Citation Nr: 1301803	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  94-10 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatoid arthritis.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability.  

3.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability.

4.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left index finger disability.  

5.  Entitlement to service connection for a acquired psychiatric disorder, to include depression, bipolar disorder, and posttraumatic stress disability (PTSD).

6.  Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of a chipped tooth, as caused by treatment received at the Durham VA Medical Center in July 1994.

7.  Entitlement to a higher initial evaluation (rating) for residual of right great toe injury, moderate degenerative joint disease, status post arthrodesis, evaluated as noncompensably disabling from December 12, 1997 to May 22, 2003; as 10 percent disabling from October 1, 2003 to October 21, 2004, May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010; and as 30 percent disabling from November 1, 2010, forward.  

8.  Entitlement to an increased evaluation (rating) in excess of 20 percent for a lumbosacral strain.

9.  Entitlement to an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010.


WITNESS AT HEARING ON APPEAL

Veteran (Appellant)


ATTORNEY FOR THE BOARD

T. Sherrard, Counsel


INTRODUCTION

The Veteran, who is the Appellant in this case, had active service from August 1973 to September 1982.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from August 1992, September 1995, July 2002, December 2004, January 2006, June 2009, and March 2011 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). 

The Board notes that the Veteran's prior attorney, Jan Dils, withdrew her representation of the Veteran by way of a December 2010 letter.  Although subsequent correspondence has been sent by the RO to Ms. Dils, and, in fact, Ms. Dils has submitted correspondence to the RO on behalf of the Veteran, there is no indication that the Veteran retained Ms. Dils as his attorney subsequent to the December 2010 withdrawal of representation or that he has retained other representation.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.

In December 2004, the Veteran submitted a Statement in Support of Claim in which he requested compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of his right great toe, as caused by surgery performed at a VA facility in May 2004.  This claim has not yet been adjudicated by the RO, is thus not before the Board for appellate consideration, and is REFERRED to the RO for appropriate action.  

The issue of entitlement to an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  An October 2007 Board decision denied service connection for rheumatoid arthritis, finding no evidence of a current diagnosis of rheumatoid arthritis; the Veteran did not appeal the Board's decision to the U.S. Court of Appeals for Veterans Claims.  

2.  The evidence associated with the claims file subsequent to the October 2007 Board decision was either previously submitted for consideration or does not relate to an unestablished fact necessary to establish the claim, so does not raise a reasonable possibility of substantiating a claim for service connection for rheumatoid arthritis.

3.  An August 1992 rating decision denied reopening of the claims of entitlement to service connection for right shoulder and neck disabilities, finding no new and material evidence that demonstrated a nexus between the right shoulder and neck disabilities and active service; the Veteran did not file a timely notice of disagreement.  

4.  The evidence associated with the claims file subsequent to the August 1992 rating decision was either previously submitted for consideration or does not relate to an unestablished fact necessary to establish the claims, so does not raise a reasonable possibility of substantiating a claims for service connection for right shoulder and neck disabilities.

5.  A September 1995 rating decision denied service connection for a left index finger disability, finding no evidence of a nexus between the left index finger disability and either active service or a service-connected disability; the Veteran did not file a timely notice of disagreement.  

6.  The evidence associated with the claims file subsequent to the September 1995 rating decision was either previously submitted for consideration or does not relate to an unestablished fact necessary to establish the claim, so does not raise a reasonable possibility of substantiating a claim for service connection for a left index finger disability.

7.  The Veteran experienced symptoms of a psychiatric disorder during active service. 

8.  Symptoms of a psychiatric disorder were not chronic in service. 

9.  Symptoms of a psychiatric disorder have not been continuous since service separation. 

10.  The Veteran's psychiatric disorders, diagnosed as depression and bipolar disorder, are related to his active service.

11.  The Veteran did not engage in combat with the enemy during service.

12.  The Veteran has a current diagnosis of PTSD.

13.  The Veteran's claimed stressors are supported by credible evidence.  

14.  The claimed stressors are adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressors.

15.  Prior to the 1994 surgery by VA, the Veteran's tooth number ten was fully intact.  

16.  The Veteran experienced additional disability, manifested by permanent damage to tooth number ten, following treatment by VA in 1994. 

17.  The 1994 consent form signed by the Veteran did not indicate the risks of the 1994 surgery performed by VA.

18.  The permanent damage to tooth number ten was caused by an event not reasonably foreseeable during VA treatment in 1994.

19.  For the period from December 12, 1997 to May 22, 2003, the Veteran's right great toe disability did not manifest more than slight hallux valgus, and was not operated upon with resection of the metatarsal head.  

20.  For the period from October 1, 2003 to October 21, 2004, the Veteran's right great toe disability did not manifest malunion or nonunion of the tarsal or metatarsal bones.

21.  For the periods from May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010, the Veteran's right great toe disability manifested nonunion of the metatarsal bone with complaints of pain and absence of motion.  

22.  For the period from November 1, 2010, forward, the Veteran's right great toe disability did not manifest actual loss of use of the foot.    

23.  Throughout the rating period on appeal, the Veteran's lumbosacral spine disability has been manifested by forward flexion to no less than 85 degrees, accounting for pain on motion and after repetition; no ankylosis; and no incapacitating episodes.  


CONCLUSIONS OF LAW

1.  The October 2007 Board decision, which denied reopening of the claim of entitlement to service connection for rheumatoid arthritis, was final when issued.  38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012).

2.  The evidence received subsequent to the October 2007 Board decision is not new and material to reopen the claim of entitlement to service connection for rheumatoid arthritis.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. 
§ 3.156 (2012).

3.  The August 1992 rating decision, which denied reopening of the claims of entitlement to service connection for right shoulder and neck disabilities, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012).

4.  The evidence received subsequent to the August 1992 rating decision is not new and material to reopen the claims of entitlement to service connection for right shoulder and neck disabilities.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).

5.  The September 1995 rating decision, which denied service connection for a left index finger disability, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012).

6.  The evidence received subsequent to the September 1995 rating decision is not new and material to reopen the claim of entitlement to service connection for a left index finger disability.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R.  § 3.156 (2012).

7.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a psychiatric disorder, to include depression bipolar disorder, and PTSD, have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

8.  Resolving all reasonable doubt in favor of the Veteran, the criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of permanent damage to tooth number ten, as caused by an unforeseen event during VA treatment in 1994, have been met.  38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012).

9.  The criteria for an initial compensable evaluation for a right great toe injury, moderate degenerative joint disease, status post arthrodesis, have not been met for the period from December 12, 1997 to May 22, 2003.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (2012).

10.  The criteria for an increased evaluation in excess of 10 percent for a right great toe injury, moderate degenerative joint disease, status post arthrodesis, have not been met for the period from October 1, 2003 to October 21, 2004.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5280, 5283 (2012).

11.  Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent evaluation for a right great toe injury, moderate degenerative joint disease, status post arthrodesis, have been met for the periods from May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5280, 5283 (2012).

12.  The criteria for an increased evaluation in excess of 30 percent for a right great toe injury, moderate degenerative joint disease, status post arthrodesis, have not been met for the period from November 1, 2010, forward.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5280, 5283 (2012).

13.  The criteria for an increased evaluation in excess of 20 percent for a lumbosacral strain have not been met for any period.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Whether Reopening Claims for Service Connection for 
Rheumatoid Arthritis, Right Shoulder, Neck, and Left Index Finger Disabilities
 
In October 1982, the Veteran filed an initial claim for service connection for a right shoulder disability.  The claim was denied in a January 1983 rating decision, which found that there was no evidence of a current disability.  The Veteran appealed the RO's decision, and, ultimately, the Board denied service connection for a right shoulder disability in a March 1984 decision.  The Veteran did not appeal the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court); consequently, the Board's March 1984 decision was final when issued.  See 38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012).  

In April 1989, the Veteran filed a request to reopen his claim of entitlement to service connection for a right shoulder disability, as well as a new claim of entitlement to service connection for a neck disability.  The RO denied the claims in a June 1989 rating decision, finding that no new and material evidence had been presented with regard to the right shoulder claim, and that there was no evidence of a current neck disability.  The Veteran did not file a timely notice of disagreement; consequently, the June 1989 rating decision became final.  See 38 U.S.C.A. § 7105; 
38 C.F.R. §§ 20.302, 20.1103.

In June 1990, the Veteran filed an initial claim for service connection for rheumatoid arthritis, along with a request to reopen his claims of entitlement to service connection for right shoulder and neck disabilities.  The claims were denied in a July 1990 rating decision, which found that there was no evidence of a current diagnosis of rheumatoid arthritis, and no new and material evidence received to reopen the right shoulder and neck claims.  The Veteran appealed the RO's July 1990 decision, and, in the meantime, filed another request to reopen his claims of entitlement to service connection for right shoulder and neck disabilities in February 1992.  The RO denied reopening of the claims in an August 1992 rating decision, which became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  

In May 1994, the Veteran filed an initial claim of entitlement to service connection for a left index finger disability, claimed as secondary to his service-connected knee disability.  The RO denied the claim in a September 1995 rating decision, finding no evidence of a nexus between the finger disability and any service-connected disability.  The Veteran did not file a timely notice of disagreement, and the September 1995 rating decision became final.  Id.  

In December 1997, the Veteran filed a request to reopen his claims of entitlement to service connection for right shoulder, neck, and left index finger disabilities.  The RO denied reopening of all three claims in the July 2002 rating decision that is the subject of this appeal, and the Veteran appealed the RO's decision.     

Ultimately, the Board denied service connection for rheumatoid arthritis (on appeal from the July 1990 rating decision) and denied reopening of the right shoulder, neck, and left index finger claims (on appeal from the July 2002 rating decision) in an October 2007 decision.  The Veteran appealed only the portion of the Board's decision to the Court that denied reopening of the right shoulder, neck, and left index finger claims.  Consequently, the Board's October 2007 decision regarding denial of service connection for rheumatoid arthritis was final when issued.  See 38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012).  

With regard to the right shoulder, neck, and left index finger claims, in September 2008, the Court granted a Joint Motion for Remand (Joint Motion) that vacated and remanded that portion of the Board's decision for compliance with the instructions provided in the Joint Motion.  

In April 2010, the Board remanded the issues of whether new and material evidence had been received to reopen claims of entitlement to service connection for right shoulder, neck, and left index finger disabilities for further development.  As discussed below, the development has now been completed, and the issues are now appropriate for appellate review.  

The Veteran filed a request to reopen the claim of entitlement to service connection for rheumatoid arthritis in April 2008.  In the June 2009 rating decision that is the subject of the instant appeal, the RO found that new and material evidence showing a current diagnosis of rheumatoid arthritis had not been received and denied reopening of the claim.  Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claims is whether new and material evidence has been received to reopen the claims of entitlement to service connection for rheumatoid arthritis (since the October 2007 Board decision), right shoulder, neck, and left index finger disabilities (since the August 1992 and September 1995 rating decisions).  

As noted above, in the June 2009 and July 2002 rating decisions on appeal, the RO found that new and material evidence had not been received.  Consequently, the RO denied reopening of the claims.  Notwithstanding the fact that the RO denied reopening of the claims, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  

"New" evidence is defined as evidence not previously received by agency decision-makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012).

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been received, the claim must be reopened.  The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the previous requirement of a well-grounded claim).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki,
24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence of record at the time of the last final October 2007 Board decision denying service connection for rheumatoid arthritis included service treatment records and post-service VA and private treatment records.  None of these records showed a diagnosis or treatment for rheumatoid arthritis.  A March 1991 VA treatment note indicated that the Veteran told the VA clinician that he had rheumatoid arthritis, but there is no indication that any clinician made such a diagnosis.  Based on this evidence, the Board denied service connection for rheumatoid arthritis, finding no evidence of a current disability.  

Evidence added to the record since the time of the last final denial in October 2007 includes additional post-service treatment records and statements of the Veteran.  None of these records show a diagnosis of or treatment for rheumatoid arthritis.  The evidence added to the record since the previous October 2007 denial does not constitute new and material evidence.  Although the evidence is new, in that it was not associated with the claims file prior to the last final denial in October 2007, it is not material because it does not relate to an unestablished fact necessary to substantiate the claims - that the Veteran has a current disability manifested as rheumatoid arthritis that was incurred during or related to active service - and does not raise a reasonable possibility of establishing the claim.  For these reasons, the Board finds that the additional evidence does not raise a reasonable possibility of substantiating the claim for service connection for rheumatoid arthritis; therefore, the Board finds that the new and material criteria under 38 C.F.R. §§ 3.156(a) have not been satisfied, and the claim for service connection for rheumatoid arthritis cannot be reopened.  

The evidence of record at the time of the last final August 1992 and September 1995 rating decisions denying reopening of the claims of entitlement to service connection for right shoulder, neck, and left index finger disabilities included service treatment records that showed that the Veteran had in-service right shoulder and neck complaints that resolved without residuals, and a December 1982 VA examination report was negative for complaints or findings pertaining to the neck.  In addition, treatment records showed that the Veteran injured his right shoulder in a post-service 1989 motor vehicle accident.  With regard to the left index finger claim, although the Veteran claimed that he injured his finger when his knee gave out and he fell, the treatment records did not show a relationship between the left index finger disability and any service-connected disability.   Based on this evidence, the RO denied reopening of the right shoulder, neck, and left index finger claims, finding that no new and material evidence had been presented showing a nexus between those disabilities and either active service or a service-connected disability.   

Evidence added to the record since the last final denials of the right shoulder, neck, and left index finger claims in August 1992 and September 1995 include additional treatment records and statements of the Veteran.  Current post-service treatment records are negative for any current neck disability, and, although they show treatment for a shoulder condition, there is no evidence of a nexus between the shoulder condition and active service.  Moreover, treatment records do not show a relationship of either causation or aggravation between the Veteran's finger disability and his service-connected knee disability.  

The evidence added to the record since the previous August 1992 and September 1995 denials of the right shoulder, neck, and left index finger claims does not constitute new and material evidence.  Although the evidence is new, in that it was not associated with the claims file prior to the last final denials August 1992 and September 1995, it is not material because it does not relate to an unestablished fact necessary to substantiate the claims - that the Veteran has current disabilities of the right shoulder, neck, and left index finger that were incurred during or related to active service or to another service-connected disability - and does not raise a reasonable possibility of establishing the claims.  

For these reasons, the Board finds that the additional evidence does not raise a reasonable possibility of substantiating the claims for service connection for right shoulder, neck, or left index finger disabilities; therefore, the Board finds that the new and material criteria under 38 C.F.R. §§ 3.156(a) have not been satisfied, and the claims for service connection for right shoulder, neck, and left index finger disabilities cannot be reopened.  


Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. 
§ 3.303(d).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror.  See DSM-IV § 309.81 (4th ed. 1994).

In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy."  See Hayes v. Brown, 5 Vet. App. 60, 66 (1993).  If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service."  38 U.S.C.A. § 1154(b) (2012); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994).  To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) (2012) requires that a veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99.

If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors.  See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

With regard to stressor verification, the VA regulation at 38 C.F.R. 3.304(f) has recently been amended by the Secretary of Veterans Affairs, by the addition a new paragraph which liberalizes, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  The paragraph reads as follows: 

If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

38 C.F.R. § 3.304(f)(3) (2012), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010).  The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010.

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms.  Id.  To prevail on the theory of secondary service causation, generally, the record must show 
(1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512   (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 

Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended.  See 71 Fed. Reg. 52,744 (2006).  The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation.  Regardless of whether the case is considered under the old or new regulation, based upon the facts in this case, neither version is more favorable, and the regulatory change does not affect the outcome herein.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

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."  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).  The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection for a Psychiatric Disorder

The Veteran avers that his current psychiatric disorders - depression, bipolar disorder, and PTSD - are related to active service, or, alternatively, were caused or aggravated by his service-connected disabilities.  He filed a claim for service connection for depression resulting from his service-connected disabilities in April 2005.  The RO denied the claim in a January 2006 rating decision.  The Veteran filed a timely notice of disagreement (NOD), but the RO continued to deny the claim for service connection in a December 2006 Statement of the Case (SOC).  The Veteran filed a timely substantive appeal, and the Board denied service connection for a psychiatric disorder in an October 2007 decision.  The Veteran appealed that decision to the Court.  In September 2008, the Court granted a Joint Motion for Remand (Joint Motion).  In the September 2008 Order, the Court vacated and remanded the portion of the Board's October 2007 decision which had denied service connection for a psychiatric disorder for compliance with instructions provided in the Joint Motion.  

Subsequently, in April 2010, the Board remanded the claim for further development.  Specifically, the Board found that VA's duty to assist included obtaining the Veteran's service personnel records, conducting any appropriate development regarding verification of the Veteran's alleged PTSD stressors, and affording the Veteran a psychiatric examination to determine the nature and etiology of his current psychiatric disorder(s).  The development requested was completed, and the claim is now appropriate for appellate review.  

The Board will address PTSD separately from depression and bipolar disorder, as the criteria for service connection for PTSD differ from the criteria for other psychiatric disabilities, as explained above.  

Depression and Bipolar Disorder

After a review of all the evidence of record, lay and medical, the Board finds that the Veteran did experience psychiatric disorder symptoms during service; however, the weight of the evidence demonstrates that psychiatric disorder symptoms were not chronic during service.  The August 1973 enlistment examination report is negative for any complaints, symptoms, diagnosis, or history of a psychiatric disorder, and psychiatric evaluation is marked as normal.  On the Report of Medical History, the Veteran checked "no" next to "depression or excessive worry" and "nervous trouble of any sort."  Periodic evaluation reports from January 1974 and February 1979 are also negative for any complaints, symptoms, diagnosis, or history of a psychiatric disorder.  Moreover, an October 1981 treatment note indicates that a mental status examination was within normal limits.  

However, at the August 1982 separation examination, the Veteran checked "yes" next to "frequent trouble sleeping," "depression or excessive worry," and "nervous trouble of any sort" on his Report of Medical History, thus establishing that the Veteran did experience some symptoms of a psychiatric disorder during active service.  Psychiatric evaluation was marked as normal at separation.  

In short, the service treatment records reflect that the Veteran experienced some symptoms of a psychiatric disorder in service (depression, worry, and nervous trouble), but that psychiatric evaluation was consistently normal, including at separation.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).

The Board next finds that the weight of the evidence demonstrates that psychiatric disorder symptoms have not been continuous since service separation in September 1982.  

Following service separation in September 1982, the evidence of record shows no complaints, diagnosis, or treatment for psychiatric disorder symptoms until July 1999, at which time the Veteran reported he had been experiencing difficulty sleeping for ten years.  He reported nightmares two or three times per month, which consisted of feeling as if someone was grabbing him by the neck.  He stated that he did not remember any event that precipitated his nightmares, with no war experience or other major life experience.  He was referred for a psychiatric evaluation and was diagnosed with a sleep disorder secondary to chronic depressive disorder in February 2000.  The first documented diagnosis of bipolar disorder was made by a private physician, Dr. J., in April 2005.     

Additional evidence showing that psychiatric symptoms have not been continuous since service separation includes a December 1982 VA examination at which psychiatric evaluation was marked as "normal;" a September 1988 psychiatric evaluation conducted for the purpose of entrance into a substance abuse program at which no Axis I diagnosis was made other than cocaine abuse; a September 1994 Nursing Admission Assessment Form that indicates that the Veteran denied any history of previous psychiatric problems; a September 1994 discharge summary from a VA substance abuse program that shows no Axis I diagnosis other than substance dependence (alcohol); the aforementioned July 1999 VA treatment note that indicates psychiatric symptoms manifested through nightmares for ten years (placing inception of the symptoms at least seven years after service separation); the aforementioned February 2000 VA psychiatric consultation at which the Veteran reported a number of post-service stressors, but did not relate any of his symptoms to his military service; and an August 2010 VA treatment note at which the Veteran reported receiving mental health treatment since the early 1990s. 

However, despite the lack of continuity of psychiatric symptoms since service separation, the Board finds that the competent evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed depression and bipolar disorder are related to his active service.  While there are conflicting medical opinions on the question of whether the Veteran's current psychiatric disorders are related to active service, most of them have been favorable.  The Veteran submitted an April 2005 letter from Dr. J., a private psychiatrist, who assessed bipolar affective disorder and major depressive disorder, noting that the Veteran had a long and sustained history of bipolar disorder, and opining that his depression was related to a back injury sustained while in active service.    

The Veteran was afforded a VA psychiatric examination in October 2005.  The Veteran reported that his psychiatric symptoms began in 1974, and that he had difficulty sleeping for many years.  He also described a number of difficulties during active service, including racial tensions, difficulty getting along with others, and behavioral and disciplinary problems.  The VA examiner assessed depression and bipolar disorder, and opined that the Veteran's difficulties during active service may have resulted from characterological problems, and as they increased, the Veteran developed depression, which then evolved into bipolar disorder.  In an addendum report, the VA examiner clarified that it was his opinion that the Veteran's depression and bipolar disorder were at least as likely as not related to active service.  

In yet another addendum report dated December 2005, the VA examiner opined that the Veteran's bipolar disorder was not at least as likely as not related to or caused by the service-connected conditions of lumbosacral strain, bilateral chondromalacia, scar on the left jaw, and degenerative joint disease of the great toe.  He reasoned that a review of the Veteran's medical records and examination of the Veteran did not show any connection, cause, or relationship between these conditions.  The VA examiner did concede that the Veteran's service-connected physical disabilities may aggravate his bipolar disorder, but could not determine the degree of aggravation without resort to speculation.  

The Veteran also submitted a May 2010 report from a private psychologist, Dr. A., who diagnosed mood disorder NOS (mood instability associated with borderline personality, plus chronic anger state disorder) and chronic PTSD.  Dr. A. opined that the Veteran's personality disorder and mood problems were severe and compounded by his PTSD, and by active service, when most of his symptoms began.  

The Veteran was afforded another VA psychiatric examination in November 2011.  The VA examiner did not have access to any medical records prior to writing her opinion.  She assessed bipolar disorder, mixed, with mention of psychotic symptoms, and opined that the Veteran's bipolar disorder was at least as likely as not a continuation of the psychiatric condition manifested during active service.  Although she did not have access to the Veteran's military records, the VA examiner reasoned that the Veteran appeared to have been extremely distressed by his difficulties in the military, and the feeling that he somehow failed in the military, as well as anger at how he was treated, may have both contributed significantly to his condition.  

Moreover, the VA examiner opined that the Veteran's unremitting physical pain was a significant contributor to his current difficulties, and that it was at least as likely as not that the various service-connected physical conditions caused or aggravated his mental disorder.  The VA examiner later obtained access to the Veteran's claims file, and, in a January 2012 report, did not revise her opinion regarding the Veteran's bipolar disorder.  

In sum, both the Veteran's diagnosed depression and bipolar disorder have been related by competent mental health professionals to either active service or to his service-connected disabilities.  The Board finds that the October 2005 and November 2011 VA opinions and the opinions of Drs. J. and A. are competent and probative medical evidence because they are factually accurate, as it appears all physicians were informed of the relevant evidence in this case, considered the Veteran's competent statements regarding his in-service psychiatric symptoms as well as his complete medical history, relied on accurate facts, and articulated opinions that are supported by reasoning.  Resolving reasonable doubt in the Veteran's favor on the question of nexus of currently diagnosed depression and bipolar disorder to service, the Board finds that the currently diagnosed depression and bipolar disorder were incurred during active service. 

In light of the Veteran's competent statements regarding his in-service psychiatric symptoms (some of which are also documented in the service treatment records), and the competent and probative October 2005 and November 2011 VA opinions and private medical opinions of Drs. J. and A. that relate the currently diagnosed depression and bipolar disorder either directly to active service or to the Veteran's service-connected disabilities, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a psychiatric disorder, to include depression and bipolar disorder, are met.  See 38 U.S.C.A.  § 5107(b); 38 C.F.R. § 3.102.

PTSD

The Veteran also claims that he has PTSD due to several in-service stressors.  Among the claimed stressors, the Veteran stated at an April 2006 VA mental health evaluation that he witnessed a fellow service member's parachute fail and watched the service member fall 500 feet to the ground (but was unharmed).  In addition, the Veteran described an off duty incident in which he shot a Marine who had assaulted and harmed his brother.  He indicated that the shooting was done in self-defense, and that, afterwards, he felt no remorse.  

Another incident involved the Veteran witnessing the scene of an accident in which he later learned involved a friend of his whom he was supposed to meet for dinner.  On another occasion, the Veteran saw a car strike another soldier, knocking him into the air, and then turning around coming back to run him over again.  The Veteran stated that he feared what the driver of the car would do to him.  The final stressor occurred while the Veteran was on a weekend pass when he witnessed his friend being shot to death while he was standing next to him.  A December 2008 Statement in Support of Claim clarifies that this last incident occurred in July 1980.    
 
With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), there are diagnoses of PTSD of record in accordance with DSM-IV criteria.  The first requirement for any service connection claim is competent evidence of existence of a current disability.  Brammer, 3 Vet. App. at 225.  The Veteran was first diagnosed with PTSD by a VA staff psychiatrist in April 2004.  

The PTSD diagnosis was confirmed by a VA social worker in April 2006, based on the stressors listed above.  Finally, although the November 2011 VA examiner, prior to reviewing the Veteran's claims file, initially opined that the Veteran did not meet the criteria for a PTSD diagnosis, she wrote an addendum report in January 2012 in which she opined that the Veteran did meet the diagnostic criteria for a PTSD diagnosis under the DSM-IV.  In reaching her opinion, the VA examiner conducted a thorough mental health evaluation, reviewed the Veteran's medical records, and assessed an Axis I diagnosis of PTSD after determining that all the DSM-IV criteria for a PTSD diagnosis had been met.  

The second criterion for service connection for PTSD is credible supporting evidence that the claimed in-service stressor occurred.  First, the Board finds that the evidence does not show, nor does the Veteran allege, that he engaged in direct combat with the enemy during active service.  His DD Form 214 lists his military occupational specialties (MOS) as a field artillery radar crewman, motor transport operator, and combat surveillance/target acquisition crewman, and states that he had foreign in Hawaii from November 1977 to June 1979.  He received the Army Service Ribbon, Overseas Service Ribbon, National Defense Service Medal, and Good Conduct Medal.  These awards do not indicate that the Veteran was directly engaged in combat.  His DA Form 2-1 clarifies that he had overseas service in Hawaii and Germany.  In addition, there is no other indication that the Veteran engaged in combat, nor does he allege direct combat with the enemy.  For this reason, 38 U.S.C.A. § 1154(b), discussed above, is not applicable in this case.

Moreover, while the claimed in-service stressors are consistent with the places, types, and circumstances of his service, there is no indication that the Veteran had fear of hostile military or terrorist activity during active service.  For this reason, the Board finds that the new 38 C.F.R. § 3.304(f)(3) is not applicable in this case.  Therefore, the Board will next consider whether the claimed stressors are supported by credible evidence.  38 C.F.R. § 3.304(f).  

In that regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran's claimed stressor, particularly the shooting of the Veteran's friend, occurred.  In support of his claimed stressor, the Veteran submitted a copy of a newspaper obituary column, which confirms the death of the individual named by the Veteran from gunshot wounds.  He also submitted a newspaper article stating that the individual's shooter was arrested.  Finally, the claims file includes a signed statement from the shooter, F.J., indicating that the Veteran was present when F.J. shot the Veteran's friend.  In addition, the Veteran's service personnel records demonstrate that he began to have behavioral and disciplinary problems beginning in 1981, after the 1980 shooting, and that, up until then, he had received positive performance reviews from his superiors.  Moreover, the Veteran is credible, as his various accounts of his stressors have been consistent throughout the course of this appeal.  Resolving reasonable doubt in favor of the Veteran, the Board finds that the claimed stressor involving the shooting of the Veteran's friend occurred.

Finally, the third criterion, a link, established by medical evidence, between current symptoms and an in-service stressor, is met in this case.  Here, as discussed above, the Veteran was diagnosed with PTSD by the VA examiner in January 2012, and the doctor based her diagnosis on the Veteran's claimed in-service stressors of witnessing another soldier being badly burned during basic training and seeing his friend being shot dead.  The psychiatrist specifically found that the DSM-IV criteria had been met based on the Veteran's military stressors, and provided examples of how the stressors and his response to them met each criterion.  For example, the VA psychiatrist assessed that the Veteran's claimed stressors involved actual or threatened death or serious injury, feelings of fear and helplessness, and that he avoided stimuli associated with the trauma, such as activities, places, or people that would arouse recollections of the trauma.  Thus, the evidence demonstrates that a VA psychiatrist determined that the claimed stressors are adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the stressors.

The Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed PTSD is related to active service.  For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for PTSD are met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Laws and Regulations for Compensation Under 38 U.S.C.A. § 1151

Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability which is not the result of the veteran's own willful misconduct or failure to follow instructions, disability compensation may be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected.  See 38 C.F.R. 
§§ 3.361, 3.800(a) (2012).

If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C.A. § 1151.  First, the additional disability may qualify for compensation if the disability is not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA.  Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable.  These provisions of law apply to claims received by VA on or after October 1, 1997.  38 C.F.R. § 3.361(a).

To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter.  To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability.  Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause.  Disability that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(b), (c).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent.  Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  38 C.F.R. § 3.361(d).  To determine whether there was informed consent, VA will consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32 (2012).  Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent.  Id.

Regulations further provide that compensation is not payable for the necessary consequences of VA treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative.  "Necessary consequences" are those which are certain or intended to result from the treatment provided.  Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would, in fact, be administered.  38 C.F.R. § 3.361.

The Board notes for information and clarification that, for a period previous to October 1997, 38 U.S.C.A. § 1151 did not require any showing of fault or negligence in order for a claim to be granted.  See 38 U.S.C.A. § 1151 (1996); 
38 C.F.R. § 3.358 (1996) (requiring only that additional disability be "the result of" VA hospital care, medical or surgical treatment, or examination); Brown v. Gardner, 513 U.S. 115 (1994).  However, as noted above, the current version of 
38 U.S.C.A. § 1151 requires that, for claims filed on or after October 1, 1997, the claimed additional disability must have been "caused by" VA hospital care, medical or surgical treatment, or examination, and further adds a "proximate cause" requirement that the additional disability be caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability be an event which was not reasonably foreseeable.  See Pub. L. No. 104-204, §§ 4.22(a), 110 Stat. 2926 (Sept. 26, 1996); VAOPGCPREC 40-97.

In this case, the Veteran filed his claim seeking benefits under 38 U.S.C.A. § 1151 in July 2005.  Therefore, under the applicable statute and regulation, this claim must be adjudicated under the current version of section 1151.  That is, even if there is an additional disability which resulted from VA care, the legal standard precludes compensation if the evidence does not establish that there was negligence or other fault on the part of VA, or an event not reasonably foreseeable.

Entitlement to Compensation Under 
38 U.S.C.A. § 1151 for a Chipped Tooth

The Veteran filed a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a chipped tooth in July 2005.  The RO denied the claim in a January 2006 rating decision.  The Veteran filed a timely substantive appeal, and the Board remanded the claim for further development in October 2007.  The development requested has been completed, and the claim is now appropriate for appellate review.  

The Veteran avers that, during a 1994 surgery conducted at the Durham VA Medical Center, his tooth was chipped.  While the tooth was subsequently repaired, it has since broken again, and is in need of further repair and/or restoration.  

A July 1994 operative report from the Durham VA Medical Center indicates that the Veteran underwent a left index ray deletion; it does not indicate, however, that any of the Veteran's teeth were chipped or otherwise damaged during the procedure.  However, an undated post-operative VA treatment note (sometime prior to September 1994, when the next appointment was scheduled) indicates that a tooth was chipped during surgery.  

Moreover, a VA treatment note from February 1997 indicates that the Veteran's tooth (no. 10) was dislodged during anesthesia at the Durham VA Medical Center, and that it was subsequently repaired in 1995.  An October 2004 VA treatment note indicates the Veteran's tooth was chipped during a surgery in 1994 and was repaired, but that the repair did not hold and the Veteran needed additional treatment.  A September 2006 VA treatment note indicates that the Veteran's tooth was broken during surgery in 1999 (presumably a typing error), that it was subsequently repaired, but that the Veteran currently had a lot of pain in his mouth secondary to the same tooth that was now broken off at the gum line.  However, the treatment note indicates that the appointment for a dental consultation was cancelled as it was determined that the Veteran was not eligible for VA dental care.   

Dental records dated prior to the 1994 surgery from May 1993 indicate that tooth number ten, the tooth that was chipped during the 1994 surgery, was fully intact at that time.  

The claims file includes a consent form that states that the Veteran was counseled as to the risks of the July 1994 procedure; however, this is not helpful in determining the risks associated with this procedure because the form does not indicate what the risks were.  The Veteran signed the document under a statement indicating he understood the risks and expected results.

Based on the foregoing, the Board finds that the weight of the evidence of record is at least in equipoise as to whether benefits are warranted under the provisions of 38 U.S.C.A. § 1151 for additional disability of a chipped tooth.  First, the evidence demonstrates that the VA treatment received by the Veteran in 1994 was the actual cause of additional disability manifested by a chipped tooth, which was fully intact prior to the 1994 surgery.  See 38 C.F.R. § 3.361(b) (to determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to the condition thereafter).  VA dental records from May 1993 do not demonstrate any symptoms or defects of tooth number ten prior to the 1994 surgery, as discussed above.  Moreover, VA treatment records dated after the 1994 surgery indicate that the tooth was, in fact, chipped during the administration of anesthesia during the 1994 surgery.  For these reasons, the Board finds that there is additional disability that was actually caused by VA treatment in 1994.  

Next, the Board finds that evidence is at least in equipoise as to whether the permanent damage to the tooth was proximately caused by an event that was not reasonably foreseeable.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.  As discussed above, the 1994 consent form did not list the specific risks of the surgery; rather, it merely stated that the Veteran was made aware of the risks of surgery; therefore, based on the consent form, it would be mere speculation to find that the Veteran was informed that a chipped tooth was a risk of the 1994 surgery performed by VA.  Thus, the Board finds that the evidence is at least in equipoise as to whether the  permanent damage to tooth number ten was proximately caused by an event not reasonably foreseeable.  See 38 C.F.R. § 3.361(d)(2).  Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for compensation benefits for additional disability of a chipped tooth, under the provisions of 38 U.S.C.A. § 1151, are met.  38 U.S.C.A.  § 5107(b); 38 C.F.R. § 3.102.

Disability Rating Criteria

Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3. 

The Veteran's right great toe disability has been evaluated under Diagnostic Codes 5280 and 5283, found under 38 C.F.R. § 4.71a.  Under Diagnostic Code 5280, which addresses unilateral hallux valgus, a 10 percent evaluation is assigned when either the condition has been operated on with resection of the metatarsal head, or when the condition is severe and equivalent of amputation of the great toe.  Under Diagnostic Code 5283, which addresses malunion or nonunion of the tarsal or metatarsal bones, a 10 percent evaluation is assigned when the condition is moderate, a 20 percent evaluation is assigned when the condition is moderately severe, and a 30 percent evaluation is assigned when the condition is severe.  A note to Diagnostic Code 5283 indicates that a 40 percent evaluation should be assigned with actual loss of use of the foot.  38 C.F.R. § 4.71a.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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.  

The General Rating Formula for Diseases and Injuries of the Spine provides a 
10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 or more of the height.  A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 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 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a.

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are 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 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 (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted.

Note (4) instructs to round each range-of-motion measurement to the nearest five degrees.

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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.  38 C.F.R. § 4.71a. 

The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 
5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome.

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either 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.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 
6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 
12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.  Painful motion is considered limited motion at the point that the pain actually sets in.  See VAOPGCPREC 9-98. 

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  38 C.F.R. § 4.59.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

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."  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).  The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Disability Rating for Right Great Toe

The Veteran was granted service connection for residual of right great toe injury, moderate degenerative joint disease, in the December 2004 rating decision that is the subject of this appeal.  An initial noncompensable, or zero percent, rating was assigned, effective from December 12, 1997, under the provisions of 38 C.F.R. § 4.71a, DC 5280.  He filed a substantive appeal with regard to the initial noncompensable rating assigned.  The Board remanded the claim for further development in October 2007.  The development requested has been completed, and the claim is now appropriate for appellate review.  

During the course of this appeal, the RO granted increased ratings of 10 percent effective from October 1, 2003, and 30 percent effective from November 1, 2010.  In addition, the RO assigned a temporary 100 percent rating for periods of convalescence under 38 C.F.R. § 4.30 from May 23, 2003 to September 30, 2003, October 22, 2004 to April 30, 2005, September 30, 2005 to December 31, 2005, and April 7, 2010 to October 31, 2010.  Thus, the periods during which the Veteran has been granted a temporary 100 percent rating will not be considered, as no higher rating is available.    

The Veteran contends that his right great toe disability warrants a higher initial rating.  Specifically, he avers that he still has constant pain after multiple surgeries and now has nerve damage to the toe.  

Initial Compensable Rating from December 12, 1997 to May 22, 2003

After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial compensable rating for the service-connected right great toe disability for the rating period on appeal prior to May 22, 2003.  For the initial rating period prior to May 22, 2003, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected right great toe disability did not manifest unilateral hallux valgus that was either operated with resection of the metatarsal head or severe and equivalent to amputation of the great toe, as required for a compensable evaluation under Diagnostic Code 5280.  38 C.F.R. § 4.71a.    

An April 1997 VA treatment note indicates that the Veteran reported that his right great toe tingled when he walked on pebbles or stone, and that this sometimes also happened when he touched his toe with his fingers.  On physical examination, it was noted that the right great toe had callous formation on the medial aspect, and that pressure on the right great toe reproduced the pain and tingling.  The VA clinician noted that the Veteran had diabetes, assessed flat feet and right great toe callous formation, and referred the Veteran to see a podiatrist for orthotics.  

A May 1999 VA podiatry note indicates that examination of the right foot revealed intact sensation, palpable pulses, and no abnormal shape.  The podiatrist noted that there was decreased sensation in the right hallus.  However, the feet were described as looking good except for some flaking skin on the plantar surface.  

In February 2000, the Veteran reported a long history of right great toe pain with increasing recurrence of pain, worsened by foot use.  He denied edema or erythema of the toe.  On physical examination, there was no visualized edema or erythema, the metatarsophalangeal and proximal interphalangeal joint on the big toe were tender to palpation, and there was no effusion.  Range of motion was mildly restricted, and no hallux valgus deformity was seen.  

A December 2000 VA treatment note, however, indicates that there was a slight bilateral toe deformity.  There was callous formation over the right medial hallus, but there were good pulses and sensation was eight out of eight.  

A November 2002 VA treatment note indicates that the Veteran had traumatic degenerative joint disease of both first metatarsophalangeal joints.  There was severe limitation of dorsiflexion of both the first metatarsophalangeal joints with pain.  Light touch sensation was decreased under the right great toe.  The Veteran reported symptoms of paresthesias and distal anesthesias of both feet.  No deformity was observed.  

A February 2003 VA treatment note indicates that hallux rigidus was present, and there was pain at the metatarsophalangeal joints bilaterally with forced dorsiflexion.  Sensation to light touch was decreased globally.  An X-ray study showed osteophytes at the metatarsophalangeal joint, joint space narrowing, and sclerosis.  

The Veteran underwent surgery consisting of bilateral first metatarsophalangeal chelectomies on May 22, 2003, the effective date of the temporary 100 percent rating.  

Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial compensable rating for the right great toe disability is not warranted for any part of the initial rating period prior to May 22, 2003, as the requirements of unilateral hallus valgus that was either severe or operated with resection of the metatarsal head have not been met or more nearly approximated at any time during the rating period on appeal prior to May 22, 2003.  38 C.F.R. § 4.71a, Diagnostic Code 5280.  The clinical examinations of the right toe as recorded in the VA treatment notes relevant to the period on appeal prior to May 22, 2003 indicate that hallux valgus was either not present at all, or was slight, at most, in severity.  Moreover, there is no evidence that the severity of the hallux valgus, if even present, was equivalent to amputation of the great toe, as at least some sensation remained intact in the right great toe.               

In reaching its finding that the evidence did not demonstrate unilateral hallus valgus that was either severe or operated with resection of the metatarsal head for any period prior to May 22, 2003, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that an initial compensable rating is not warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  Here, the Board notes the evidence of tenderness to palpation of the right great toe, the Veteran's statements that he had increasing recurrence of right great toe pain, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use.  See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in).  

In this case, the VA treatment notes indicate that a hallux valgus deformity was not observed, or that, if it was, it was only slight in severity.  Moreover, surgery was not performed until May 22, 2003.  Thus, even if the Veteran's pain is taken into consideration, the criteria for a compensable rating are not met.  

Based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial compensable evaluation are not met, as the criteria for a compensable rating - hallux valgus that is either operated on with resection of the metatarsal head or severe and equivalent to amputation of the great toe - are not demonstrated, even when taking into account additional loss of motion and pain due to DeLuca factors.  Hallux valgus was observed to be slight in severity, at worst.  For these reasons, the Board finds that an initial compensable disability rating is not warranted for any period prior to May 22, 2003.    

The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating.  Diagnostic Code 5283 is not applicable, as the evidence for the period prior to May 22, 2003 does not demonstrate malunion or nonunion of the tarsal or metatarsal bones.  Diagnostic Code 5281 is potentially applicable, since it addresses hallus rigidus, which was observed in February 2003.  However, a compensable rating is only warranted under Diagnostic Code 5281 when the hallux rigidus is severe in nature.  The evidence in this case does not demonstrate severe hallus rigidus.  Thus, it does not allow for a compensable evaluation.  Diagnostic Codes 5277 (weak foot), 5278 (claw foot), 5279 (metatarsalgia), and 5282 (hammer toe) are also inapplicable because the medical evidence does not support diagnoses of any of these disabilities.  There are no other potentially applicable codes available for consideration.  

For these reasons, the Board finds that the weight of the evidence is against a finding of an initial compensable evaluation for the right great toe disability for any period prior to May 22, 2003.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Rating in Excess of 10 Percent from October 1, 2003 to October 21, 2004, May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010

After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that the weight of the evidence is against the claim for a rating in excess of 10 percent for the service-connected right great toe disability for the rating period from October 1, 2003 to October 21, 2004.  However, resolving reasonable doubt in the Veteran's favor, the Board finds that a higher 30 percent rating is warranted for the rating period on appeal from May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010. 

A March 2004 VA treatment note indicates that the Veteran reported that the right great toe was painful and stiff.  On physical examination, the right hallux had 25 degrees of dorsiflexion and 10 degrees of plantar flexion.  There was a notably large interphalangeal joint that was tender and had limited flexion.  X-rays showed a right hallux Moberg osteotomy that was fully healed, with lateral deviation of the hallux proximal phalanx and advanced osteoarthritis of the interphalangeal joint.  The VA clinician opined that the Veteran may need a fusion of the interphalangeal joint.  

In May 2004, it was decided that the Veteran, who was noted to have significant pain and limitation of activity, would undergo an excisional arthroplasty of the metatarsophalangeal joint, and that, if the interphalangeal joint continued to be symptomatic, a fusion would also be conducted in a staged procedure.  The VA clinician noted that the osteoarthritis appeared to be traumatic in origin and was related to his in-service injury.

The Veteran was afforded a VA examination in September 2004.  He reported pain and stiffness, even at rest.  While standing or walking, he stated that he had pain, weakness, swelling, and fatigue.  The Veteran also stated that the right big toe did not bend properly.  On physical examination, there was tenderness and hallux valgus, with a slight degree of angulation and no resection of the metatarsal head present.  The VA examiner noted that the Veteran had limitations with standing and walking, and that his symptoms and pain were not relieved by corrective shoe wear.  An X-ray study revealed moderate degenerative joint disease at the first metatarsophalangeal joint without active erosions, mild degenerative joint disease at the first through fifth distal interphalangeal joints, and postoperative changes at the base of the first proximal phalanx with well-seated hardware.   

The Veteran underwent a right great toe fusion on October 22, 2004, from which time he was assigned a 100 percent evaluation until May 1, 2005.  A post-operative visit in December 2004 revealed that one of the proximal screws broke, so his recovery was prolonged.  

In May 2005, the Veteran was seen for a suspected non-union of the first metatarsophalangeal joint of the right foot.  X-ray studies from March 2005 were reviewed and showed that two screws were broken.  The VA clinician assessed non-union of the first metatarsophalangeal joint of the right foot status post two previous fusion attempts.  Future surgery was discussed, but delayed as the Veteran was going out of town.  

In September 2005, the Veteran underwent another right metatarsophalangeal great toe fusion, from which time he was assigned a temporary 100 percent rating until January 1, 2006.  

X-ray studies of the right foot from January, March, and June 2006 showed a stable first metatarsophalangeal fusion.  At a March 2006 post-operative visit, the Veteran reported that he was improved, although he continued to experience pain.  On physical examination, there was decreased swelling and tenderness over the fusion site.  

A September 2006 VA treatment note indicates that insidious onset of swelling of the right great toe began in June 2006 without trauma.  However, it completely resolved.  The Veteran denied any mid or forefoot swelling.  On physical examination, there were no signs of bony prominence, ulceration, or swelling.  There was no tenderness over the first metatarsophalangeal joint.  There was normal dorsal sensation, but diminished plantar sensation.  The VA clinician assessed status post bilateral first metatarsophalangeal arthrodesis, as well as diabetes with mild neuropathy.  

In July 2008, the Veteran reported pain that was worse after ambulation.  On physical examination, the right interphalangeal joint and first metatarsophalangeal joint were nontender.  The VA clinician recommended accommodative shoe gear.  

A January 2010 VA treatment note indicates that the internal hardware became compromised with prominent screw heads.  There was absent motion at the first metatarsophalangeal joint with palpable internal hardware dorsally.  A March 2010 X-ray study revealed a prominent screw head with two compromised broken screws along the first metatarsophalangeal joint.  

The Veteran underwent hardware removal on April 7, 2010, and was assigned a temporary 100 percent rating from April 6, 2010 to November 1, 2010.  

Based upon these findings and the lay evidence of record, the Board finds the assignment of a rating in excess of 10 percent for the right great toe disability is not warranted for any part of the rating period on appeal from October 1, 2003 to October 21, 2004.  A 10 percent rating is the highest available under Diagnostic Code 5280.  Thus, the Board has considered whether any alternative Diagnostic Codes would allow for a rating in excess of 10 percent for the rating period from October 1, 2003 to October 21, 2004.  Under Diagnostic Code 5283, which addresses malunion or nonunion of the tarsal or metatarsal bones, 10, 20, and 30 percent ratings are assigned when such condition is moderate, moderately severe, or severe in nature, respectively.  However, the evidence from October 1, 2003 to October 21, 2004 does not demonstrate either malunion or nonunion of the tarsal or metatarsal bones, as shown by the September 2004 X-ray study.  Thus, Diagnostic Code 5283 is not applicable.  

Diagnostic Codes 5277 (weak foot), 5278 (claw foot), and 5284 (foot injuries) are also inapplicable because the medical evidence does not support diagnoses of any of these disabilities.  Moreover, Diagnostic Codes 5279 (metatarsalgia), 5181 (hallux rigidus), and 5282 (hammer toe) do not allow for ratings higher than 10 percent.  There are no other potentially applicable codes available for consideration.    

As above, in reaching its finding that the evidence did not demonstrate the criteria necessary for a rating higher than 10 percent for the period from October 1, 2003 to October 21, 2004, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that an initial compensable rating is not warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  Here, the Board notes the Veteran's report of right great toe pain and stiffness, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use.  See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in).  

In this case, the September 2004 VA examiner noted that there was no resection of the metatarsal head, which is one of the criterion for the assigned 10 percent rating under Diagnostic Code 5280.  Thus, as the criteria for the 10 percent rating assigned from October 1, 2003 to October 21, 2004 are not even demonstrated by the evidence, the 10 percent rating takes the Veteran's pain into consideration, and a rating in excess of 10 percent is not warranted for the period from October 1, 2003 to October 21, 2004.  

For these reasons, the Board finds that the weight of the evidence is against a finding of an evaluation in excess of 10 percent for the right great toe disability for any part of the period from October 1, 2003 to October 21, 2004.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

However, resolving reasonable doubt in favor of the Veteran, the Board finds that a higher 30 percent rating is warranted for the rating period from May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010, as the May 2005 VA treatment records demonstrate nonunion of the first metatarsal bone (at the distal end), a condition that is address by Diagnostic Code 5283.  

As noted above, 10, 20, and 30 percent ratings are assigned under Diagnostic Code 5283 when the malunion or nonunion is moderate, moderately severe, or severe in nature, respectively.  

In this regard, the Board notes the Veteran's complaints of ongoing pain in March 2006 and July 2008, as well as the absence of motion of the metatarsophalangeal joint noted in January 2010.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  Because the Veteran has a nonunion, as opposed to malunion, of the metatarsal bone, and taking his complaints of pain into consideration, the Board resolves reasonable doubt in his favor and finds that the nonunion more nearly approximates a severe nonunion, and thus warrants a 30 percent rating for the period from May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.     

Rating in Excess of 30 Percent from November 1, 2010

After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for a rating in excess of 30 percent for the service-connected right great toe disability for the rating period on appeal from November 1, 2010, forward.  For the rating period from November 1, 2010, forward, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected right great toe disability did not manifest actual loss of use of the foot, as required for an evaluation in excess of 30 percent under Diagnostic Codes 5283 and 5284.  38 C.F.R. § 4.71a.    

A December 2010 VA treatment note indicates that the Veteran reported pain along the first metatarsal with prolonged walking.  A palpable prominence was noted on the dorsal medial side of the first metatarsal, which the VA clinician believed to be a possible screw or other hardware.  

The Veteran was afforded a VA examination in May 2011.  He reported weakness, stiffness, heat, lack of endurance, deformity, and pain.  He denied swelling, redness, giving way, locking, fatigability, tenderness, drainage, effusion, subluxation, or dislocation.  He stated that he experienced flare-ups of pain as often as several times per day, and each lasted for two or more hours.  On a scale of one to ten, he rated the pain during flare-ups as an eight, and reported that they were precipitated by physical activity.  During flare-ups, he stated he was unable to turn his foot or bend his big toe, and had difficulty standing or walking.  

On physical examination in May 2011, there was painful motion and tenderness, and no active motion in the metatarsophalangeal joint of the right great toe.  Palpation of the plantar surface of the right foot revealed extreme tenderness.  There was a slight degree of valgus present, which could be corrected by manipulation.  There was deformity of the forepart of the foot abducted and whole foot everted.  No hammer toes were found on examination, and metatarsalgia was not present.  There was no hallux valgus or hallux rigidus present.  The VA examiner assessed status post crush injury to the right great toe and multiple reconstructive surgeries with residual ankylosis and scars, with no active range of motion and severe pain.  The VA examiner further noted that the Veteran would be unable to walk four blocks without having pain in his toes.    

Based upon these findings and the lay evidence of record, the Board finds the assignment of a rating in excess of 30 percent for the right great toe disability is not warranted for any part of the rating period from November 1, 2010, forward, as the requirements of actual loss of use of the foot have not been met or more nearly approximated at any time during the rating period on appeal from November 1, 2010, forward.  38 C.F.R. § 4.71a, Diagnostic Codes 5283, 5284.  The clinical examinations of the right toe as recorded in the VA treatment notes and VA examination relevant to the period on appeal from November 1, 2010 indicate that, while the Veteran had frequent and severe toe pain, he had not lost all use of his foot.                 

In reaching its finding that the evidence did not demonstrate loss of use of the foot for any period from November 1, 2010, forward, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 30 percent is not warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  Here, the Board notes the Veteran's report of flare-ups of pain multiple times per day, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use.  See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in).  In this case, however, the 2011 VA examiner indicated that the Veteran was still able to walk on the right foot.  Thus, even if the Veteran's pain is taken into consideration, the criteria for rating in excess of 30 percent are not met.  

Based on the above findings, the preponderance of the evidence demonstrates the criteria for an evaluation in excess of 30 percent are not met, as the criteria for a 40 percent rating under Diagnostic Codes 5283 and 5284 - actual loss of use of the foot - are not demonstrated, even when taking into account additional loss of motion and pain due to DeLuca factors.  For these reasons, the Board finds that a disability rating in excess of 30 percent is not warranted for any period from November 1, 2010, forward.    

The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating.  However, the only other Diagnostic Codes that allow for an evaluation in excess of 30 percent are Diagnostic Codes 5276 (acquired flatfoot) and 5278 (claw foot); neither of these Diagnostic Codes is applicable, because the medical evidence does not demonstrate that these conditions have been diagnosed.  There are no other potentially applicable codes available for consideration that would allow for a rating in excess of 30 percent.  

For these reasons, the Board finds that the weight of the evidence is against a finding of an evaluation in excess of 30 percent for the right great toe disability for any period from November 1, 2010, forward.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Disability Rating for Lumbosacral Strain

The Veteran is in receipt of a 20 percent rating for service-connected lumbosacral strain for the entire rating period on appeal, under the provisions of 38 C.F.R. § 4.71a, DC 5237.  He filed a claim for a higher rating in April 2008, and the RO denied the claim in the June 2009 rating decision that is the subject of this appeal.  

The Veteran contends that his lumbosacral spine disability warrants an increased rating.  Specifically, he avers that there is no treatment available to him, including surgery, that would relieve his back pain.  He states that he uses a TENS unit and a brace, but that these items do not relieve his pain.    

After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an increased evaluation in excess of 20 percent for service-connected lumbosacral strain for the entire rating period on appeal.  For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected lumbosacral spine disability did not manifest forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, as required for an evaluation in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 4 weeks in duration, for an evaluation in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.71a.    

An August 2007 X-ray study of the lumbar spine was normal other than minimal degenerative anterior spurs, with no evidence of spondylolysis or spondylolisthesis.  A November 2007 VA treatment note indicates that the Veteran continued to have daily low back pain, even after administration of epidural steroid injections in 2005 and 2006 and use of a TENS unit.  

A June 2008 VA treatment note indicates that the Veteran reported recurrent flare-ups of low back pain with some radiation down the leg to his toes, with no weakness or paresthesias.  He stated that he worked as a security guard and walked a lot, and that he usually got a steroid injection every six months.  On physical examination, straight leg raising produced radicular symptoms.  Deep tendon reflexes were 0-1/4 at the right knee and ankle and 1-2/4 on the left.  The VA clinician prescribed a steroid dose pack.  

In July 2008, the Veteran reported mid-back pain varying on a scale from 0 to 10 in severity with occasional right leg pain with numbness.  He stated that the pain was aggravated by walking up stairs, sitting on his wallet, and walking at work.  On physical examination, range of motion was decreased in all directions, and there was guarding due to pain.  The Veteran could only reach to his knees with his hands with forward lumbosacral flexion.  The VA clinician instructed the Veteran in exercises to perform at home.  

A September 2008 X-ray study of the lumbar spine showed moderate lower lumbar spondylosis, moderate bilateral foraminal stenosis at L5-S1, and a small central disc protrusion at L4-L5.  An MRI conducted two weeks later showed minimal anterior marginal spurs but was otherwise normal.

 The Veteran was afforded a VA examination in January 2009.  He reported that the shots he received helped to alleviate his pain, and that he infrequently used a TENS unit.  He said his response to treatment was fair.  He denied fatigue, decreased motion, and weakness, but reported stiffness, spasms, and pain.  He stated that the pain started in his neck and went down to his low back, and usually began when driving a long distance.  He said the pain was moderate in severity, lasted for one to two days, and occurred weekly to monthly.  He reported radiation of the pain to the groin.  He denied any flare-ups of pain.  He denied incapacitating episodes, stated he was able to walk one to three miles, and did not use any assistive devices for walking.  

On physical examination in January 2009, the Veteran's gait was described as abnormal because he favored his right knee.  There was no scoliosis, reverse lordosis, or ankylosis of the thoracolumbar spine.  There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness.  Muscle spasm, tenderness, or guarding was not severe enough to produce an abnormal gait or spinal contour.  Motor and sensory examinations were normal.  Flexion was to 85 degrees, extension to 20 degrees, left lateral flexion to 25 degrees, left lateral rotation to 25 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 20 degrees.  There was objective evidence of pain on active range of motion, including following repetitive motion, but no additional limitations following three repetitions of motion.  The VA examiner assessed moderate degenerative disc disease at L4-S1 and opined that the disability would have significant effects on the Veteran's occupation in the form of problems lifting and carrying and pain.  Moreover, the lumbosacral spine disability would prevent participation in sports, have moderate effects on chores and traveling, mild effects on shopping, exercise, and recreation, and no effects on feeding, bathing, dressing, toileting, and grooming.  

Based upon these findings and the lay evidence of record, the Board finds the assignment of an increased rating in excess of 20 percent for a lumbosacral spine disability is not warranted for any period, as the requirements of forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome of at least 4 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal.  38 C.F.R. § 4.71a, DCs 5235-5243.  At the January 2009 VA examination, flexion of the thoracolumbar spine was to 85 degrees, even taking pain into account, which falls on the high end of the criteria for an even lower 10 percent rating.  The January 2009 VA examiner noted that ankylosis, both favorable and unfavorable, was absent, and the Veteran denied any incapacitating episodes at that examination.            

In reaching its finding that the evidence did not demonstrate flexion 30 degrees or less or favorable ankylosis of the thoracolumbar spine for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 20 percent is not warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  Here, the Board notes the objective evidence of pain on range of motion testing and following repetition at the 2009 VA examination, the Veteran's current statements that his pain is not relieved by any treatment, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use.  See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in).  

In this case, the 2009 VA examiner noted objective evidence of pain on active range of motion testing and following repetitive motion.  However, the VA examiner also stated that there was no additional limitation following repetition.  Thus, even if the pain on flexion is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category.  Indeed, the flexion measurement of 85 degrees recorded at the 2009 VA examination prior to and following repetition does not even meet the minimum criteria for the currently assigned 20 percent rating.      

The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board.  Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations.  Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion to 30 degrees to less or favorable ankylosis of the entire thoracolumbar spine) such as to enable a finding that the disability picture more nearly approximates the next-higher, 40 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine.

As discussed above, the criteria for the currently-assigned 20 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 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.  Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an evaluation higher than 20 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 40 percent, rating category - flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine - even when taking into account additional loss of motion due to DeLuca factors.  Even with such factors, the flexion measurement of 85 degrees does not even meet the minimum criteria for the currently assigned 20 percent rating, and the evidence does not show either favorable or unfavorable ankylosis of the thoracolumbar spine.  For these reasons, the Board finds that a disability rating in excess of 20 percent is not warranted for any period.    

Next, the Board has considered whether a rating in excess of 20 percent is warranted under Diagnostic Code 5243 based on incapacitating episodes.  As previously mentioned, Diagnostic Code 5243 deals with IVDS, which can include degenerative disc disease.  However, in order to meet the criteria for a compensable rating under this diagnostic code, the evidence must show that a physician ordered bed rest to treat the disorder.  In this case, the Veteran denied incapacitating episodes at the 2009 VA examination, and there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243.    

The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating.  In this regard, the RO rated the Veteran's low back disability under Diagnostic Code 5237, which addresses lumbosacral strain.  Diagnostic Code 5242, which addresses degenerative arthritis of the spine, is also potentially applicable.  Disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above.  However, Diagnostic Code 5242 is related to DC 5003, which also addresses degenerative arthritis.  

In this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim.  Thus, it does not allow for a higher evaluation.  There are no other applicable codes available for consideration.  

The Board has also contemplated whether any separate evaluations are applicable here for additional disability or neurological disorders associated with the service-connected back disability.  The Veteran reported pain radiating from his low back down his leg.  However, at the 2009 VA examination, sensory and reflex examination of the lower extremities was normal, and the VA examiner did not diagnose radiculopathy or any other neurological abnormality.  Moreover, there is no indication that an EMG study has been performed or that a formal diagnosis of radiculopathy has been made.  Therefore, a separate rating for neurological symptoms is not warranted.      

For these reasons, the Board finds that the weight of the evidence is against a finding of an evaluation in excess of 20 percent for a lumbosacral strain for any period.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.


Extraschedular Consideration

In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's right great toe and lumbosacral spine disabilities.  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  
38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

Turning to the first step of the extraschedular analysis, the Veteran's right great toe disability has manifested in nonunion of the metatarsal bone, deformity, pain, loss of motion, and stiffness.  The schedular criteria for rating the great toe disability (38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5283) specifically provide for ratings based on the presence of nonunion of the bones of the foot; limitations of motion (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca); other clinical findings such as deformity.  In this case, comparing the Veteran's disability level and symptomatology of the right great toe to the rating schedule, the degree of disability of the right great toe throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.  

Next, the Veteran's lumbosacral spine disability has manifested in arthritis, disc disease, and painful movement.  The schedular criteria for rating the lumbar spine disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes.  In this case, comparing the Veteran's disability level and symptomatology of the lumbosacral spine to the rating schedule, the degree of disability of the lumbosacral spine throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  
38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life.  In the absence of exceptional factors associated with the right great toe and lumbosacral spine disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; 
(2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits.

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 
580 F.3d 1270 (2009).  

Given the full grant of benefits sought on appeal with regard to the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability of a chipped tooth, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary with regard to those issues.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

In addition, because the issue of entitlement to a higher initial rating for the right great toe disability arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a right great toe disability, no additional notice is required.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).

With regard to the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatoid arthritis and entitlement to an increased rating for a lumbosacral strain, in a timely October 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain.  The letter advised the Veteran that new and material evidence would be necessary to reopen the rheumatoid arthritis claim, and provided him with the reason for the previous denial of the rheumatoid arthritis claim.  The Veteran was also informed of the requirements needed to establish an increased evaluation for a lumbosacral strain.  The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  It also included the specific rating criteria that would be used to evaluate the lumbosacral strain disability.  In addition, the letter described how VA determines disability ratings and effective dates.  

In April 2010, the Board remanded the issues of whether new and material evidence had been received to reopen claims of entitlement to service connection for right shoulder, neck, and left index finger disabilities for further development.  Specifically, because the Veteran filed his request to reopen these claims in December 1997, prior to revision of the regulations regarding new and material evidence, the Board stated that the Veteran had not received proper notice regarding new and material evidence, and that corrective notice should be sent to him that included the definition of new and material evidence in effect prior to the August 29, 2001 revisions to 38 C.F.R. § 3.159.  

Subsequent to the Board's remand, a letter was sent to the Veteran in April 2010 that included provisions regarding new and material evidence; however, the letter discussed only the current definition of new and material evidence, and not the definition in effect prior to August 29, 2001.  

While the Board notes that the notice provided to the Veteran in April 2010 is somewhat flawed, the Veteran understands the standard under which the claims will be reviewed.  The delays in this case have been significant.  The September 2008 Joint Motion requested the Board to consider whether the Veteran was "properly informed" of the definition of new and material evidence under the old standard, notwithstanding the fact that the Board had utilized the correct old standard in evaluating his case in October 2007, more than five years ago.  The use of a standard that has not been utilized by VA in over ten years caused legitimate confusion at the Regional Office level.  

Notwithstanding the mistake cited above, the Board finds no prejudice to the Veteran in proceeding with this case.  The history of this case clearly indicates the Veteran understands the standard that will be used.  The Veteran was provided the correct standard in the Board's last decision and within the JMR.  

In this regard, the Board is aware of the JMR and the fact that the Federal Circuit had held previously that any error in VCAA notice should be presumed prejudicial and VA must bear the burden of proving that such an error did not cause harm.  Sanders v. Nicholson, 487 F.3d 881 (2007).  The Supreme Court, however, reversed the Federal Circuit's decision in Sanders, finding it unlawful in light of 38 U.S.C.A.  § 7261(b)(2) which provides that, in conducting review of decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court essentially held in Sanders that - except in cases where VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - (1) the burden of proving harmful error must rest with the party raising the issue; (2) the Federal Circuit's presumption of prejudicial error in Sanders imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process; and (3) determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  The appellant has not contended that any prejudicial notice error occurred in this case.  Further, it appears that the 2008 JMR was based on the 2007 findings of the Federal Circuit.  The Supreme Court decision was issued in 2009. 

Accordingly, in light of the Supreme Court's recent decision in Sanders, the Board finds that any failure to satisfy the duty to notify is not prejudicial. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

While the Board regrets the mistake made by the regional office, the Veteran's request to advance this case due to hardship only supports a finding that to delay the full adjudication of the Veteran's case again for several years would be unconscionable.

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, VA examinations with regard to the right great toe and lumbosacral spine claims, and the Veteran's statements.  

The Board acknowledges that no VA examination was obtained with regard to the question of whether the Veteran has rheumatoid arthritis and disabilities of the right shoulder, neck, and left index finger that are related to active service; however, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened.  38 C.F.R. § 3.159(c)(4)(iii).

The Veteran has been afforded an adequate examination on the issues of rating the right great toe and lumbosacral spine disabilities.  VA provided the Veteran with examinations in January 2009 and May 2011 with regard to the spine and toe, respectively.  The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include review of an X-ray studies.  Conclusions reached and diagnoses given were consistent with the examination reports, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability.  Therefore, the Veteran has been afforded adequate examinations on the issues of rating the great toe and lumbosacral spine disabilities decided herein.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board notes that the May 2011 VA examination of the right great toe substantially complies with the October 2007 remand directives of the Board.  

Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for rheumatoid arthritis is denied.

New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a right shoulder disability is denied.

New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a neck disability is denied.

New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a left index finger disability is denied.

Service connection for a psychiatric disorder, to include depression, bipolar disorder, and PTSD, is granted.

Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of a chipped tooth, as caused by treatment received at the Durham VA Medical Center in July 1994, are granted.

An initial compensable evaluation for residual of right great toe injury, moderate degenerative joint disease, status post arthrodesis, is denied for the period from December 12, 1997 to May 22, 2003.

An increased evaluation in excess of 10 percent for residual of right great toe injury, moderate degenerative joint disease, status post arthrodesis, is denied for the period from October 1, 2003 to October 21, 2004.  

An increased evaluation of 30 percent for residual of right great toe injury, moderate degenerative joint disease, status post arthrodesis, is granted for the periods from May 1, 2005 to September 29, 2005, and January 1, 2006 to April 6, 2010.  

An increased evaluation in excess of 30 percent for residual of right great toe injury, moderate degenerative joint disease, status post arthrodesis, is denied from November 1, 2010, forward.

An increased evaluation in excess of 20 percent for a lumbosacral strain is denied.  


REMAND

In May 2010, the Veteran filed a claim for an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010, related to his service-connected right great toe injury, moderate degenerative joint disease, status post arthrodesis.  The RO denied the extension in a March 2011 rating decision.  In April 2011, the Veteran submitted a notice of disagreement (NOD) with the denial of the extension of temporary total disability benefits.  However, the Veteran has not been furnished a Statement of the Case (SOC) which addresses the issue of entitlement to an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010.  In such cases, under judicial precedent, the appellate process was initiated by the NOD, and the appellant is entitled to an SOC on the issue.  See Manlincon v. West, 12 Vet. App. 238 (1999).  Accordingly, the issue of entitlement to an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010 must be remanded to the RO via the AMC for additional action.

Accordingly, the issue of entitlement to an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010 is REMANDED for the following action:

After conducting any necessary development, provide the Veteran with a Statement of the Case addressing the issue of entitlement to an extension of temporary total disability benefits for a period of convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2010.  He should be advised that a timely substantive appeal will be necessary to perfect the appeal to the Board.  The RO should also ensure that all VCAA notice and assistance requirements are satisfied.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs