 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC, which, in pertinent part, established service connection for both a right foot disorder, evaluated as 10 percent disabling, and prostatitis, evaluated as noncompensable (zero percent disabling).  Both of these ratings were effective from June 13, 2001.  The Veteran appealed contending that higher ratings were warranted.  He did not disagree with the effective date assigned for the establishment of service connection for these disabilities.

The RO in St. Petersburg, Florida, currently has jurisdiction over the Veteran's VA claims folder.


FINDINGS OF FACT

1.  All reasonable notification and development necessary for the equitable disposition of the instant case have been completed.

2.  The Veteran's service-connected right foot disorder is not manifested by moderately severe impairment, to include limitation of motion.

3.  The Veteran's service-connected prostatitis associated with epididymitis is not manifested by urine leakage, obstructed voiding, or recurrent urinary tract infection(s).

4.  The record reflects the Veteran's service-connected prostatitis associated with epididymitis is manifested by urinary frequency with awakening to void three to four times per night.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for the Veteran's service-connected right foot disorder are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2010).

2.  The criteria for a compensable rating of 20 percent for the Veteran's service-connected prostatitis associated with epididymitis are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.31, 4.115a, 4.115, Diagnostic Code 7527 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The Veteran's appeal is from disagreement with the initial ratings assigned for his right foot disorder and prostatitis following the establishment of service connection.  In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the United States Court of Appeals for Veterans Claims (Court) 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied.  Various records were obtained and considered in conjunction with this case.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested.  Specifically, he had not indicated there are any outstanding records which document symptomatology of either his right foot disorder or prostatitis which is not documented by the evidence already of record.  Moreover, he was accorded VA medical examinations regarding this case in January 2008 and November 2009 which included findings as to the symptomatology of both disabilities which are consistent with the treatment records on file and relevant rating criteria.  No inaccuracies or prejudice is demonstrated with respect to these examinations, nor has the Veteran indicated that either disability has increased in severity since the last examination.  Accordingly, the Board finds that this examination is adequate for resolution of this case.  Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board acknowledges that the November 2009 VA medical examinations, as well as other treatment records, were added to the file after the promulgation of the July 2009 Statement of the Case (SOC), and no Supplemental SOC (SSOC) appears to be on file.  However, as detailed below, these medical records appear consistent with the other medical records that were on file at the time of the July 2009 SOC.  Therefore, there is no need to remand to allow the RO to issue an SSOC.  See 38 C.F.R. §§ 19.31, 19.37, 20.1304.  Remanding for this purpose would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

General Legal Criteria

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability.  Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.

With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

Right Foot

Diagnostic Code 5010 provides that traumatic arthritis substantiated by X-ray findings is to be rated as degenerative arthritis under Diagnostic Code 5003.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  For the purpose of rating disability from arthritis, the foot is considered a major joint.  38 C.F.R. § 4.45(f).

In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003.  With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted.  However, the 10 and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  Id.  In this case, only one joint is involved, and, thus, it does not appear a 20 percent rating is warranted on this basis.

Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

Diagnostic Code 5284 contemplates other foot injuries.  Under this Code, moderate residuals of foot injuries warrant a 10 percent evaluation.  A 20 percent rating requires moderately severe residuals.  Severe residuals of foot injuries warrant a 30 percent evaluation.

The VA General Counsel noted in a precedent opinion dated August 14, 1998, that Diagnostic Code 5284 is a more general Diagnostic Code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion.  Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45.  VAOPGCPREC 9-98.

In the instant case, the Board acknowledges that the record does indicate the Veteran's service-connected right foot disorder has resulted in complaints of pain, swelling, and tenderness.  As such, the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, supra, are for consideration in the instant case.  However, the Board finds that even with these complaints, there is no indication the right foot is manifested by moderately severe impairment, to include limitation of motion.  For example, both the January 2008 and November 2009 VA medical examinations found the Veteran's right foot had no painful motion, swelling, instability, weakness, or abnormal weight bearing.  It was also noted that there was no evidence of malunion or nonunion of the tarsal or metatarsal bones, flatfoot, or muscle atrophy.  On the January 2008 VA examination, it was noted that he walked with equal weight distribution, no limp, and it was noted that he was not using a cane.  The more recent November 2009 VA examination found he had normal gait.  A thorough review of the treatment records on file does not otherwise indicate a rating in excess of 10 percent is warranted pursuant to Diagnostic Code 5284 or any other potentially applicable Diagnostic Code.

For these reasons, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent for his service-connected right foot disorder.  As such, the preponderance of the evidence is against the claim, and it must be denied.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Prostatitis

The Veteran's service-connected prostatitis is rated under Diagnostic Code 7527, for injuries, infections, or other impairment of the prostate gland.  This Code in turn makes reference to the schedular criteria for voiding dysfunction or urinary tract infection, whichever is predominant.  38 C.F.R. § 4.115b.  These criteria can be found at 38 C.F.R. § 4.115a. 

In evaluating voiding dysfunction, a particular condition is rated as urine incontinence, urinary frequency, or obstructed voiding, as follows:

Urinary incontinence: A 20 percent evaluation is warranted for urine leakage/incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day; a 40 percent evaluation is warranted for urine leakage/incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; and a 60 percent evaluation is warranted for urine leakage/incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.  38 C.F.R. § 4.115a.

Urinary frequency: A 10 percent evaluation is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night; a 20 percent evaluation is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night; and a 40 percent evaluation is warranted for a daytime voiding interval less than one hour, or; awakening to void five or more times per night.  38 C.F.R § 4.115a.

Obstructive voiding: A 0 percent evaluation is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year; a 10 percent evaluation is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) Post void residuals greater than 150 cc.; (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) Recurrent urinary tract infections secondary to obstruction; (4) Stricture disease requiring periodic dilatation every 2 to 3 months.  A 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization.  38 C.F.R. § 4.115a.

Urinary tract infection(s): When long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management are required, a 10 percent rating is warranted.  With recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management, a 30 percent rating is warranted.  38 C.F.R. 
§ 4.115a

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

In the instant case, the Board notes that both the January 2008 and November 2009 VA medical examinations found that the Veteran's service-connected prostatitis associated with epididymitis is not manifested by urinary leakage, recurrent urinary tract infections, nor obstructed voiding (urinary retention).  The Board acknowledges that various treatment records do include references to weak stream.  However, there is no indication that is it associated with post void residuals greater than 150 cc.; markedly diminished peak flow rate (less than 10 cc/sec); recurrent urinary tract infections secondary to obstruction; and/or stricture disease requiring periodic dilatation every 2 to 3 months.  In other words, the competent medical evidence does not reflect he meets or nearly approximates the criteria for a compensable rating based upon urinary incontinence, obstructed voiding, and/or urinary tract infection(s).

The Board observes that the treatment records reflect the Veteran consistently refused a digital rectal examination.  He also consistently denied dysphuria and hematuria, to include treatment records dated in August 2001, June 2004, June 2005, and May 2006.  In addition, other records, to include in April 2010, reflect he denied frequent urination.  Nevertheless, treatment records dated in August 2001 note that he reported nocturia times 3.  Although no urinary frequency appears to have been reported at the January 2008 VA examination, at the November 2009 VA examination it was again noted that he had 3 voidings per night.  As such, this indicates the Veteran's service-connected prostatitis associated with epididymitis is manifested by urinary frequency with awakening to void three to four times per night.  Moreover, the Board reiterates that the law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7.

In view of the foregoing, the Board finds that the Veteran is entitlement to a compensable rating of 20 percent based upon urinary frequency for his service-connected prostatitis associated with epididymitis. 

Other Considerations

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right foot disorder and prostatitis. However, the Board finds that his symptomatology has been stable throughout the appeal period, and does not indicate rating(s) in excess of the respective 10 and 20 percent evaluations are warranted.  Therefore, assigning staged ratings for such disabilities is not warranted.

In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra- schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Id.

Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

In this case, the Board concurs with the RO's determination that neither the Veteran's service-connected right foot disorder nor prostatitis warrants consideration of an extraschedular rating in the instant case.  The Board has carefully compared the level of severity and symptomatology of these service-connected disabilities with the established criteria found in the rating schedule, and finds that the symptomatology of both disabilities are fully addressed by the rating criteria under which this disabilities are currently rated.  There are no additional symptoms of either disability that are not addressed by the rating schedule.  Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for these service-connected disabilities.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  In addition, the record does not reflect he has been hospitalized for either disability during the pendency of this case.  Moreover, to the extent that these service-connected disabilities interfere with his employability, such interference is addressed by the schedular rating criteria.  Loss of industrial capacity is the principal factor in assigning schedular disability ratings.  See 38 C.F.R. §§ 3.321(a), 4.1.  Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).

In view of the foregoing, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total rating based upon individual unemployability due to service-connected disabilities (TDIU) claim is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.

In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable due to his service-connected right foot disorder and/or prostatitis.  Therefore, the Board finds that no further consideration of a TDIU is warranted.


ORDER

Entitlement to an initial rating in excess of 10 percent for service-connected right foot disorder is denied.

Entitlement to a compensable rating of 20 percent for prostatitis associated with epididymitis is granted, subject to the law and regulations governing the payment of monetary benefits.




____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs