Citation Nr: 1228313	
Decision Date: 08/16/12    Archive Date: 08/21/12

DOCKET NO. 99-15 687A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for a bilateral hand disorder. 

2. Entitlement to service connection for right hip disorder. 

3. Entitlement to service connection for a low back disorder. 

4. Entitlement to service connection for a sinus disorder. 

5. Entitlement to an initial disability rating greater than 10 percent for the residuals of an injury to the cervical spine with degenerative joint disease. 

6. Entitlement to an initial disability rating greater than 0 percent for sarcoidosis.

7. Entitlement to an initial disability rating greater than 20 percent for Morton's neuroma of the left foot. 

8. Entitlement to an initial disability rating greater than 10 percent for Morton's neuroma, status post surgery of the right foot, prior to June 3, 2009. 

9. Entitlement to an initial disability rating greater than 30 percent for Morton's neuroma, status post surgery of the right foot, as of June 3, 2009. 

10. Entitlement to an initial disability rating greater than 20 percent for prostatitis and urethral condyloma prior to May 19, 2009.

11. Entitlement to an initial disability rating greater than 40 percent for prostatitis and urethral condyloma as of May 19, 2009.

12. Entitlement to an initial disability rating greater than 30 percent for migraine headaches prior to July 25, 2011. 

13. Entitlement to an initial disability rating greater than 50 percent for migraine headaches as of July 25, 2011. 

(The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 3, 2009 will be addressed in a separate decision).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel
INTRODUCTION

The Veteran had active military service in the U.S. Army from March 1972 to October 1995. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 

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

In February 2000, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In October 2007, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims folder.

The Board remanded the current issues on appeal in February 2008 for further development. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration.

In the February 2008 Board remand, the Board also remanded other issues that were on appeal at that time for additional development. After completion of this development, the RO granted service connection for vertigo, sleep apnea, impotence, hypertension, and tinnitus. Since the Veteran has not since appealed either the initial rating or effective date assigned for these disabilities, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues).



FINDINGS OF FACT

1. The probative medical and lay evidence is in approximate balance as to whether the Veteran has current bilateral hand, right hip, low back, and sinus disorders as the result of his military service. 

2. Effective November 1, 1995, the Veteran's arthritis of the cervical spine is manifested by muscle spasms affecting the Veteran's gait and causing straightening of the cervical lordosis. There is no probative evidence of invertebral disc syndrome or a neurological disorder to the upper extremities as the result of the cervical spine disability.    

3. The Veteran's sarcoidosis disability is not manifested by any current residuals. 

4. The Veteran's Morton's neuroma of the left foot exhibits symptoms productive of no more than "moderately severe" impairment due to pain, fatigue, tenderness, difficulty standing or walking for extended periods of time, and functional loss. 

5. Effective November 1, 1995, the Veteran's Morton's neuroma of the right foot, status post surgery, exhibits symptoms productive of "severe" impairment due to chronic pain, fatigue, tenderness, difficulty standing or walking for extended periods of time, and functional loss. His right foot is documented to be worse than his left foot. 

6. Effective November 1, 1995, the Veteran's prostatitis and urethral condyloma is manifested by "persistent" bouts of prostatitis with extensive treatment and management, antibiotic medications such as doxycycline to treat infections, hesitancy, urgency, and constant voiding dysfunction with nocturia 4-5 times a night. 

7. Effective November 1, 1995, the Veteran's migraine headache disability is manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 

CONCLUSIONS OF LAW

1. Resolving all reasonable doubt in his favor, the Veteran has current bilateral hand fibromyalgia that was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

2. Resolving all reasonable doubt in his favor, the Veteran has current right hip arthritis that was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

3. Resolving all reasonable doubt in his favor, the Veteran has current low back degenerative disc disease that was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

4. Resolving all reasonable doubt in his favor, the Veteran has a current sinus disorder (allergic rhinitis) that was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

5. Effective November 1, 1995, the criteria are met for an initial disability rating of 20 percent, but no greater, for degenerative arthritis of the cervical spine. 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5295 (in effect prior to and as of September 23, 2002); Diagnostic Code 5242 (in effect as of September 26, 2003).

6. The criteria are not met for an initial disability rating greater than 0 percent for sarcoidosis. 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, 4.97, Diagnostic Codes 6600, 6846 (2011).

7. The criteria are not met for an initial disability rating greater than 20 percent for Morton's neuroma of the left foot. 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, 4.20, 4.21, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Code 5284 (2011).

8. Effective November 1, 1995, the criteria are met for an initial disability rating of 30 percent, but no greater, for Morton's neuroma, status post surgery of the right foot. 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, 4.20, 4.21, 4.40, 4.45, 4.59, 4.63, 4.71a, Diagnostic Code 5284 (2011).

9. Effective November 1, 1995, the criteria are met for an initial disability rating of 40 percent, but no greater, for prostatitis and urethral condyloma. 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, 4.115a, 4.115b, Diagnostic Code 7527 (2011).

10. Effective November 1, 1995, the criteria are met for an initial disability rating of 50 percent, but no greater, for migraine headaches. 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, 4.10, 4.21, 4.124a, Diagnostic Code 8100 (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). With regard to the four service connection issues being granted, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of the claim, any error is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 

With regard to the initial rating issues on appeal, the duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in December 2005, March 2008, and September 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 both his service connection and subsequent increased initial rating issues; (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 March 2008 letter 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 initial rating issues arise from disagreement with the initial evaluations following the grant of service connection for his disabilities in a January 1996 rating decision. Both the United States Court of Appeals for Veterans Claims (Court) and the Federal Circuit Court of Appeals (Federal Circuit Court) have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also 38 C.F.R. 3.159(b)(3) (no duty to provide VCAA notice arises upon VA's receipt of a Notice of Disagreement), retroactively effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).

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). 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 2005, March 2008, and September 2008, the RO readjudicated the initial rating issues in the latter September 2011 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 service treatment records (STRs), service personnel records (SPRs), Robins Air Force Base military records, Social Security Administration (SSA) disability records, VA examinations, private medical evidence, and VA treatment records. For his part, the Veteran has submitted personal statements, lay statements from others, hearing testimony, private medical evidence and opinions, duplicate medical evidence, additional VA evidence, and representative argument. 

The Veteran was also afforded June 2009, August 2010, and July 2011 VA medical examinations to rate the current severity of his cervical spine, headache, bilateral feet, sarcoidosis, and prostate 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. 

Here, all of the above VA examinations are fairly recent. They are also fully adequate. In addition, the Board is granting several increased rating claims to account for worsening of several of the Veteran's disabilities. At the July 2011 VA examination, the Veteran expressly indicated he would be fully satisfied with a 40 percent rating for his prostatitis. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Therefore, new VA examinations to rate the severity of his disabilities is not warranted. 

The RO substantially complied with the Board's February 2008 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remand instructions, the RO secured additional private medical records, SSA disability records, VA treatment records, and afforded the Veteran multiple VA examinations for his service connection and initial rating claims.   

With regard to the October 2007 videoconference hearing and February 2000 DRO hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge or DRO who chairs a Board or RO hearing fulfills 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 both hearings, the Veterans Law Judge, DRO, and representative for the Veteran outlined the issues on appeal and engaged in a colloquy as to substantiation of the claims. Overall, the hearings were legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011).

Service Connection

The Veteran dates the onset of bilateral hand, right hip, low back, and sinus disorders to the time of his military service. He maintains that at various times during his long period of military service from 1972 to 1995 he had treatment for these disorders.

Upon review of the evidence of record, the Board grants the appeal for service connection for bilateral hand, right hip, low back, and sinus disorders. There is probative medical evidence from private physicians linking current bilateral hand, right hip, low back, and sinus disorders to his military service. 

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153; 38 C.F.R. §§ 3.303, 3.306. 
	
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). 

In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 

To establish continuity of symptomatology, the Court held a Veteran must show  "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr, 21 Vet. App. at 307. Lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature. Id. at 307-08 (2007). 

Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

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 and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). 

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 

Service Connection - The Merits of the Claims

With regard to a bilateral hand disorder, service treatment records (STRs) document that in May 1993, the Veteran was treated for a sprained ring finger on the right hand. In December 1994, the Veteran  complained of pain in the third finger of his left hand. Importantly, in August 1995, he was treated for a six-year history of pain in both hands. Upon retirement in April 1995, on his Report of Medical History, the Veteran reported bilateral hand pain. The April 1995 retirement examination assessed "arthritis" in multiple joints, including both hands. Overall, STRs provide some limited evidence in support of service connection for a bilateral hand disorder. 

The Veteran asserts that bilateral hand pain has continued since discharge. See February 2000 DRO hearing testimony at page 4. In November 1995, a few weeks after discharge from service, the Veteran was referred to a rheumatologist for his bilateral hand pain. A January 1997 private treatment record documented bilateral hand tenderness upon examination. In August 1997, a private rheumatologist ordered a hand bath and range of motion exercises due to bilateral hand pain. A January 1999 VA examiner noted right hand pain. In May 2010, Dr. D.W.R., MD., indicated that the Veteran's bilateral hand pain was associated with a fibromyalgia diagnosis. The Veteran's bilateral handgrip was observed to be reduced in strength, endurance, and stamina. The Veteran is on medication for his bilateral hand pain, which is "recurrent" in nature.

With regard to a right hip disorder, STRs document that in July 1985, after playing softball, the Veteran was treated for a bruise on his right hip. In December 1993, the Veteran complained of pain in both hips. Upon retirement in April 1995, no hip disorder was reported or observed. 

However, private and VA treatment records dated in the 1990s and 2000s reveal occasional bilateral hip pain, but X-rays were often negative for any right hip diagnosis. In June 2009, VA X-rays finally revealed a small subchondral cyst on the right hip femur. In May 2010, Dr. D.W.R. assessed that the hip pain may be radicular in nature, related to his lumbar spine degenerative disc disease, or part of a fibromyalgia condition. A July 2011 VA examiner diagnosed right hip arthritis based on X-rays. 

With regard to a low back disorder, STRs document that in November 1981, the Veteran reportedly experienced low back pain playing basketball. In January 1982, the Veteran complained that low back pain radiated to his lower extremities. Thereafter, the Veteran complained of low back pain on several other occasions. In April 1994, it was noted that the Veteran was taking medication for low back problems. Upon retirement in April 1995, on his Report of Medical History, the Veteran reported "recurrent" low back and spine pain. The April 1995 retirement examination assessed "arthritis" in multiple joints, including the lumbar spine. Overall, STRs provide probative evidence in support of service connection for a lumbar spine disorder. 

Post-service, with regard to a low back disorder, private and VA treatment records dated in the 1990s and 2000s consistently document low back pain with radiculopathy. A December 1998 VA examiner noted low back pain. In April 1999 private treatment records document significant lumbar spine tenderness. The Veteran consistently reported low back pain only a short time after discharge. In April 2000, Dr. D.J.B., D.O., assessed lumbar spine disc herniation with radiculopathy in the lower extremities. VA examiners in June 2009 and July 2011 also diagnosed degenerative disc disease of the lumbar spine. 

With regard to a sinus disorder, STRs document that the Veteran was treated occasionally for complaints of nasal congestion in June 1976, July 1979, and November 1981. The diagnoses included sinusitis. Upon retirement in April 1995, on his Report of Medical History, the Veteran reported a history of ear, nose, and throat trouble, hay fever, shortness of breath, watery eyes, sneezing, chronic and frequent colds, and rhinitis. The April 1995 retirement examination assessed "seasonal hay fever." Overall, STRs provide probative evidence in support of service connection for a sinus disorder. 

Post-service, with regard to a sinus disorder, private and VA treatment records dated in the 1990s and 2000s occasionally document sinus and respiratory symptoms, including congestion. The Veteran takes Allegra. X-rays of his sinuses are repeatedly negative for any specific disorder. A March 2003 Robins Air Force Base record assessed acute sinusitis. A July 2010 VA ear examiner reflected that "numerous" records document sinus problems.  

The Veteran is competent to report continuing symptoms of these disorders since active military service and his contentions are supported by certain medical evidence of record. His account is therefore credible for purposes of establishing continuity of symptomatology for bilateral hand, right hip, low back, and sinus disorders. Barr, 21 Vet. App. at 310. The post-service complaints reported by the Veteran are sufficiently similar and close in time to the in-service complaints to demonstrate continuity, adequate to award service connection for bilateral hand, right hip, low back, and sinus disorders. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97. 

The Board will also address whether there is probative, competent evidence of a nexus (i.e., link) between current bilateral hand, right hip, low back, and sinus disorders and the Veteran's documented in-service symptoms and injuries. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). The evidence of record on the issue of nexus is mixed. That is, the medical evidence consists of several favorable medical opinions and several unfavorable medical opinions. 

In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

As to the unfavorable opinions, with regard to a bilateral hand disorder, a June 2009 VA examiner assessed a negative clinical examination of both hands. The Veteran's in-service complaints have no bearing on his current subjective complaints. In making this determination, the Veteran underwent a detailed physical examination of both hands with range of motion testing and X-rays. However, upon X-rays, "cystic areas" were noted in the proximal phalanges of the right index and left ring finger. The examiner did not find these findings of any clinical significance. Similarly, the July 2011 VA joint examiner found there was a normal clinical examination of both hands. The July 2011 VA examiner determined there was no nexus to service. The July 2011 examiner believed the Veteran was "amplifying" his symptoms. 

As to the unfavorable opinions, with regard to a right hip disorder, a June 2009 VA examiner assessed "possible early arthritic changes" for the right hip. Pain on range of motion was observed. The examiner opined that the in-service right hip bruise from playing softball in July 1985 has no clinical bearing on the Veteran's current complaints. Similarly, the July 2011 VA joint examiner diagnosed degenerative arthritis of the right hip, mild. The July 2011 examiner determined there was no nexus to service. The examiner believed the Veteran was "amplifying" his symptoms. The examiner added that the degenerative changes in the right hip are related to age, not service. 

As to the unfavorable opinions, with regard to a low back disorder, a June 2009 VA examiner assessed degenerative disc disease of the lumbar spine. The examiner opined that the in-service back pain from playing basketball in November 1981 has no clinical bearing on the Veteran's current diagnosis. Similarly, the July 2011 VA joint examiner diagnosed degenerative arthritis of the lumbar spine. The July 2011 VA examiner determined there was no nexus to service. The July 2011 VA examiner believed the Veteran was "amplifying" his symptoms. The examiner added that the degenerative changes in the low back are related to age, not service. Notably, neither VA examiner addressed the significance of the Veteran's in-service diagnosis of arthritis of the low back at his April 1995 retirement examination. 

As to the unfavorable opinions, with regard to a sinus disorder, a June 2009 VA examiner assessed no clinical or radiographic evidence of chronic sinusitis. The Veteran's subjective complaints were discussed however. No relationship to service was determined. 

As to the favorable opinions, with regard to a bilateral hand disorder, in May 2010 Dr. D.W.R. indicated that the Veteran's bilateral hand pain was associated with a fibromyalgia diagnosis. The Veteran's bilateral handgrip was observed to be reduced in strength, endurance, and stamina. He is on medication for his bilateral hand pain, which is "recurrent" in nature. Dr. D.W.R. assessed that the Veteran's bilateral hand pain associated with fibromyalgia "more likely than not" occurred during his military service. Dr. D.W.R. emphasized that even during service an August 1995 STR remarked there was a "six year history" of bilateral hand pain. 

As to the favorable opinions, with regard to right hip and low back disorders, in May 2010 Dr. D.W.R. opined that it is "more likely than not" that the Veteran's right hip pain and low back disc herniation were caused by the job requirements of his military occupational specialty (MOS) as a supply specialist during service. The examiner reasoned that this MOS required a great deal of heavy lifting, carrying, unloading, and unpacking of supplies during the Veteran's many years of military service. Dr. D.W.R. added that Army physical training for this Veteran involved many years of weight bearing activities, marching, and jumping that would more likely than not cause a herniated lumbar disc during service. The Veteran's DD Form 214 confirms that the Veteran was a supply specialist during service, lending probative support to this theory of service connection. 

As to the favorable opinions, with regard to a low back disorder, in November 2006 Dr. C.N.B., MD., concluded that based on a review of the STRs, the Veteran clearly had a low back injury during service, which is the most likely cause of his current disc herniation confirmed by MRI imaging. The Veteran's degenerative changes took place over a number of years according to Dr. C.N.B. 

As to the favorable opinions, with regard to a sinus disorder, in July 2011 a VA sinus examiner opined that the Veteran's documented in-service and post-service sinus symptoms were consistent with a diagnosis of allergic rhinitis. The onset of this condition was during service in 1975, only two years after induction into his military service. The condition has continued continuously since service and is controlled by medication. 

The above VA and private examinations and opinions lend some probative support to the Veteran's service connection claims. These opinions were thorough, supported by an explanation, and based on a review of the claims folder. They are supported by the confirmed in-service treatment for bilateral hand, right hip, low back, and sinus symptoms. There is also probative medical and lay evidence of record of continuity of symptoms since discharge from service in 1995. 

As currently codified, VA law defines the "benefit of the doubt" doctrine as:

	When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.

38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Here, there is an approximate balance of the positive and negative evidence. Certain elements of both the positive and negative opinions in this case are probative. The medical opinions of record have their flaws as well. But in light of the contrasting, yet equally probative opinions in the present case, the benefit of the doubt is resolved in the Veteran's favor. Thus, service connection for bilateral hand, right hip, low back, and sinus (rhinitis) disorders is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board does not express an opinion as to the severity of his bilateral hand, right hip, low back, and rhinitis disorders for the purpose of assigning disability ratings, as the RO will undertake this decision upon implementation of this action. 

Higher Initial Ratings

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 coordination of rating with impairment of function. 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 has perfected an appeal as to the assignment of initial ratings following the initial award of service connection for his cervical spine, sarcoidosis, migraine headache, bilateral foot, and prostatitis disabilities. Thus, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection (November 1, 1995) until the present. The Board will also consider probative evidence prior to this date, to the extent this evidence sheds additional light on the Veteran's overall disability picture. In certain instances, this has already resulted in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his disabilities have been more severe than at others. Id. 

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 

With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). However, as the Veteran has already been assigned a compensable evaluation for cervical spine arthritis under VA's Rating Schedule, § 4.59 is of no benefit to the Veteran in the present case.

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). 

Increased Initial Rating for Cervical Spine

The Veteran's cervical spine disability (degenerative joint disease) is currently evaluated as 10 percent disabling under Diagnostic Code 5242, arthritis. 38 C.F.R. § 4.71a. The Veteran has appealed the original January 1996 rating decision that granted service connection at 10 percent, effective from November 1, 1995, the day after discharge from service. The Veteran contends that his service-connected cervical spine disorder is more severe than is contemplated by the currently-assigned 10 percent rating. 

Upon review of the evidence, the Board presently grants the appeal and finds that an initial 20 percent disability rating is warranted. 

The Veteran filed his claim for service connection for his lumbar spine disability in September 1995. Significantly, the criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). If, as here, a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The amendments mentioned have established the effective dates without a provision for retroactive application. Thus, the September 2002 amendments may only be applied after September 2002; likewise, the September 2003 amendments may only be applied after September 2003. 

The 2002 amendments allow for intervertebral disc syndrome (IVDS) to be evaluated based on incapacitating episodes or based on chronic orthopedic and neurologic manifestations combined. The 2003 amendments renumber the diagnostic codes and create a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms.       

However, with regard to IVDS for the cervical spine, IVDS has not been diagnosed by any medical professional of record. There are some assessments regarding incapacitating episodes; regardless, IVDS has not been diagnosed or shown. The Veteran has never specifically asserted IVDS of the cervical spine. Cervical spine degenerative joint disease has been assessed, but there is no evidence of stenosis or degenerative disc disease of the cervical spine. See VA examinations dated January 1999, January 2006, June 2009, October 2010, and July 2011; May 2010 report of Dr. D.W.R.; November 2006 report of Dr. C.N.B; and SSA disability records.  Therefore, consideration of IVDS under Diagnostic Code 5293 (pre-2002 and September 2002 amendments), or of IVDS under Diagnostic Code 5243 (September 2003 amendments), is not warranted in the present case. 

The Board notes that the RO addressed all three sets of regulations in various SSOCs throughout the appeal. Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 

Under the pre-September 2002 and September 2002 criteria, under Diagnostic Code 5285 (residuals of vertebra fracture), a 100 percent rating is warranted for residuals of a fractured vertebra, with cord involvement, bedridden, or requiring long leg braces. A 60 percent rating is available, without cord involvement but with abnormal mobility requiring a neck brace. Notes to Diagnostic Code 5285 state that, in other cases, the disability should be rated according to limited motion or muscle spasm, adding 10 percent for demonstrable deformity of the vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (in effect prior to September 26, 2003).  

Under the pre-September 2002 and September 2002 criteria, under Diagnostic Code 5290 (limitation of motion of cervical spine), severe limitation of motion warrants a 30 percent evaluation, moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation, and slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (in effect prior to September 26, 2003).  

Under the pre-September 2002 and September 2002 criteria, 38 C.F.R. § 4.71a, Diagnostic Code 5287 (ankylosis of the cervical spine) provides a 40 percent evaluation if ankylosis of the cervical spine is unfavorable and a 30 percent evaluation if favorable. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (in effect prior to September 26, 2003).   

Under the pre-September 2002 and September 2002 criteria, 38 C.F.R. § 4.71a, Diagnostic Code 5286 (complete bony fixation (ankylosis) of the spine), allows either a 60 or 100 percent rating, depending on severity and whether ankylosis was favorable or unfavorable.

Under the pre-September 2002 and September 2002 criteria, Diagnostic Code 5295, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation. Lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion, unilaterally, in the standing position, warrants a 20 percent evaluation. With characteristic pain on motion, a 10 percent evaluation is warranted and with slight subjective symptoms only, a noncompensable evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (in effect prior to September 26, 2003).   

The Board has considered that the rating schedule applied under the pre-September 2002 and September 2002 criteria does not define a normal range of motion for the cervical spine. However, current regulations do establish normal ranges of motion for the cervical spine. See 38 C.F.R. § 4.71a, Plate V (2011). The supplementary information associated with the amended regulations state that the ranges of motion were based on medical guidelines in existence since 1984. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, the Board will apply the most recent September 2003 guidelines for ranges of motion of the cervical spine to the old criteria. 

Specifically, the September 2003 amendments stipulate that IVDS (preoperatively or postoperatively) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. 
§ 4.25.  In the present case, since there is no IVDS diagnosis for the cervical spine, the Board will not consider the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.   

Under the current September 2003 amendments, the General Rating Formula for Diseases and Injuries of the Spine is as follows:

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:  

A 10% evaluation will be assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. 

A 20% rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, 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 30% evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A 40% rating requires evidence of unfavorable ankylosis of the entire cervical spine.

A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. 

A 100% rating requires evidence of unfavorable ankylosis of the entire spine. 

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

Note (2):  (See also Plate V)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (4):  Round each range of motion measurement to the nearest five degrees. 

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). 

The evidence of record supports an initial 20 percent rating for the Veteran's cervical spine degenerative joint disease. 38 C.F.R. § 4.7. This 20 percent rating is effective under Diagnostic Code 5295 for lumbosacral strain (in effect prior to September 26, 2003). The Board has considered the muscles spasm symptoms discussed in Diagnostic Code 5295 to be analogous to muscle spasms for the cervical spine. Specifically, a lumbosacral (or cervical) strain with muscle spasm on extreme forward bending and loss of lateral spine motion, unilaterally, in the standing position, warrants a 20 percent evaluation. A 20 percent rating in the present case can also be effective under the September 2003 amendments under Diagnostic Code 5242 for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Private and VA and SSA treatment records dated from 1995 to the present reveal complaints of muscle spasm. VA examiners in June 2009 and July 2011, Dr. D.W.R. in May 2010, and Dr. C.N.B in November 2006 all assessed that muscle spasms in the cervical spine affected the Veteran's gait or caused straightening of the cervical lordosis. Thus, an initial 20 percent rating for the cervical spine is warranted, effective throughout the entire appeal from November 1, 1995, under either the pre-September 2002, September 2002, or September 2003 amendments to the rating criteria.   

However, there is no basis to award an initial disability rating greater than 20 percent for the Veteran's cervical spine disability under the pre-September 2002, September 2002, or September 2003 amendments to the rating criteria. 38 C.F.R. § 4.7. 

That is, under the pre-2002 regulations and subsequent September 2002 amendments, neither private treatment records, VA treatment records, nor VA examinations conducted in January 1999, January 2006, June 2009, October 2010, and July 2011 reveal vertebral fracture requiring a neck brace (Diagnostic Code 5285); favorable or unfavorable ankylosis of the cervical spine (Diagnostic Codes 5286 and 5287); or sacro-iliac injury and weakness (Diagnostic Code 5294). Therefore, these diagnostic codes under the former and interim criteria 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). 

As to orthopedic manifestations, under all three sets of regulations, the evidence does not demonstrate forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine. There has also never been any probative evidence of any form of ankylosis. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Because the Veteran was able to move his cervical spine - although not always with normal range of motion, by definition, his cervical spine is not immobile. Range of motion findings throughout the appeal, although limited, do not reveal a diagnosis of favorable or unfavorable ankylosis or any of the signs of unfavorable ankylosis listed in Note (5) of the General Rating Formula for Diseases and Injuries of the Spine.

The January 1999 VA examiner documented full range of motion for the cervical spine. No spasm was found. 

The January 2006 VA examiner documented 45 degrees of forward flexion, 45 degrees of extension, 45 degrees of left lateral and right lateral flexion, and 80 degrees of left and right rotation. Pain was noted on forward flexion and extension. There was no evidence of weakness, lack of endurance, fatigue, or incoordination upon repetition. 

The June 2009 VA examiner documented 45 degrees of forward flexion with pain at 45 degrees, 30 degrees of extension with pain at 30 degrees, 45 degrees of left lateral flexion with pain at 45 degrees, 30 degrees of right lateral flexion with pain at 30 degrees, 80 degrees of left rotation with pain at 80 degrees, and 80 degrees of right rotation with pain at 60 degrees. Repetition increased the pain and other factors of functional loss, but no additional loss of range of motion was noted. 
 
An August 2010 VA examiner documented full range of motion for all joints, although it is not entirely clear whether the cervical spine was examined. 

The July 2011 VA examiner documented 45 degrees of forward flexion, 45 degrees of extension, 20 degrees of left lateral and right lateral flexion, and 40 degrees of left and right rotation. Pain was noted throughout each range of motion, but pain did not cause any further loss of motion. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The examiner described the Veteran's arthritis of the cervical spine as "mild."  

As to functional loss, the Board has considered factors of functional loss noted throughout VA, private, SSA treatment records and examinations, as well as the Veteran's credible lay statements and hearing testimony. Such factors include his documented pain, tenderness, tightness, stiffness, flare-ups, difficulty with prolonged sitting and standing and bending and walking, difficulty lifting and carrying, difficulty getting out of bed, fatigue, decreased mobility, limitations with activities of daily living; use of a cervical brace, use of a TENS unit, and occasional use of a cane. The Veteran has received numerous steroid injections, as well as physical therapy. He takes several medications to lessen the pain. The Veteran is still able to drive. All of these factors of functional loss are considered and encompassed within the higher 20 percent rating assigned for orthopedic manifestations of the cervical spine disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.

As to neurological manifestations, the probative evidence of record does not demonstrate neuropathy or radiculopathy of the upper extremities associated with his service-connected cervical spine arthritis. At the October 2007 video hearing, the Veteran reported numbness in his arms. See hearing testimony at pages 18-19. However, the January 1999 and January 2006 VA examiners did not assess any neurological abnormalities in the upper extremities. The June 2009 VA examiner observed good muscle strength, normal pulses, normal reflexes, no muscle wasting, intact dermatomes, and intact cranial nerves for the upper extremities. The August 2010 VA examiner found normal reflexes in the upper extremities. Sensation was normal, vibratory and position sense intact. The July 2011 VA examiner noted that the Veteran denied any specific radicular pattern other than numbness in the fingertips. The examiner stated that the radial, ulnar, and medial nerves were normal in both motor and sensory respects. Muscle strength and sensation was normal in the upper extremities. The examiner assessed there were no radicular symptoms. Thus, despite the Veteran's subjective complaints, the Board will not assign a separate rating as there insufficient medical evidence of a neurological disorder impacting the Veteran's upper extremities due to his cervical spine disorder.  

Accordingly, the evidence supports an initial 20 percent disability rating, but no greater, for the Veteran's cervical spine arthritis. 38 C.F.R. § 4.3. 

Since the effective date of his award, his cervical spine disability has never been more severe than contemplated by its 20 percent rating, so the Board cannot "stage" his rating. Fenderson, 12 Vet. App. at 126.

Increased Initial Rating for Sarcoidosis

The Veteran's sarcoidosis disability is currently evaluated as 0 percent disabling under Diagnostic Code 6846, sarcoidosis. 38 C.F.R. § 4.97 (2011). The Veteran has appealed the original January 1996 rating decision that granted service connection at 0 percent, effective from November 1, 1995, the day after discharge from service. The Veteran contends that his service-connected sarcoidosis disorder is more severe than is contemplated by the currently-assigned 0 percent rating. 

Upon review of the evidence, the Board denies the appeal.

Diagnostic Code 6846 provides that sarcoidosis is to be rated under either the rating criteria of Diagnostic Code 6846, or the active disease or residuals are to be rated as chronic bronchitis (Diagnostic Code 6600) and extra-pulmonary involvement rated under the specific body system involved. 

Diagnostic Code 6846 provides that sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment is rated noncompensably (0 percent) disabling. Sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated 30 percent disabling. Sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control is rated 60 percent disabling. Sarcoidosis with cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment, is rated 100 percent disabling. 38 C.F.R. § 4.97 (2011). 

Again, sarcoidosis may alternatively be rated as chronic bronchitis under Diagnostic Code 6600. Diagnostic Code 6600 provides that Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. 

The evidence of record does not warrant an initial compensable rating for sarcoidosis. 38 C.F.R. § 4.7. The probative evidence of record does not reveal pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids; requiring systemic high dose (therapeutic) corticosteroids for control; or cor pulmonale; or cardiac involvement with congestive heart failure; or progressive pulmonary disease with fever, night sweats, or weight loss despite treatment. See 38 C.F.R. § 4.97, Diagnostic Code 6846. 

And since there is no active disease or residuals of sarcoidosis, consideration of rating for chronic bronchitis under Diagnostic Code 6600 is not warranted. See 38 C.F.R. § 4.97. In any event, pulmonary function tests (PFTs) do not demonstrate Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted. Although the Veteran asserts that he has shortness of breath and uses an inhaler due to sarcoidosis, the most probative medical evidence of record does not confirm any active pulmonary residuals of sarcoidosis. See February 2000 and October 2007 hearing testimony; August 2006 Veteran's statement. 

Specifically, an April 1997 private treatment record indicates that the Veteran's sarcoidosis is in remission. Similarly, a March 1998 VA treatment record documents that sarcoidosis is in remission. X-rays of the lungs dated in January 1999 show that the lungs are clear. A January 2006 VA examiner assessed that sarcoidosis was stable. A June 2009 VA examiner, after conducting PFTs and a CT scan of the lungs, concluded there was no clinical or radiographic evidence of sarcoidosis or any other lung disease. A July 2011 VA examiner, after conducting PFTs and X-rays of the lungs, opined that the Veteran's sarcoidosis was presently inactive. The examiner remarked that the sarcoidosis did not progress since the original 1982 in-service diagnosis. There was no X-ray evidence of sarcoidosis or lung disease. The Veteran does not take any medication for the disorder. The examiner added that the Veteran's reported shortness of breath is not due to pulmonary sarcoidosis as chest X-rays, CT scans, and PFTs were all normal. There are also no residuals of any chronic bronchitis. 

The Board has also considered a January 1999 VA examination report that assessed mild restrictive lung disease at that time based on PFTs. An X-ray was recommended by the examiner to determine if sarcoidosis existed. Subsequently, however, a January 1999 X-ray of the chest was unremarkable as lungs were expanded and clear. No sarcoidosis or residuals was diagnosed at that time. 
In addition, in November 2006 Dr. C.N.B. opined that the Veteran's sarcoidosis has worsened "significantly" since service. He says that PFTs were not correctly performed. However, this opinion is entitled to very limited probative value. Subsequent PFTs and X-rays conducted after Dr. C.N.B.'s opinion do not confirm any lung problems or sarcoidosis. In fact, no post-service X-rays of record have ever revealed sarcoidosis or any residuals thereof. Dr. C.N.B.'s findings are not supported by the other medical evidence of record. 

Accordingly, the preponderance of the evidence is against a disability rating greater than 0 percent for the Veteran's sarcoidosis disability. 38 C.F.R. § 4.3. The claim is denied. 

Since the effective date of his award, his sarcoidosis disability has never been more severe than contemplated by its 0 percent rating, so the Board cannot "stage" his rating. Fenderson, 12 Vet. App. at 126.

Increased Initial Rating for Left Foot

The Veteran's Morton's neuroma of the left foot is currently evaluated as 20 percent disabling under Diagnostic Code 5284, other foot injury. 38 C.F.R. § 4.71a (2011). The RO assigned this initial rating effective from June 3, 2009. The rating criteria do not have a specific diagnostic code for this disability. The disorder is, therefore, rated as analogous to "other foot injuries" because the functions affected, the anatomical localization, and the symptomatology are most closely analogous to this disorder. See 38 C.F.R. § 4.20.     

The Veteran contends that his service-connected left foot disorder is more severe than is contemplated by the currently-assigned 20 percent rating. Upon review of the evidence, the Board denies the appeal.

Under Diagnostic Code 5284, a 10 percent evaluation is provided for a "moderate" foot injury. A 20 percent evaluation is provided for a "moderately severe" foot injury. A 30 percent evaluation is provided for a "severe" foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. 

The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just."  38 C.F.R. § 4.6.

"Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63.  

Examples under 38 C.F.R. 4.63 which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop.  

VA's Office of General Counsel has stated 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, VA's 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, 4.45, and the DeLuca case. See VAOPGCPREC 9-98 (Aug. 14, 1998). 

Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. 

The overall disability picture does not support an initial rating greater than 20 percent rating for the Veteran's left foot disability. 38 C.F.R. § 4.7. That is, VA, private, and lay evidence of record do not meet the criteria for a "severe" foot injury at the 30 percent level. The Veteran's own statements also provide no basis for a 30 percent rating. At the June 2009 VA examination, the Veteran reported to have constant foot pain bilaterally, the right foot being much worse than the left foot. His feet hurt with walking, standing, climbing stairs, and doing any weightbearing activities. There is almost a constant, sharp, stabbing, burning pain, primarily in the right foot, more so than the left foot. In terms of daily activities, the Veteran cannot stand for 30 minutes without shifting his weight. The examiner found the Veteran had localized swelling to the sub second, third and fourth metatarsophalangeal joint regions, particularly on the right foot and to a lesser extent, the left foot. There was mild, white plantar scaling and peeling noted to the soles of both feet. There was pain on palpation to the left second plantar distal intermetatarsal space and the plantar sub-metatarsal head too. There was a negative Mulder sign on the left foot, but there was pain on palpation to the left medial first metatarsal head. The examiner reviewed the claims file and stated that the level of impairment for Morton neuroma would be "moderately severe" for the left foot as a result of gait abnormalities and typical chronic pain of Morton's neuroma.

At the August 2010 VA examination, the Veteran reported that he never had surgery for the left foot, just injections for pain. He reports pain and weakness and other symptoms, worse in the other right foot. His left foot is not as severe. He has lack of endurance and fatigue for repetitive motion activities. He takes prescription medication for his foot pain. He does not use assistive devices for his feet, but has flare-ups five times a week. He can only walk for 15 minutus due to his bilateral foot condition. Objective examination of the left foot revealed no deformities, a few calluses, normal pulses, no edema, no erythema, no warmth, slight tenderness, no laxity, no instability, and no skin breakdown. He exhibited full range of motion of 20 degrees dorsiflexion and 45 degrees plantar flexion with slight pain. Repetitive motion did increase pain, but did not limit motion or cause fatigue. There was also crepitus on motion.  

The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the Deluca case have been considered, but do not provide a basis for assigning a rating greater than 20 percent under Diagnostic Code 5284 when considering limitation of motion. See VAOPGCPREC 9-98 (Aug. 14, 1998). The Veteran's left foot symptoms are not "severe" in nature.  

With regard to loss of use, medical and lay evidence of record does not show that the Veteran has actually lost the use of the left foot. He is able to walk and stand, albeit with limitations, and clearly does not suffer from loss of use of the left foot. The evidence demonstrates he has more function in the left foot than would be served with an amputation stump. See 38 C.F.R. § 4.63. There is no evidence of ankylosis from this disability, shortening of the right extremity, or complete paralysis of the external popliteal nerve and consequent footdrop. Id. A higher rating therefore cannot be awarded on this basis.

Furthermore, other diagnostic codes for foot disabilities which provide for a rating higher than 20 percent are not more appropriate because the evidence of record does not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flat foot), Diagnostic Code 5278 (claw foot), and Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). 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). Therefore, the Board will continue to evaluate the left foot disability under Diagnostic Code 5284 since it provides the potential for the most favorable rating. 

Accordingly, the preponderance of the evidence is against a disability rating greater than 20 percent for the Veteran's Morton's neuroma of the left foot disability. 38 C.F.R. § 4.3. The claim is denied. 

Since the effective date of his award, his left foot disability has never been more severe than contemplated by its 20 percent rating, so the Board cannot "stage" his rating. Fenderson, 12 Vet. App. at 126.


Increased Initial Ratings for Right Foot Beyond 10 and 30 Percent

The Veteran's service-connected right foot disability is rated under Diagnostic Code 5284, other foot injury. 38 C.F.R. § 4.71a (2011). In the January 1996 rating decision on appeal, the RO granted service connection for Morton's neuroma, status post surgery of the right foot. The rating criteria do not have a specific diagnostic code for this disability. The disorder is, therefore, rated as analogous to "other foot injuries" because the functions affected, the anatomical localization, and the symptomatology are most closely analogous to this disorder. See 38 C.F.R. § 4.20.     

The Veteran's right foot disability is evaluated by "staged ratings" based upon the facts found during the period in question. Fenderson, 12 Vet. App. at 126. That is, from November 1, 1995 to June 3, 2009, the Veteran's right foot disability is rated as 10 percent disabling. From June 3, 2009 to the present, his right foot disability is rated as 30 percent disabling. 

The Veteran contends that his service-connected right foot disability is more severe than is contemplated by the currently-assigned 10 and 30 percent ratings. The Board presently grants the appeal in part and finds that a 30 percent disability rating is warranted throughout the entire appeal period, effective November 1, 1995. 

The evidence of record is consistent with an initial 30 percent rating for the right foot disability throughout the entire appeal period, effective from November 1, 1995. 38 C.F.R. § 4.7. VA treatment records, VA examinations, private treatment records, as well as the Veteran's personal statements and testimony, document severe and constant right foot pain. The Veteran repeatedly states that his right foot is worse than his left foot. During the entire appeal period, these records reveal sometimes subjective, yet credible complaints of "severe" pain and flare-ups for the right foot disability. Overall, the evidence of record meets the criteria for a "severe" foot injury at the 30 percent level. 

Specifically, private treatment records dated in 1997 and 1998 reveal "chronic" right foot pain. Physical therapy and injections did not provide any relief for the Veteran's right foot pain. VA examinations dated in April 2000 and February 2006 document right foot pain treatment. In an August 2006 statement, the Veteran reported "constant" right foot pain. In November 2006, Dr. C.M.B. discussed constant right foot pain. At his October 2007 video hearing testimony at pages 21-22, the Veteran stated that he could not climb stairs or walk long distances due to his right foot. 

At the June 2009 VA examination, the Veteran reported to have constant foot pain bilaterally, the right foot being much worse than the left foot. He had surgery on the right foot during service. The right foot hurts with walking, standing, climbing stairs, and doing any weightbearing activities. There is almost a constant, sharp, stabbing, burning pain, primarily in the right foot, more so than the left foot. In terms of daily activities, the Veteran cannot stand for 30 minutes without shifting his weight. The examiner found the Veteran had localized swelling to the sub second, third and fourth metatarsophalangeal joint regions, particularly on the right foot and to a lesser extent, the left foot. There was mild, white plantar scaling and peeling noted to the soles of both feet. The examiner reviewed the claims file and stated that the level of impairment for Morton neuroma would be "severe" for the right foot as a result of gait abnormalities and typical chronic pain of Morton's neuroma. The Veteran takes prescription medication to treat the pain. On the right foot, there was plantar second distal intermetatarsal space pain on palpation with also pain on palpation to the sub-metatarsal head two region with pain on the right third metatarsophalangeal joint with full range of motion. The Veteran's gait was apropulsive, antalgic, with a limp. He favored the right side.

At the August 2010 VA examination, the Veteran reported that he had surgery on the right foot only, as well as injections for pain. He reports pain and weakness and other symptoms, worse in the right foot. His right foot is more severe. He has lack of endurance and fatigue for repetitive motion activities. He takes prescription medication for his foot pain. He does not use assistive devices for his feet, but has flare-ups five times a week. He can only walk for 15 minutus due to his bilateral foot condition. Objective examination of the right foot revealed no deformities, a few calluses, normal pulses, no edema, no erythema, no warmth, slight tenderness, no laxity, no instability, and no skin breakdown. He exhibited full range of motion of 20 degrees dorsiflexion and 45 degrees plantar flexion with slight pain. Repetitive motion did increase pain, but did not limit motion or cause fatigue. There was also crepitus on motion. X-rays noted a talar beak on the right foot. 

The provisions of 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and the Deluca case have been considered, providing a basis for assigning a higher 30 percent rating under Diagnostic Code 5284. See VAOPGCPREC 9-98 (Aug. 14, 1998). 

An initial 30 percent rating is clearly warranted under Diagnostic Code 5284 for a "severe" right foot disorder throughout the entire appeal period, as there is no discernible difference in the severity of his right foot disorder prior to and after June 3, 2009.  

However, the evidence of record does not warrant the maximum 40 percent rating. 38 C.F.R. § 4.7. With regard to loss of use under Diagnostic Code 5284, the medical and lay evidence of record does not show that the Veteran has actually lost the use of the right foot. He is able to walk and stand, albeit with limitations, and clearly does not suffer from loss of use of the right foot. The evidence demonstrates he has more function in the right foot than would be served with an amputation stump. See 38 C.F.R. § 4.63. There is no evidence of ankylosis from this disability, shortening of the right extremity, or complete paralysis of the external popliteal nerve and consequent footdrop. Id. A higher rating therefore cannot be awarded on this basis.

Furthermore, other diagnostic codes for foot disabilities which provide for a rating higher than 30 percent are not more appropriate because the evidence of record does not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flat foot), Diagnostic Code 5278 (claw foot). 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). Thus, the Board will continue to evaluate the right foot disability under Diagnostic Code 5284 since it provides the potential for the most favorable rating. 

Accordingly, resolving any doubt in the Veteran's favor, the evidence supports an initial disability rating of 30 percent, but no greater, for the Veteran's right foot disorder. 38 C.F.R. § 4.3. 

The RO previously staged the Veteran's right foot disorder rating. That is, the RO awarded a 10 percent rating from November 1, 1995 to June 3, 2009, and a 30 percent rating after June 3, 2009. However, the Board finds an initial 30 percent rating for a right foot disorder is warranted, effective throughout the entire appeal period from November 1, 1995. It is not necessary to "stage" the Veteran's rating, as his symptoms have been fairly consistent at the "severe" 30 percent level. Fenderson, 12 Vet. App. at 126.   

Increased Initial Ratings for Prostatitis Beyond 20 and 40 Percent

The Veteran's service-connected prostatitis and urethral condyloma disability is rated under Diagnostic Code 7527, prostate gland injuries. 38 C.F.R. § 4.115b (2011). In the January 1996 rating decision on appeal, the RO granted service connection for prostatitis and urethral condyloma.

The Veteran's prostatitis disability is evaluated by "staged ratings" based upon the facts found during the period in question. Fenderson, 12 Vet. App. at 126. That is, from November 1, 1995 to May 19, 2009, the Veteran's prostatitis disability is rated as 20 percent disabling. From May 19, 2009 to the present, his prostatitis disability is rated as 40 percent disabling. 

The Veteran contends that his service-connected prostatitis disability is more severe than is contemplated by the currently-assigned 20 and 40 percent ratings. The Board presently grants the appeal in part and finds that an initial 40 percent disability rating is warranted throughout the entire appeal period, effective November 1, 1995. 

Prostate gland injuries are rated as voiding dysfunction or urinary tract infection, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7527.

The Rating Schedule for voiding dysfunction provides that the particular condition will be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. 

When rating for urine leakage, a 20 percent evaluation is awarded when the disability requires the wearing of absorbent materials that must be changed less than two times per day. A 40 percent rating is in order when the disability requires the wearing of absorbent materials that must be changed two to four times per day. A maximum evaluation of 60 percent is warranted when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Id.

When rating for urinary frequency, a 20 percent evaluation is awarded when the daytime voiding interval is between one and two hours, or; there is awakening to void three to four times per night. A maximum rating of 40 percent is in order when the daytime voiding interval is less than one hour, or; there is awakening to void five or more times per night. Id. 

When rating for obstructed voiding, there is no 20 percent rating. A maximum evaluation of 30 percent is awarded when there is urinary retention requiring intermittent or continuous catheterization. Id.

When rating for urinary tract infection, a 10 percent evaluation is warranted when they require long-term drug therapy, one to two hospitalizations per year, and/or require intermittent intensive management. A 30 percent evaluation is warranted when there is recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. If urinary tract infections result in poor renal function, the disorder is rated as renal dysfunction. Id. 

The evidence of record is consistent with an initial 40 percent rating for the prostatitis disability throughout the entire appeal period, effective from November 1, 1995. See 38 C.F.R. § 4.7. That is, under voiding dysfunction, his disability can be rated as 40 percent disabling for urinary frequency as there is evidence of awakening to void five or more times per night. See 38 C.F.R. § 4.115a. In addition, under urinary tract infection, there is evidence of recurrent symptomatic infection requiring continuous intensive management. See id. 

In particular, private records, VA treatment records, Robins Air Force Base records, and credible lay statements and testimony from the 1990s and 2000s reveal "persistent" bouts of prostatitis with extensive treatment, antibiotic medications such as doxycycline to treat infections, hesitancy, urgency, and constant voiding dysfunction due to nocturia. No specific renal dysfunction is assessed. But private and VA treatment records from 1997 to 1999 document frequent prostatitis complaints, including nocturia and voiding problems. A January 1999 VA examiner noted recurrent prostatitis with flare-ups. A December 2003 private treatment record confirmed present treatment for prostatitis with doxycycline that is getting "worse." A January 2006 VA examiner documented many years of treatment with antibiotics for prostate flare-ups. In an August 2006 statement, the Veteran reported nocturia 5-7 times a night. In October 2007, the Veteran testified that he must take antibiotics 5-6 times a year due to recurrent prostatitis flare-ups. See hearing testimony at pages 12-13. A May 2009 VA examiner remarked that the Veteran took antibiotics 4-5 times a year for flare-ups of prostatitis. The Veteran also exhibited nocturia 4-5 times a night. Chronic prostatitis was diagnosed with the recurrent use of antibiotics. A July 2011 VA examiner noted no renal dysfunction.  However, the Veteran was not examined for prostate issues at that time since the Veteran refused since because he was satisfied with the 40 percent rating for prostatitis that the RO had granted. 

The Board finds an initial 40 percent rating is clearly warranted under Diagnostic Code 7527 for prostatitis throughout the entire appeal period, as there is no discernible difference in the severity of his prostatitis disability prior to and after May 19, 2009.  

However, the evidence of record does not warrant an initial disability rating beyond 40 percent for prostatitis. 38 C.F.R. § 4.7. Initially, under obstructed voiding and urinary tract infection, the Veteran is already at the maximum 30 percent rating available. There is also no evidence his urinary tract infections result in poor renal function. See 38 C.F.R. § 4.115a. Thus, neither obstructed voiding nor urinary tract infection nor renal function can provide him with a higher rating here. Furthermore, under urine leakage, for a potential 60 percent rating, the medical and lay evidence of record does not reveal the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day. See id.    

Accordingly, resolving any doubt in the Veteran's favor, the evidence supports an initial disability rating of 40 percent, but no greater, for the Veteran's prostatitis and urethral condyloma disability. 38 C.F.R. § 4.3. 

The RO previously staged the Veteran's prostatitis and urethral condyloma disability rating. That is, the RO awarded a 20 percent rating from November 1, 1995 to May 19, 2009, and a 40 percent rating after May 19, 2009. However, the Board finds an initial 40 percent rating for a prostatitis disability is warranted, effective throughout the entire appeal period from November 1, 1995. It is not necessary to "stage" the Veteran's rating, as his symptoms have been fairly consistent at the 40 percent level. Fenderson, 12 Vet. App. at 126.   

Increased Initial Ratings for Headaches 

The Veteran's service-connected migraine headache disability is rated under Diagnostic Code 8100 (migraine). 38 C.F.R. § 4.124a. In the January 1996 rating decision on appeal, the RO granted service connection for migraine headaches. 

The Veteran's migraine headache disability is evaluated by "staged ratings" based upon the facts found during the period in question. Fenderson, 12 Vet. App. at 126. That is, from November 1, 1995 to July 25, 2011, the Veteran's migraine headache disability is rated as 30 percent disabling. From July 25, 2011 to the present, his migraine headache disability is rated as 50 percent disabling. 

The Veteran contends that his service-connected migraine headache disability is more severe than is contemplated by the currently-assigned 30 and 50 percent ratings. The Board presently grants the appeal in part and finds that an initial 50 percent disability rating is warranted throughout the entire appeal period, effective November 1, 1995. 

Under Diagnostic Code 8100, a noncompensable (0 percent) rating for migraine headaches is warranted with less frequent attacks. A 10 percent rating is in order for migraine with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum evaluation of 50 percent is awarded when migraine is characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. 

The regulations do not define the term "prostrating," but "prostration" is defined as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1554 (31st ed.2007).

The evidence of record is consistent with an initial maximum 50 percent rating for headaches throughout the entire appeal period, effective from November 1, 1995. 38 C.F.R. § 4.7. In making this determination, the Board has considered VA treatment records, private treatment records, VA examinations, as well as the Veteran's personal statements and hearing testimony. This evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, meeting the criteria for a 50 percent rating. See 38 C.F.R. § 4.124a. 

Specifically, private treatment records dated in the 1990s and 2000s document headaches at least several times a month. At times these headaches cause the Veteran to have to lie down in a dark room. At the February 2000 DRO hearing, the Veteran reported "severe" headaches that can last days or weeks. They were described as totally incapacitating at times. See testimony at pages 7-8, 14. The Veteran complained of headaches at January 1999 and January 2006 VA examinations. In August 2006 the Veteran's spouse submitted a statement verifying that the Veteran has daily severe headaches. In the same month, the Veteran submitted a statement discussing daily severe headaches which require him to lie in a dark room. The Veteran stated they were totally incapacitating. In November 2006 Dr. C.N.B. noted that the Veteran's headaches were daily. They were described as "severe," and could last for hours. Medications did not help alleviate the symptoms. In October 2007 video testimony the Veteran reiterated that his headaches were still incapacitating. In May 2010 Dr. D.W.R. indicated that the Veteran's headaches were incapacitating and severely disabling in nature. The August 2010 VA examiner assessed daily headaches, incapacitating in nature, that required the Veteran to stay in bed. The July 2011 VA examiner mentioned that the Veteran's headaches were "prostrating," daily, and incapacitating. The examiner added that the Veteran was not able to work due to his headaches. 

The Veteran has credibly related that the headaches are prostrating on certain occasions by describing them as "severe" or "incapacitating." The Veteran credibly states that he has to lie down in a dark room. In short, there is sufficient evidence the Veteran has experienced prostrating headaches. The Veteran's lay assertions regarding prostrating headaches are credible. See generally Pierce v. Principi, 18 Vet. App. 440 (2004) (lay evidence may can be probative of frequency, prolongation, and severity of headaches). 

The Board finds an initial 50 percent rating is clearly warranted under Diagnostic Code 8100 for migraine headaches throughout the entire appeal period, as there is no discernible difference in the severity of his migraine headache disability prior to and after July 25, 2011.    

However, the evidence of record does not warrant an initial disability rating beyond 50 percent for migraine headaches. 38 C.F.R. § 4.7. As noted above, 50 percent is the maximum rating available under Diagnostic Code 8100. There is no other appropriate diagnostic code. As such, the Veteran may only receive a higher rating under on an extra-schedular basis, which is discussed below.   

Accordingly, resolving any doubt in the Veteran's favor, the evidence supports an initial disability rating of 50 percent, but no greater, for the Veteran's migraine disability. 38 C.F.R. § 4.3. 

The RO previously staged the Veteran's migraine headache disability rating. That is, the RO awarded a 30 percent rating from November 1, 1995 to July 25, 2011, and a 50 percent rating after July 25, 2011. However, the Board finds an initial 50 percent rating for a migraine headache disability is warranted, effective throughout the entire appeal period from November 1, 1995. It is not necessary to "stage" the Veteran's rating, as his symptoms have been fairly consistent at the 50 percent level. Fenderson, 12 Vet. App. at 126.   

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 for all the initial rating claims, 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 right foot, left foot, cervical spine, sarcoidosis, headache, or prostatitis disabilities that would render the schedular criteria inadequate. Moreover, to the extent that these disabilities interfere with his employability, such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.


ORDER

Service connection for a bilateral hand disorder is granted.  

Service connection for a right hip disorder is granted.  
  
Service connection for a low back disorder is granted.  

Service connection for a sinus disorder (allergic rhinitis) is granted.  

Effective November 1, 1995, an initial 20 percent disability rating, but no greater, for the residuals of an injury to the cervical spine with degenerative joint disease is granted.  

An initial disability rating greater than 0 percent for sarcoidosis is denied.  

An initial disability rating greater than 20 percent for Morton's neuroma of the left foot is denied.    

Effective November 1, 1995, an initial 30 percent disability rating, but no greater, for Morton's neuroma, status post surgery of the right foot is granted.   

Effective November 1, 1995, an initial 40 disability rating, but no greater, for prostatitis and urethral condyloma is granted. 

Effective November 1, 1995, an initial 50 percent disability, but no greater, for migraine headaches is granted.   




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



Department of Veterans Affairs