Citation Nr: 1305754	
Decision Date: 02/19/13    Archive Date: 02/27/13

DOCKET NO.  94-45 330	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for residuals of a left shoulder injury. 

2.  Entitlement to service connection for hypertension. 

3.  Entitlement to service connection for a bone spur, left heel.

4.  Entitlement to service connection for residuals of a left knee injury. 

5.  Entitlement to service connection for residuals of a right knee injury. 

6.  Entitlement to service connection for a chronic lung condition (claimed as bronchitis), to include as secondary to exposure to gas chamber toxins.

7.  Entitlement to a compensable initial evaluation for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine, prior to August 18, 2000.

8.  Entitlement to a compensable initial evaluation for DJD and DDD of the lumbar spine, from August 18, 2000 to April 28, 2009.

9.  Entitlement to a compensable initial evaluation for DJD and DDD of the lumbar spine, from April 29, 2009.

10.  Entitlement to a compensable initial evaluation for a bone spur of the right foot. 

11.  Entitlement to a compensable initial evaluation for arthritis of the right great toe. 

12.  Entitlement to a compensable initial evaluation for arthritis of the left great toe. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1989 to December 1992. 

These matters come before the Board of Veterans' Appeals  (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The chronic lung condition claim has been recharacterized as noted on the title page to better reflect the Veteran's contentions, while the great toe claims have been recharacterized to better reflect the medical evidence

As the Veteran is currently living abroad, the Pittsburgh, Pennsylvania, RO has jurisdiction over this case.  

A hearing was held before the undersigned Veterans Law Judge in January 2001.  A transcript of the hearing is associated with the claims folder. 
 
In September 2001, the Board remanded these claims for further development, to include obtaining treatment records and scheduling an VA examination.  The significant delay in readjudication was due in large part to the Veteran's frequent relocation as a civilian employee to various military bases in different countries.  In June 2010, the Board remanded the case so that another examination could be scheduled.  The requested records have been obtained and associated with the claims file.  Further, as discussed in detail below, the Veteran was scheduled for a fee basis VA examination in January 2012, but failed to report for the examination.  Accordingly, the Board finds that its remand directives have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  Following the Board's June 2010 Remand, the Veteran failed, without good cause or adequate reason, to report for a fee basis VA examination in January 2012 that was scheduled to assess his service connection and initial rating claims.

2.  Resolving all reasonable doubt in the Veteran's favor, hypertension had its onset in service.

3.  The evidence of record reflects that the Veteran does not have a chronic lung condition.

4.  The evidence of record reflects that the Veteran does not have a bone spur in the left heel.

5.  The evidence of record reflects that the Veteran does not have residuals of a left knee injury.

6.  The evidence of record reflects that the Veteran does not have residuals of a right knee injury.

7.  Resolving all doubt in the Veteran's favor, the probative medical evidence of record shows residuals of a left shoulder disability that was incurred in service.

8.  Prior to August 18, 2000, DJD and DDD of the lumbar spine was manifested by slight limitation of flexion of the lumbar spine, measured at 80 degrees; there were no incapacitating episodes or mild disc disease.

9.  From August 18, 2000 to April 28, 2009, DJD and DDD of the lumbar spine was manifested by forward flexion most severely limited to 60 degrees and functional impairment due to pain with occasional radiation to the right leg; there are no findings of favorable or unfavorable ankylosis of any part of the spine.

10.  From April 29, 2009, DJD and DDD of the lumbar spine has been manifested by full range of motion; there are no incapacitating episodes.

11.  The Veteran's right heel spur is manifested by subjective complaints of intermittent pain, but does not cause limitation of motion and does not result in moderate foot disability. 

12.  Arthritis of the right great toe is manifested by less than a moderate disability; it is demonstrated by painful motion and there is X-ray evidence of degenerative joint disease of the first metatarsophalangeal joint of the right foot. 

13.  Arthritis of the left great toe is manifested by less than a moderate disability; it is demonstrated by painful motion and there is X-ray evidence of degenerative joint disease of the first metatarsophalangeal joint of the left foot. 


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, his hypertension was incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 

2.  A chronic lung condition was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012).

3.  A left heel bone spur was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012).

4.  Residuals of a left knee injury were not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.303 (2012).

5.  Residuals of a right knee injury were not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.303 (2012).

6.  Resolving all reasonable doubt in the Veteran's favor, residuals of a left shoulder injury was incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 

7.  The criteria for an increased, 10 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, prior to August 18, 2000, are met.  38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.321, 4.1 - 4.7, 4.10, 4.40, 4.45,  4.59; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5292, 5293 (2002); 38 C.F.R. 
§ 4.71a, DCs 5292, 5293 (2003).

8.  The criteria for an increased, 20 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, from August 18, 2000 to April 28, 2009, are met.  38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1 - 4.7, 4.10, 4.40, 4.45, 4.59; 38 C.F.R. § 4.71a, DCs 5292, 5293 (2002); 38 C.F.R. 
§ 4.71a, DCs 5292, 5293 (2003); 38 C.F.R. § 4.71a, DC 5243 (2012).

9.  The criteria for an increased, 10 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, from April 29, 2009 are met.  38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1 - 4.7, 4.10, 4.40, 4.45, 4.59; 38 C.F.R. § 4.71a, DCs 5292, 5293 (2002); 38 C.F.R. § 4.71a, DCs 5292, 5293 (2003); 38 C.F.R. § 4.71a, DC 5243 (2012).

10.  The criteria for an initial compensable rating for a heel spur, left foot, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1 - 4.7, 4.10, 4.40, 4.59, 4.71a, DCs 5024, 5284 (2012). 

11.  The criteria for an initial rating of 10 percent for arthritis of the right great toe have been met.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1 - 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5283, 5284 (2012). 

12.  The criteria for an initial rating of 10 percent for arthritis of the left great toe have been met.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1 - 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5283, 5284 (2012). 





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Initially, with regard to the claims for service connection for hypertension and residuals of a left shoulder injury, and as discussed in further detail in the following decision, the Board is granting these aspects of the Veteran's appeal.  Thus, no further discussion of VA's duties to notify and to assist him with these claims is necessary.  

An October 2001 letter complied with VA's duty to notify the Veteran with regards to the issues of service connection for residuals of a left shoulder injury, bone spur of the left heel, residuals of a left knee injury, and residuals of a right knee injury.  Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  A March 2006 letter notified the Veteran of the criteria for assigning a disability rating and an effective date with respect to all pending service connection claims.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Although the October 2001 and March 2006 letters were not sent prior to initial adjudication, this timing defect was not prejudicial to the Veteran, as the claims were readjudicated and additional supplemental statements of the case (SSOCs) were provided to the Veteran in June 2009 and July 2012.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006), aff'd by 257 Fed.Appx. 288 (2007).

The Board acknowledges that no VCAA notice was provided to the Veteran with respect to his chronic lung claim.  In this case, the Veteran has not alleged any prejudicial or harmful error in VCAA notice.  Moreover, the record reflects that the Veteran has been provided with an August 1994 statement of the case (SOC) and several SSOCs, the most recent of which was issued in July 2012, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision.  Thus, the Veteran was made aware of the evidence he needed to provide to substantiate his chronic lung condition claim.

Where service connection has been granted, as is the case here, that claim is substantiated.  No additional VCAA notice is required with respect to the downstream issue of the ratings assigned to the now service-connected disabilities. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The Board finds that all necessary development has been accomplished.  VA has obtained service treatment records (STRs), private treatment records, VA treatment records, and other federal records.  The Veteran has submitted private treatment records and statements in support of his claims.  He testified before the Board in a January 2001 hearing.  He has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  See 38 C.F.R. § 3.159 (c) (2).  

The Board notes that the second page is missing from both the March 1993 VA general examination report and the April 1993 VA orthopedic examination report.  The RO has attempted to obtain these missing pages.  Specifically, in August 1996, the RO requested copies of treatment records from the Orlando VAMC from December 1992 to the present, to include "copy of VA exams dated 3-24-93 for [General Medical Examination] and ortho from Orlando VAH.  Page 2 missing in file."  The Orlando VAMC submitted the requested treatment records, which included lab results from the March 1993 VA examination, but not the missing pages.  In view of the foregoing, the Board concludes that further efforts to locate the missing pages would be futile.  

The duty to assist also includes obtaining a medical examination or opinion when necessary to decide the claim.  In the September 2001 Remand, the Board determined that the August 2000 VA examinations were inadequate because they were not conducted with benefit of review of the claims file and because they did not contain etiology opinions with respect to the service connection claims.  The record shows that the RO subsequently undertook extensive efforts to attempt to locate the Veteran.  In the June 2010 Remand, the Board determined that the April 2009 fee basis VA examination was inadequate because it did not meet the requirements of the prior remand instructions.  Specifically, the Board found that (1) there was no discussion of DeLuca with respect to the orthopedic claims; (2) no range of motion testing was performed on the Veteran's toes or right foot; (3) no X-rays were taken; and (4) the examiner did not provide adequate nexus opinions.  

In October 2011, the Pittsburgh RO contacted the United States Embassy in London and requested that the required examination be scheduled.  The record reflects that the Veteran was scheduled for a fee basis VA examination in January 2012.  In a March 2012 email, an Embassy representative noted that the Veteran had failed to report for the examination and had not contacted the doctor.  

The Board acknowledges that there is no copy of the notice of this scheduled examination sent by the Embassy to the Veteran in the file.  However, there is a presumption of administrative regularity that government officials have properly discharged their official duties.  See, e.g., Mindenhall v. Brown, 7 Vet. App. 271 (1994).  Moreover, because the regular practices of VA do not include maintaining a hard copy of the Veteran's notice letter of a scheduled VA examination, the absence of any such copy from the claims file generally cannot be used as evidence to demonstrate that a notice was not mailed.  See Kyhn v. Shinseki, 24 Vet. App. 228 (2011).

The Board also acknowledges that an April 2012 letter to the Veteran contains the following statement:  "Based on the instructions from the Board of Veterans Appeals (BVA), we are ordering an examination for you."  However, it appears that this letter was sent in error.  As discussed above, the Veteran was scheduled for a fee basis VA examination in January 2012.  In addition, the Veteran was advised in the July 2012 SSOC that he had failed to report for his scheduled examination.  Furthermore, a July 2012 letter from the Veteran to the RO concerning his efforts to obtain medical records contained no mention of the January 2012 examination.  

The Board finds that the Veteran has not provided an explanation for his failure to report for the July 2012 examination.  Under such circumstances, where the Veteran failed without good cause to report for the fee basis VA examination, service connection and initial rating claims must be rated based on the evidence of record.  See 38 C.F.R. § 3.655(b).  For the above reasons, the Board finds that VA has discharged its duty to assist the Veteran in obtaining an examination.  See Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a one-way street).  The Board accordingly finds no reason to remand for further examination. 

Moreover, there was substantial compliance with the September 2001 and June 2010 remand directives.  Specifically, the Board directed the AOJ to obtain additional relevant treatment records from private providers, to include Dr. Perez Toro and the University of Puerto Rico, as well as the Industrial Hospital-Puerto Rico Medical Center.  The Board also instructed the AOJ to obtain treatment records from the San Juan VAMC. In a December 2004 letter, the RO requested names, addresses, and dates of treatment of private healthcare providers.  It also requested treatment records from the above-mentioned providers and attached the required release forms.  The RO obtained additional treatment records from the University of Puerto Rico and the San Juan VAMC in January 2001 and November 2001, respectively.  The claims file contains no treatment records from the private hospital in Puerto Rico in the claims file.  Nor does it contain treatment records from the Bronx VAMC, for which the Veteran submitted a VA Form 21-4138.  However, as the Board is herein granting the Veteran's claim for service connection for hypertension, there is no prejudice.

For these reasons, the Board finds that there was substantial compliance with the September 2001 and June 2010 remand directives.  Accordingly, no further remand is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998). 

II.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Certain chronic diseases, such as hypertension and arthritis, may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
A. Hypertension

The Veteran contends that his current hypertension was a result of exposure to gas chamber toxins while on active duty.

Pursuant to VA regulation, "the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm."  38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). 

An April 1989 enlistment examination that shows that the Veteran's blood pressure was 120/80.  

STRs show that in 1989, the Veteran's blood pressure readings ranged from 110/70 to 128/80.  In1990, his blood pressure readings ranged from 100/60 to 140/100.  In 1991, his blood pressure readings ranged from 100/60 to 140/80.  The Veteran's blood pressure was 134/78 in March 1992, 118/76 in May 1992, and 128/68 in July 1992.  In August 1992, the Veteran's blood pressure was 140/82, 142/80, and 140/84.  The assessment was borderline blood pressure.  The clinician noted that recent blood work failed to reveal evidence of diabetes mellitus or hypoglycemic episodes.

An August 1992 Medical Evaluation Board (MEB) examination shows that the Veteran's blood pressure was 140/82.  The clinician diagnosed borderline systolic pressure readings.  On the accompanying medical history report, the Veteran noted problems with frequent or severe headaches, as well as dizziness or fainting spells.

A January 1993 VA treatment record shows that the Veteran's blood pressure was 124/66 and 134/72.

The Veteran submitted to a VA general examination in March 1993, at which time he had blood pressure readings of 122/80, 112/72, and 112/70.  He complained of headaches.  The examiner noted that there were no other symptoms of dyspnea, orthopnea, angina pain, or palpitations.  He found no evidence of hypertension either by history or examination.  The Board notes that the second page of the report is missing.  

Post-service VA treatment records show that in 1993, the Veteran's blood pressure readings ranged from 105/78 to 134/82.  In February 1994, his blood pressure was 140/74.  In August 1995, his blood pressure was 140/80.  A March 1996 VA treatment record contains a blood pressure reading of 130/88.  In September 1996, the Veteran's blood pressure reading was 140/100; he was diagnosed with elevated blood pressure.  The Veteran's blood pressure reading was 130/90 in February 1997, and 120/70 in March 1998.

In August 2000, the Veteran submitted to a VA hypertension examination.  He stated that he had been diagnosed with hypertension eight years earlier at Gorgas Hospital in Panama while in active service.  At that time, treatment with diet and exercise was recommended.  He stated that his blood pressure varied between normal and elevated after discharge.  In 1995/1996, he reportedly became dizzy and nauseous at work and was taken to a hospital in Puerto Rico.  He was diagnosed with hypertension and given medication, but his blood pressure continued to fluctuate.  In 1997, he was diagnosed with diabetes mellitus, at which time his hypertensive medication was changed.  The Veteran reported that his hypertension has been under good control ever since.  A physical examination revealed blood pressure readings of 125/80, 130/82, and 130/80.  The examiner did not review the claims file, but diagnosed arterial hypertension.  No opinion with respect to nexus was provided.  There are no other medical opinions in this case that indicate whether current hypertension was incurred in service.

A January 2003 private treatment record shows that the Veteran gave a history of hypertension for more than 10 years.  In July 2003, his blood pressure reading was 140/79.  In January 2007, the Veterans hypertension was opined to be essential.   

The Veteran submitted to a fee-basis VA examination in April 2009.  He stated that he was diagnosed with hypertension in the late 1990's and reported symptoms of postural hypotension.  The examiner thoroughly reviewed the file and noted a finding of "hypertension" in the September 1996 VA treatment record.

During the January 2001 hearing, the Veteran stated that he was diagnosed with hypertension in service while stationed in Panama.  He testified that, post-discharge, a physician at the VAMC in Puerto Rico "wanted me to go to a medical evaluation to determine if the blood pressure had caused other conditions."  

The competent evidence of record in this matter shows that the Veteran has hypertension.  The Board has considered whether presumptive service connection for hypertension is warranted.  Under 38 C.F.R. § 3.309(a), hypertension is regarded as a chronic disease.  However, in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service.  See 38 C.F.R. § 3.307(a)(3).  As the competent evidence of record fails to establish hypertension within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied.

The Board notes that the blood pressure reading at the Veteran's separation falls just below the threshold to be considered hypertension by VA.  However, he has displayed continuity of symptomatology since his separation from service.  He has stated or testified that those examining him at separation informed him that he had high blood pressure.  He has also stated that he was diagnosed with hypertension in 1995 or 1996 at a hospital in Puerto Rico.  The Veteran is competent to relate this contemporaneous diagnosis, and the Board finds his statement to be credible.    

The Veteran has also described receiving near continuous treatment for high blood pressure since a few years after his separation from active service, and post-service treatment records document his complaints of and treatment for high blood pressure.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that his statements alone serve as the requisite evidence of a nexus between his current condition and his post-service continuity of symptomatology.  Accordingly, service connection for hypertension is granted.  In weighing the evidence of record, any doubt has been resolved in favor of the Veteran.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. 

B.  Chronic Lung Condition, Left Heel Spur, Knees

The Veteran contends that he has a chronic lung condition, to include bronchitis, which is directly related to service.  He maintains that he was hospitalized for 10 days in 1989 after being exposed to gas chamber toxins during basic training.  He reportedly had to repeat the gas chamber training and suffered an asthma attack during one of the trainings, after which he had a fever for 240 consecutive hours.  See December 2005 and April 2007 VA Form 21-4142.  

The Veteran contends that he currently suffers from left foot pain due to a bone spur in his heel that developed as a result of excessive marching while wearing boots during service.  The Board notes that the Veteran is service-connected for a bone spur in the right foot and arthritis of both big toes.

The Veteran also contends that service connection is warranted for residuals of left and right knee injuries.  Specifically, he maintains that he injured his knees in an in-service motorcycle accident.

STRs reveal a complaint of left foot Achilles tendon pain and blisters on the left ankle in August 1989.  The diagnoses included infected friction blister and cellulitis of the Achilles area.  

STRs also establish that the Veteran had pharyngitis for two weeks in 1989.  In September 1989, the Veteran was hospitalized for five days.  A chest X-ray, taken in order to rule out pneumonia, was normal.  The discharge note contains a diagnosis of upper respiratory syndrome, "probably viral."  October 1989 records show that the Veteran reported a "chest" complaint.  No diagnosis was provided.  He was also treated for a left foot problem.  There was full range of motion and no swelling, redness, or tenderness.  The assessment was overuse syndrome.  In November 1989, the Veteran continued to complain of foot pain.  The assessment was marching trauma.  In December 1989, he was diagnosed with plantar fasciitis/pes planus, hallux limitus of the left big toe, and dorsal bunions.  He received a limited duty profile.

The Veteran continued to complain of foot pain in April and June 1990.  He received a two-week profile for plantar fasciitis in May 1990.  In October 1990, the Veteran complained of a history of heel spurs.  No tenderness or deformity was noted.  With respect to a diagnosis, the clinician wrote "wants profile? arthritis."

The Veteran injured his left knee in a motorcycle accident in February 1991.  Upon physical examination of the left knee, there was slight swelling and tenderness and good range of motion.  The assessment was left knee pain.  The Veteran continued to complain of left knee pain upon follow-up two days later.  At that time, there was slight tenderness to palpation over the medial aspect of the knee and distal quads.  X-rays showed no fractures or dislocations.  The assessment was left knee contusion.  The Veteran received a light duty profile.  A treatment record dated later that month shows that there was tenderness to palpation over the inner knee.  The diagnosis was trauma to left knee with pain.

The Veteran continued to complain of left knee pain in March 1991.  An examination revealed mild tenderness to palpation over the medial joint line.  The assessment was "mild medial meniscus injury?" The Veteran received another light duty profile.

An April 1991 treatment record notes that the Veteran "has been seen time and again" for left knee pain.  Examination findings remained unchanged.  The clinician noted that there was an "extreme possibility of malingering."  The assessment was left knee pain - possible medial meniscal tear.  Treatment records dated later that month indicate the Veteran had full range of motion with no effusion and stable joint.  Diagnoses included "possible torn meniscus?" and "medial collateral ligament strain rule our cruciate rule out Munchhausen."  Physical therapy was recommended.

A May 1991 orthopedic note contains a diagnosis of "tendinitis v. bursitis or pes anserinus."

In July 1991, the Veteran reported a dull pain when doing any type of walking.  An examination was normal.  The assessment was left knee discomfort.  Later that month, the Veteran was diagnosed with left knee pain.  He was again referred to the orthopedic clinic where his condition was noted to be stable.

In February 1992, the Veteran gave a history of arthritis and bone spurs in his feet.  There was tenderness over both heels, but no bony deformity.  X-rays of the right foot revealed a small calcaneal spur and a spur at the insertion of the Achilles tendon.  The assessment was "by history arthritis and bone spurs feet."  No X-rays were taken of the left foot.  The clinician advised the Veteran to run at his own pace and to continue using heel cushions.  A limited duty profile was given because of chronic multiple complaints concerning his feet, ankles, knees, and back.

In March 1992, the Veteran received treatment for a swollen right knee.  The joint was noted to be "okay" upon examination.  The clinician noted that the Veteran apparently had a history of meniscal problems.  The assessment was right knee chronic problems (recurrent).  The Veteran was referred to the orthopedic clinic.  The consultation sheet contains a provisional diagnosis of tendonitis, right knee.

The Veteran continued to complain of heel pain in July 1992 and knee pain in August 1992.

The August 1992 MEB examination contains a normal clinical evaluation of the lungs and chest.  A chest X-ray was negative.  In the accompanying medical history report, the Veteran complained of a chronic cough.  He noted that he had been hospitalized with a lung infection during basic training.  The foot examination was abnormal, with the clinician noting tenderness to the left big toe with flexion and bilateral foot pain with pressure.  The Veteran reported a history of foot trouble on the accompanying medical history report.  The lower extremities examination was normal.  The Veteran reported a "trick" or locked knee on the accompanying medical history report.

A March 1993 VA examination report shows that the Veteran complained of an episode of bronchitis that began on December 1, 1992 and lasted "for 100 days."  The examiner noted that "the bout of respiratory infection began when [the Veteran] left Puerto Rico to return to Ft. Jackson for the discharge procedure."  The Veteran complained that he felt feverish and weak.  He reported a cough and some phlegm.  There were no symptoms suggestive of pleuritic chest pain.  Although the majority of his symptoms had subsided, he complained of very minor congestion of the nose and throat.  A chest X-ray was normal.  The diagnosis was "[p]robably an episode of acute upper respiratory infection which appears to have subsided."

An April 1993 VA orthopedic examination report shows that the Veteran gave a history of being diagnosed with bilateral heel spurs.  Heel cushions were ineffective.  Wearing sneakers helped.  He related that he had injured his left knee in a motorcycle accident, and that the knee "did not heal properly because the Army forced him to cancel physicians and physical therapy appointments and violated his physical profile."  He denied having any problems with his left knee, noting that he did not engage in much physical activity.  The Veteran's history also included right knee pain for one year, which he attributed to road marches while in the military.  He denied any swelling, buckling or locking of either knee.  He complained of right knee pain on running or jumping.  A physical examination of both knees was negative.  X-rays of the feet showed no evidence of heel spurs.  X-rays of both knees revealed "no [illegible] or joint abnormality."  

An August 2000 VA respiratory examination report shows that the examiner interviewed the Veteran and found "no history of asthma, emphysema, nor any other pulmonary disease."  A chest X-ray was normal.

An August 2000 VA foot examination report shows that the Veteran complained of severe pain in the plantar aspect of the left heel.  Running, jumping, and standing for long periods of time were precipitating factors.  Prescription pain medication alleviated the pain.  Upon physical examination, there was no objective evidence of painful motion, edema, instability, weakness, or tenderness of the left heel.  X-rays showed no bone spurs noted at the left calcaneum.  Diagnoses included a bone spur, left calcaneal bone.  [The Board notes that this is clearly a typographical error as the examination report does not document any objective findings of a disability in the Veteran's left heel, but instead identifies symptoms and complaints of a bone spur in the right heel.]

The August 2000 VA joints examination report shows that the Veteran denied having any pain or symptoms involving the left knee.  He noted only mild discomfort in the right knee.  Precipitating factors included running, jumping, stretching, and going up and down stairs.  He reportedly had experienced 3-4 severe bouts of knee pain in the past year during which he was functionally impaired.  The pain was alleviated with medication.  He denied any recurrent subluxation or dislocation.  An examination of both knees was negative, except for crepitation in the knee joints.  X-rays were normal.  The diagnosis was right knee injury and left knee injury.

Pulmonary function testing performed in September 2000 showed normal spirometry and mild air trapping.  

During the January 2001 hearing, the Veteran acknowledged that he did not currently have bronchitis.  However, he reported being hospitalized with a lung infection during basic training.  He also reported being diagnosed with bronchitis the day before his discharge.

In December 2002, the Veteran received emergency treatment at the Naval Hospital in Yokosuka, Japan.  He was diagnosed with resolving viral syndrome.  His lungs were clear to auscultation bilaterally.  

In January 2003, the Veteran denied shortness of breath, dyspnea on exertion, paroxysmal nocturnal dyspnea, and orthopnea.  Upon examination of his lungs, there were good breath sounds throughout.  His lungs were clear to auscultation bilaterally, with no wheezes or crackles.

The April 2009 fee basis examination report shows that the Veteran complained of recurrent upper respiratory tract infections although the examiner noted that the Veteran "dates them from his time in Japan in 2005."  His history included "chest infections" in 1989 during basic training.  He reportedly had trained with gas prior to the first Gulf War, which he had to do twice because he failed the first time.  He stated that afterwards he felt as though his nasal membraines were irritated.  
With respect to his left foot, the Veteran gave a history that included heel spurs.  He stated that he had been asymptomatic since discharge as long as he avoided running and jumping.  Upon physical examination, percussion was resonant and there was good air entry throughout both lungs with vesicular breath sounds and no adventitiae.  No heel tenderness was noted upon physical examination.  
The Veteran's knees were not examined.  He reported that he first experienced knee pain after the in-service motorcycle accident, but stated "there has been no trouble since they healed." 

A June 2010 private treatment record shows that the Veteran was treated for an upper respiratory infection.

The most probative evidence of record shows that the Veteran has not been diagnosed with a chronic lung condition, a left foot disability, or residuals of either a right or left knee injury at any time since his December 1992 discharge.  The February 1992 clinician's diagnosis of left bone spur is based on an erroneous understanding of the Veteran's history.  Specifically, the Veteran reported a history of heel spurs in his left foot.  Nowhere in the record is there any objective evidence of a bone spur in the Veteran's left foot.  Therefore, this opinion is based on incorrect facts and has little probative value.  See Black v. Brown, 5 Vet. App. 177   (1993) (the Board is not bound to accept medical opinions that are based on history supplied by the Veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background).  In fact, the history reported by the Veteran is rebutted by the medical evidence of record.
 
Service connection cannot be granted if there is no present disability.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306.  That a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury.  Chelte v. Brown, 10 Vet. App. 268 (1997).  The evidence fails to indicate that the Veteran suffers from a chronic lung condition, a left foot disability, residuals of a left knee injury, or residuals of a right knee injury.  In the absence of proof of a present disability, there can be no valid claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

C.  Left Shoulder

The Veteran contends that he injured his left shoulder during service.

STRs show that the Veteran was treated for neck and bilateral shoulder pain in December 1990.  The assessment was neck spasms.  The clinician prescribed a muscle relaxer and Motrin.  He continued to complain of neck and shoulder pain in January 1991.  In April and May 1991, the Veteran continued to complain of neck and shoulder pain.  The clinician noted that the Veteran appeared to be normal and showed no signs of severe pain.  February 1992 X-rays showed no evidence of fractures.  In June 1992, the Veteran complained of left shoulder pain of five months' duration that he related to lifting heavy objects.  The pain was almost constant and radiated to the left trapezius muscle.  There was full active range of motion with pain on both rotations.  The assessment was myofascial pain, left shoulder.  Physical therapy was prescribed.  In July 1992, the Veteran was prescribed medication for left shoulder pain.

The August 1992 MEB examination report contains a normal clinical evaluation of the upper extremities.  On the accompanying medical history report, the Veteran reported a painful or "trick" shoulder.

The April 1993 VA examination shows that the Veteran related his left shoulder pain to lifting a wall locker 18 months earlier.  He complained of constant pain that was intensified by driving and heavy lifting.  X-rays revealed no significant bone or joint abnormality.  The examiner concluded that the Veteran's complaints of shoulder pain were "apparently unfounded on the basis of pathology."

A February 1994 VA treatment record shows that the Veteran was treated for left shoulder pain and diagnosed with impingement syndrome.  The Veteran received a steroid injection.

In the June 1994 notice of disagreement, the Veteran stated that he felt pain in his left shoulder during the August 1992 MEB examination.  In the October 1994 VA Form 9, the Veteran stated that his left shoulder condition varied.  He wrote:  "There are moments during the month that it can get worst [sic] with restrictions of neck movements."

In March 1998, the Veteran was treated for pain in his lumbosacral area, left neck, and cervical spine.  There was tenderness of the left shoulder with rotation.  The assessment was arthritis/joint pain.

June 1999 X-rays of the left shoulder revealed no bone, joint, or soft tissue abnormalities.  In July 1999, the Veteran complained of left shoulder and neck pain.  The assessment was "left upper trapezius [illegible]."

In July 1999, the Veteran was diagnosed with cervical DJD and "left upper trapezius [illegible]."

An October 1999 private treatment record shows that the Veteran complained of left shoulder pain on extreme rotation.  The Veteran denied having any shoulder pain upon follow-up three months later.  The clinician noted that X-rays were normal.  The assessment was shoulder pain, most likely secondary to trapezius strain.

A May 2001 VA treatment record shows that the Veteran was treated for neck and left shoulder pain.  The assessment was "alteration in comfort related to neck pain."

In February 2004, the Veteran reported a long history of chronic left shoulder pain.  He had received two injections in a 15-year period with complete relief both times.  The pain had recently returned with range of motion movements.  There was full passive and active range of motion without pain, negative impingement sign, and no bicipetal tendonitis signs.  The assessment was shoulder pain.  The Veteran received an injection and was instructed to return in six weeks if he needed another one.

A March 2005 private treatment record shows that the Veteran was treated for left shoulder pain.  There was full range of motion.  Impingement testing was positive.  The diagnosis was "cervical induced pain [illegible] shoulder exam there is no pathological [illegible]."

November 2006 X-rays revealed a tiny bony excrescence in the undersurface of the acromion, but no significant osteoarthritis neuritis of the glenohumeral joint and no significant osteoarthritis of the acromioclavicular joint.  The diagnosis was left shoulder pain with mild impingement.  The Veteran received another injection.

The April 2009 fee basis examination report shows that the Veteran reportedly injured his left shoulder during service as a result of carrying heavy equipment.  He complained of constant pain that was aggravated by lifting and certain movements.  He also reported tenderness, particularly at night if he rolled onto his left side while sleeping.  The shoulder pain had continued since service.  In the past, he had treated the pain with massage, acupuncture, chiropractic adjustment, and cortisone injections.  However, he now "put[] up with it."  There was no tenderness on palpation of the left shoulder.  Crepitus was noted.  X-rays were normal.  

There is no competent evidence of left shoulder arthritis in the first post-service year.  As such, the Veteran's left shoulder disability was not shown to have manifested to a degree of 10 percent or more within one year from his separation from service. 

With respect to service connection on a direct basis, the evidence of record clearly establishes a current left shoulder disability during the appellate period.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic).

Furthermore, the medical and lay evidence of record shows that the Veteran's left shoulder injury was noted in service and has been symptomatic since service.  STRs dated December 1990 through July 1992 show complaints of and treatment for left shoulder pain.  The Veteran consistently reported left shoulder pain due to heavy lifting.  An April 1992 VA treatment record also shows treatment for left shoulder symptoms that reportedly began during service.  During the January 2001 hearing, the Veteran asserted that the onset of his left shoulder symptoms occurred during service.

The Veteran is competent to testify to his symptoms of left shoulder pain.  See Washington, 19 Vet. App. at 368; Charles, 16 Vet. App at 374.  Furthermore, as the Veteran has consistently reported his symptoms and the date of onset of those symptoms throughout the record, and the specific details of his reported left shoulder pain in service are corroborated by his STRs, the Board finds that his statements regarding left shoulder pain are credible. 

Therefore, because the medical records note complaints of and treatment for left shoulder pain in service and after service and because the Veteran's competent and credible statements establish the existence of symptoms of a left shoulder disability beginning in service and continuing since service, the Board finds that symptoms of a left shoulder disability, incurred as a result of the circumstances of the Veteran's service, were noted in service and have continued since his discharge from active service.  See Savage v. Gober, 10 Vet. App. 488 (1997) (holding that a finding that a condition was noted in service does require written documentation).

Additionally, given the short period of time that elapsed between the onset of symptoms in service, the December 1992 discharge from service, and the February 1994 diagnosis of left shoulder impingement, the evidence shows that the Veteran's continuous symptoms of left shoulder pain are linked to his current diagnosis.  There is no evidence of record showing any intervening injuries or any other probative evidence against the Veteran's claim.  

Therefore, in weighing the probative value of the evidence of record showing a current diagnosis of impingement; onset of those symptoms in service; and continuous left shoulder pain since service, service connection for a left shoulder disability is warranted.  See 38 C.F.R. § 3.303(b); Barr, 21 Vet. App. at 307; Savage, 10 Vet. App. at 496-497.  In weighing the evidence of record, any doubt has been resolved in favor of the Veteran.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. 

III.  Increased Schedular Ratings

The Veteran seeks higher initial evaluations for his lumbar spine, right foot, right great toe, and left great toe disabilities.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.97.

During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal.  So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Stages are appropriate here.  The third of the stages represents a lower evaluation, however, as this is the initial assignment of compensable evaluations for these stages, due process protections in 38 C.F.R. § 3.105(e) are not applicable.  See O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007).  The assignment of an initial rating is a retroactive action, while the regulation applies to prospective actions.  Singleton v. Shinseki, 23 Vet. App. 376 (2010); see Reizenstein v. Peake, 22 Vet. App. 202 (2008), aff'd sub nom, 583 F.3d 1331 (Fed. Cir. 2009). 

The Schedule provides for consideration of additional functional impairment of joints due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations.  38 C.F.R. §§ 4.4, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995).  A spinal segment and toes are both considered a group of minor joints.  38 C.F.R. § 4.45.  

A.  Lumbar Spine

In May 1993, the RO granted service connection for degenerative joint disease of the lumbar spine at L3-5 and assigned a noncompensable evaluation under DCs 5010-5242.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012).  

During the pendency of the Veteran's appeal, the regulations pertaining to evaluation of disabilities of the spine were amended twice.  See 67 Fed. Reg. 54345 -54349 (Aug. 22, 2002) (effective September 23, 2002); see 68 Fed. Reg. 51454 -51456 (Aug. 27, 2003) (effective September 26, 2003).  The changes made effective September 23, 2002 involve only changes to the rating of intervertebral disc syndrome (IVDS), evaluating this disability based on the occurrence of incapacitating episodes.  The second change, effective September 26, 2003, renumbered all of the spine diagnostic codes, and provides for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a (2012).  Because both criteria were effective during the period of consideration for this case, the Board must determine whether the revised version is more favorable to the Veteran.  See VAOPGCPREC 7-2003.  However, even if the Board finds the revised version more favorable, the reach of the new criteria can be no earlier than the effective date of that change.  See VAOPGCPREC 3-2000. 

Prior to September 2002, DC 5293, which addressed intervertebral disc syndrome, provided for an evaluation of 10 percent for mild intervertebral disc syndrome, a 20 percent evaluation for moderate intervertebral disc syndrome with recurring attacks, and a 40 percent evaluation for severe intervertebral disc syndrome with recurring attacks and intermittent relief.  Evidence of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and with little intermittent relief warranted a 60 percent rating.  38 C.F.R. § 4.71a, DC 5293 (2001).  

As of September 2002, intervertebral disc syndrome was evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation.  The revised DC 5293 provides that an evaluation of 10 percent was assigned for incapacitating episodes lasting at least one week but less than two.  A 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  For incapacitating episodes lasting at least six weeks over the prior 12 months, a 60 percent evaluation is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (September 2002).  

Note (1) to revised DC 5293 provided that, "an incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Note (2) provides: When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using criteria for the most appropriate neurologic diagnostic code or codes.  38 C.F.R. § 4.71a, DC 5293 (2003).

With respect to the rating criteria in effect prior to September 26, 2003, disabilities of the lumbar spine could be rated under DCs 5285, 5286, 5289, 5292, and 5295.  In this case, DCs 5285, 5286, and 5289 are inapplicable as DC 5285 rated residuals of fractured vertebra and DCs 5286 and 5289 rated ankylosis, which have not been shown.  38 C.F.R. § 4.71a, DCs 5285, 5286, 5289 (2003).  

Prior to September 2003, DC 5292, which addressed limitation of motion of the lumbar spine, provided for an evaluation of 10 percent when limitation of motion was slight, 20 percent when limitation of motion was moderate, and 40 percent when limitation of motion was severe.  38 C.F.R. § 4.71a, DC 5292 (2002).  

The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.

Prior to September 2003, DC 5295, which addressed lumbosacral strain, provided for a 10 percent evaluation when it was manifested by characteristic pain on motion.  A 20 percent evaluation was warranted when there was muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in a standing position.  A 40 percent evaluation was warranted when there was severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space  38 C.F.R. § 4.71a, DC 5295 (2002).  

As of September 2003, a lumbar disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  A 10 percent evaluation is assigned 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 requires thoracolumbar spine forward flexion 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling.  38 C.F.R. § 4.71a (2012).

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees.  38 C.F.R. § 4.71a, DC 5242, Note 2.  

When evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

The Board has also considered DCs 5003 and 5010.  DC 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, the veteran should be rated at 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, DC 5003. 

DC 5010 provides that arthritis, due to trauma and substantiated by X-ray findings, is to be rated as degenerative arthritis.  38 C.F.R. § 4.71a, DC 5010. 

The noncompensable evaluation assigned for the Veteran's low back disability was based on the findings of an April 1993 VA orthopedic examination.  At that time, the Veteran complained of constant pain in his low back.  The pain intensified with prolonged sitting, standing, walking, or repeated bending.  He denied radiation and paresthesias to his lower extremities.  As discussed above, the second page of the report, which includes the examination findings, is missing.  However, X-rays showed minimal osteoarthritic changes.  

An October 1993 VA treatment record notes a complaint of low back pain.

When examined by VA in September 1996, the Veteran complained of pain in his low back and right hip.  There was forward flexion to 80 degrees, extension to 25 degrees, backward extension to 25 degrees, and lateral flexion and rotation to 30 degrees bilaterally.  There was no objective evidence of pain on motion.  There were no postural abnormalities or fixed deformities.  There was no evidence of muscle spasm.  There was no atrophy of the lower extremities.  Knee jerks and ankle jerks were +2 bilaterally.  Straight leg raising was negative bilaterally.  There was no pathological reflex.  
	
A February 1997 VA treatment record shows that the Veteran complained of lumbar pain of one week's duration.  A muscle spasm was noted upon examination.  The diagnosis was degenerative joint disease.  A muscle relaxer was prescribed.  In July 1997, the Veteran continued to complain of low back pain.  Tense and tender back muscles were noted upon examination.  X-rays revealed degenerative spondylosis.  The diagnosis was muscle spasm and arthritis by history.  The clinician prescribed a muscle relaxer.  Upon follow-up two days later, the Veteran denied any urinary retention, constipation, or leg numbness.  The diagnosis was low back pain.

June 1999 X-rays revealed straightening of the lumbar lordosis indicative of muscular spasm.  Moderate diffuse spondylotic changes were also noted.  Disc spaces were well preserved.

An April 2000 private treatment record shows that the Veteran complained of back pain.  Most of the provider's notations are illegible, however, the diagnosis was muscle spasm.

When examined by VA in August 2000, the Veteran complained of a moderate low back discomfort with occasional radiation to the right leg.  He related that when his lower back became swollen, the pain radiated to the entire back area.  Pain was elicited by lifting heavy objects, as well as sitting, standing, or driving for a long time.  Pain was alleviated with hot baths.  He denied any fecal or urinary incontinence.  The Veteran did not take pain medication due possible gastrointestinal side effects.  He used Lodine for severe pain.  He had received physical therapy from a private provider three times during the previous year.  He reported 8-10 severe acute bouts of low back pain in the previous year, which impaired him functionally.  He denied the use of assistive devices.  There was forward flexion to 60 degrees, backward extension to 30 degrees, lateral flexion to 35 degrees bilaterally, and rotation to 30 degrees bilaterally.  There was no objective evidence of painful motion.  There was no muscle spasm.  There was mild tenderness to palpation on the lumbosacral area.  There were no postural abnormalities or fixed deformities.  There was a positive Goldwaithe's sign bilaterally.  Straight leg raising was negative bilaterally.  Gait was normal.  There was no muscle atrophy of the lower extremities.  Ankle jerk was +2 bilaterally.  X-rays revealed mild degenerative joint disease and right L5 spondylolysis without associated spondylolisthesis.  The examiner ordered an Nerve Conduction Study (NCS) and an Electromyogram (EMG); however, neither study was completed per the Veteran's request.  An MRI showed posterior bulging discs, degenerative disc disease, and degenerative joint disease throughout the lumbar spine.

During the January 2001 hearing, the Veteran indicated that he had been unemployed since April 2000.  He had previously worked as a mental health assistance in an institution.  He stated that back pain had affected his work because he could no longer lift heavy or violent patients by himself.  He related one instance where the back pain radiated to his ankle, but noted that it no longer bothered him.

The April 2009 fee basis examination report shows that the Veteran denied lumbar pain.  There was full range of motion with no pain.  There was straight leg raising to 85degrees bilaterally.  There were no neurological abnormalities.

A June 2010 private treatment record shows that the Veteran was treated for back pain.  He requested a muscle relaxer and injection, which the clinician discouraged.

Prior to August 17, 2000

After having carefully reviewed the evidence of record, the Board finds that a 10 percent evaluation is warranted for the Veteran's back disability during this time period.  As noted, X-rays from the April 1993 VA examination showed minimal osteoarthritic changes.  DC 5003 provides for a 10 percent evaluation for X-ray evidence of degenerative arthritis.

The Board has considered whether the Veteran is entitled to a higher evaluation under one of the previously effective criteria.  While the Veteran made subjective complaints of pain during this time period, no clear finding of the range of motion in flexion prior to September 1996 is of record.  The September 1996 examination showed flexion to 80 degrees, extension to 25 degrees, rotation to 30 degrees bilaterally, and lateral flexion to 30 degrees bilaterally.  There was no evidence of pain on motion.  There was no finding of any functional limitations.  The Board finds that, therefore, that a higher 20 percent rating is not warranted under DC 5292. 

There is no indication of recurring attacks of intervertebral disc syndrome on examination or elsewhere in the claims file during this time period.  For the reasons described above, the Board finds that the Veteran's lumbar spine disability was not moderate in degree and that he did not have recurring attacks of intervertebral disc syndrome to warrant a higher rating under DC 5293.  Thus, a separate or higher evaluation based on neurological manifestations secondary to the Veteran's lumbar spine disability is not warranted during this time period. 

The Board has also considered whether a higher evaluation would be available to the Veteran during this time period under DC 5295 for lumbosacral strain.  Physical examinations completed in February 1997, June 1999, and April 2000 revealed muscle spasm.  However, the September 1996 VA examination reflects at least 35 degrees lateral flexion and 30 degrees lateral rotation bilaterally.  Because the evidence showed muscle spasm with no indication of loss of lateral spine motion in a standing position, the Board finds that the Veteran's disability does not more nearly approximate a higher 20 percent under DC 5295 during this time period.

Accordingly, an increased 10 percent evaluation, but no higher, for DJD and DDD of the lumbar spine prior to August 18, 2000 is warranted.

August 18, 2000 to April 28, 2009

At the August 2000 VA examination, there was flexion to 60 degrees.  There is no further indication of measured range of motion until April 2009.  The measured 60 degree limitation of motion warrants assignment of a 20 percent evaluation under the rating criteria which became effective on September 26, 2003.  The Rating Schedule very clearly identifies this range of motion as the upper limit for assignment of the 20 percent evaluation.

Those criteria were not, of course, effective prior to September 26, 2003.  Under the applicable criteria for evaluating limitation of motion of the lumbar spine, a 20 percent evaluation is warranted for moderate impairment. "Moderate impairment" is not defined in the regulations, but it appears inconsistent to consider such a degree moderate under current criteria, but not under older criteria, where the current criteria effectively divide a normal 90 degree range of motion into three zones.

The Board notes that DC 5293 provides a 40 percent rating for severe disc disease with recurring attacks and intermittent relief.  38 C.F.R. 4.71a, DC 5293 (2001).  The medical record indicates that the Veteran has been able to control back pain through rest and medication.  At no time during the pendency of the appeal has any incapacitating episode been described.  No doctor has prescribed such and treatment records reflect no necessary treatment during any such period.  38 C.F.R. § 4.71a, DC 5293 (2003).  

The Board has considered whether a rating in excess of 20 percent is available based upon the prior criteria covering limitation of motion for the spine.  Although the Veteran's back disability results in limited motion, the Board declines to classify it as a "severe" level as contemplated by the criteria for a rating in excess of 20 percent by DC 5292.  Indeed, the record shows that the Veteran's forward flexion motion of the lumbar spine was limited by no more than 60 degrees.  For these reasons, the Board does not find that the record shows a severe limitation of motion under DC 5292 during this time period. 

Similarly, the evidence does not show that the Veteran's back disability meets the criteria for a rating in excess of 20 percent under DC 5295.  The August 2000 VA examination report showed the Veteran having 35 degrees for lateral flexion bilaterally and 30 degrees for rotational flexion bilaterally.  The Board notes that the August 2000 VA examination included a positive Goldthwaite's sign.  However, the medical evidence does not support a characterization of the Veteran's spine as wholly listing or exhibiting a marked limitation in forward flexion motion or loss of lateral motion to meet the 40 percent criteria for DC 5295.  

The Board has also considered whether a higher rating is warranted under the revised General Rating Formula for Diseases and Injuries of the Spine.  The August 2000 VA examination reflects 60 degrees of forward flexion, and 220 degrees combined range of motion.  There was no objective evidence of pain on motion.  Therefore, the Board finds that the disability picture does not more nearly approximate the criteria for a higher 20 percent rating under DC 5242.

Furthermore, the record shows no deformities in the spine or any bowel or bladder dysfunction or other neurological impairment during this time period as a result of the lumbar spine disability.

Accordingly, an increased 20 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, from August 18, 2000 to April 28, 2009, is warranted.

From April 29, 2009

Effective April 29, 2000, the date of the fee basis VA examination, the competent evidence of record establishes improvement in the Veteran's lumbar spine disability.  There was full range of motion with no pain.  No spasm or changes of posture or spinal curvature are evident.  Under the currently effective criteria, this corresponds to no greater than a 10 percent evaluation. 5242.

The Board has also considered whether the Veteran would be entitled to a higher rating under the current criteria for incapacitating episodes.  The Veteran has not alleged, nor does the competent evidence of record demonstrate, any incapacitating episodes at any time during the appeal period.  Rather, the Veteran has reported pain and limitation of motion, as well as functional impairment.

Higher evaluation under one of the previously effective criteria is also not permitted during this time period.  No incapacitating episodes were described, alleged, or shown in treatment records.  See 38 C.F.R. § 4.71a, DC 5293 (2003).  The limitation of flexion is no greater than slight, as it reflects impairment only in the first third of a normal 90 degree range of motion.  See 38 C.F.R. § 4.71a, DC 5292 (2002).  No spasm with movement was demonstrated, nor was there listing of the spine or marked limited motion in any plane.  See 38 C.F.R. § 4.71a, DC 5295 (2002).  Finally, the record reflects no consistent, objective evidence of recurring attacks of neurological problems associated with the back.  Attacks were too variable and minor to be termed "recurring" of a moderate degree.  See 38 C.F.R. 
§ 4.71a, DC 5293 (2002).

Accordingly, an increased 10 percent evaluation, but no higher, for DJD and DDD, from April 29, 2009, is warranted.

Consideration has also been given to whether separate evaluations are warranted for neurologic manifestations of the Veteran's lumbar spine disability.  See 38 C.F.R. § 4.71a, General Rating Formula, Note (1).  In August 2000, the Veteran complained of back pain that occasionally radiated to his right leg.  However, examinations of the lower extremities resulted in fully normal clinical findings at the September 1996 and August 2000 VA examinations.  There is no evidence of radiculopathy of the right lower extremity.  Nor is there evidence of bladder and bowel dysfunction.  Accordingly, the evidence does not support separate ratings for neurologic manifestations under any time period.  

Whether the Veteran's back disability results in functional loss has also been reviewed with respect to all three timeframes. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 206.  It is not disputed that, prior to April 29, 2009, the Veteran had limitation of motion of the lumbar spine.  However, the September 1996 and August 2000 VA examiners noted no objective evidence of pain during active motion.  Accordingly, the evidence does not support a higher evaluation on the basis of functional loss for any portion of the appeal period.

Other than the periods of staged ratings prior to August 18, 2000, from August 18, 2000 to April 28, 2009, and from April 29, 2009, the level of impairment in the lumbar spine has been relatively stable throughout the appeals period, and has never been worse than what is warranted for the ratings assigned.  Therefore, any further application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

B.  Right Foot

In May 1993, the RO granted service connection for bone spur right foot and assigned a noncompensable evaluation under DC 5024, which evaluates impairment from tenosynovitis.  DC 5024 in turn calls for the disability to be rated on limitation of motion of the affected parts, as with degenerative arthritis.  38 C.F.R. § 4.71a, DC 5024 (2012).  Similarly, DC 5015 evaluates benign new growths of bones based on limitation of motion of affected parts as degenerative arthritis.

Limitation of motion of the foot can be evaluated under DC 5271 which provides evaluations of 10 and 20 percent for moderate and marked limitation of motion of the ankle, respectively.  38 C.F.R. § 4.71a, DC 5271.  The rating schedule provides that normal range of motion of the ankle is 0 to 20 degrees dorsiflexion and 0 to 45 degrees plantar flexion.  38 C.F.R. § 4.71, Plate II. 

The Veteran's left foot heel spur may also be evaluated under DC 5284 which provides evaluations of 10, 20, and 30 percent for moderate, moderately severe, and severe injuries of the foot, respectively.  38 C.F.R. § 4.71a, DC 5284.

The words slight, moderate, moderately severe, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. 

A January 1993 VA treatment record shows that the Veteran twisted his right ankle.  There was full range of motion with no pain, swelling, or erthyema.  Deep tendon reflexes were 2+.  X-rays showed no evidence of fracture.  Straight leg raising test was negative.

The April 1993 VA examination report shows that the Veteran complained of pain in his right foot.  Heel cushions were not effective, but wearing sneakers helped.  As discussed above, the second page of the report containing the examination findings is missing.  X-rays revealed no significant bone abnormality.  The examiner noted that no evidence of heel spurs was noted.

A March 1996 VA treatment record shows that the Veteran complained of foot pain.  He used medication to control the pain.  He had not used orthotics.  No swelling or deformity was noted.

The September 1996 VA examination showed that the Veteran complained of pain in the right ankle with swelling.  There was full range of motion of the ankle.  No diagnosis with respect to the right foot was provided.

An August 2000 VA examination conducted with respect to the Veteran's left foot and big toes contains relevant medical evidence.  The examiner noted no hammer toes, high arch, pes planus, claw foot, or other deformity on either foot.  X-rays of the right foot revealed minimal superior and inferior calcaneal enthesopathy.

During the January 2001 hearing, the Veteran testified that "[s]ometimes I don't know even where I have them" and that "I don't know if the spurs are bothering me right now because my lifestyle is very passive."  Hearing Transcript at 12.

The April 2009 fee basis VA examination report shows that the Veteran complained of a heel spur.  He reportedly had been symptom-free since his December 1992 discharge as long as he avoided running and jumping.  Physical examination revealed no heel tenderness.

As an initial matter, the record does not reveal that the Veteran has any limitation of motion of the right foot due to the heel spur and no joint is affected.  There is no heat, redness or tenderness, lack of stability, or lack of endurance.  The Veteran has had normal posture and gait, and the right foot is normal in appearance with no calluses indicative of unusual pressure points.  Accordingly, the Veteran does not meet the criteria for a compensable rating under DC 5003, 5015, 5024, or 5271. 

Furthermore, the Veteran's right foot has not been shown to be characterized by weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones, as evidenced by X-ray examination in October 2004.  Accordingly, the Cods pertaining to those disabilities are not applicable in the instant case.  See 38 C.F.R. § 4.71a, DCs 5276 - 5283 (2012). 

In addition, it appears from the Veteran's testimony and statements to medical professionals that his right heel pain is intermittent.  See,e.g., January 2001 Hearing Transcript and April 2009 Examination Report.  Thus, the Veteran's right heel spur does not approximate a moderately severe foot injury as required to warrant a compensable initial evaluation under DC 5284.  38 C.F.R. § 4.71a, DC 5284. 

There is no indication of pain or other functional impairment causing additional limitation of motion at any time during the appeal period.  Thus, an increased initial evaluation on the basis of the DeLuca factors is not warranted.

In light of the holding in Hart, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected right heel spur.  Based upon the record, the Board concludes that at no time during the appeal period has this disability been more disabling than as currently rated.
 
The preponderance of the evidence is against the claim for a higher initial rating. There is no doubt to be resolved.  Accordingly, an initial compensable evaluation for right heel spur is not warranted for any portion of the appeal period.

C. Great Toes

In May 1993, the RO granted service connection for minimal arthritis in the right and left great toes and assigned noncompensable evaluations under DCs 5010-5283.  

Under DC 5010, arthritis due to trauma, substantiated by X-ray findings, is to be rated as arthritis degenerative under DC 5003.  Under DC 5003, degenerative changes established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved.  When however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for limitation of motion, when limitation of motion is objectively confirmed by findings such as satisfactory evidence of painful motion. 

DC 5283 pertains to malunion or nonunion of the tarsal or metatarsal bones.  38 C.F.R. § 4.124a.  Under that DC, a 10 percent rating is warranted for moderate symptoms; a 20 percent rating is warranted for moderately severe symptoms; a 30 percent rating is warranted for severe symptoms; and a 40 percent rating is warranted for actual loss of use of the foot. 

The Board has also considered alternative diagnostic codes that potentially relate to impairment of the feet.  However, as explained below, the objective evidence does not reflect bilateral weak foot (DC 5277), claw foot (DC 5278), anterior metatarsalgia (DC 5279), or hammer toe (DC 5282). 

An April 1993 VA examination report shows that the Veteran complained of constant pain in both great toes.  The pain was intensified by standing, walking, and running.  X-rays revealed minimal osteoarthritic changes in the first metatarsal phalangeal joints bilaterally.  The examiner noted that these findings did not reveal objective physical manifestations.

A September 1996 VA examination report shows that the Veteran complained of pain in both great toes that was worse on cold and rainy days.  No swelling was noted upon physical examination.  There were prominent feet exostosis bony deformity tender to palpation on both IP joints of the great toes.  Range of motion for both great toes was 50 degrees of plantar flexion and 70 degrees of dorseflexion.  

An August 2000 VA examination report shows that the Veteran complained of severe pain in both great toes.  Eliciting factors were running, jumping, and standing for a long time.  The pain was alleviated with medication.  He reported that during the past year he experienced flare-ups once a week, which caused him to avoid activities that provoked the pain.  Upon physical examination, there were no hammer toes, high arch, pes planus, claw foot, or other deformity.  Range of motion of the great toes was 60 degrees of dorsiflexion.  There was no pain on motion.  There was no objective evidence of edema, instability, weakness, or tenderness of the great toes.  There were no functional limitations on standing and walking.  The diagnosis was mild hallus valgus deformities on both great toes more prominent on the left toe with a 10 degree valgus angulation.  X-rays were ordered, but the Board notes that they are not in the claims file.  The diagnosis was degenerative joint disease of the right and left great toes.

During the January 2001 hearing, the Veteran stated that his great toes were not as flexible as they once were.  He complained of pain in both toes that was greater on the left.  He testified that his left great toe was "deformed and it's bigger and you can tell it looks different to the right toe."  Hearing Transcript at 10.  He stated that he did not like to walk much because of the pain, and that he wore very comfortable, wide shoes. 

The April 2009 fee basis VA examination report shows that the Veteran continued to complain of great toe pain that was aggravated by running and walking, although he was unable to estimate how far he could run or walk.  He had had no particular treatment aside from pain medication.  The examiner observed that both first metatarsophalangeal joints were prominent and tender, but noted that "there is little callosity" and no other abnormality of the feet.  Range of motion was normal for both toes.

Based on the evidence of record, the Board finds that arthritis of the right and left great toes has not been manifested by symptoms that warrant compensable evaluations under DC 5283.  The X-ray findings revealed no evidence of malunion or nonunion of either great toe.  The Veteran had active motion of the both great toes and the August 2000 examiner indicated that he did not have any limitations for standing or walking.  The findings therefore do not more nearly approximate or equate to a moderate disability to warrant a compensable rating of 10 percent under DC 5283.  For the same reasons, the Veteran would not be entitled to an initial higher evaluation under DC 5284 for other foot injuries, which would require moderate symptoms of impairment.  Thus, the Veteran is not entitled to an initial compensable rating of 10 percent for either great toe under DC 5283 or DC 5284.  

The Board has considered whether the Veteran would be entitled to a separate compensable rating under DC 5280.  The August 2000 VA examiner diagnosed mild hallus valgus deformities on both great toes more prominent on the left toe with a 10 degree valgus angulation.  Dorsiflexion at the first metatarsophalangeal joint was 60 degrees.  DC 5280 pertains to unilateral hallux valgus.  A 10 percent disability rating is warranted for severe hallux valgus if the disability is equivalent to the amputation of the great toe, or if the toe has been operated on with a resection of the metatarsal head.  38 C.F.R. § 4.71a, DC 5280. 

Based on a review of the evidence, the Board finds that the Veteran's service-connected arthritis of the great toes does not warrant compensable disability ratings under DC 5280.  There is no evidence in the record that his current condition is equivalent to amputation of the great toes or has been operated on with resection of the metatarsal head.  The Board notes that the Veteran has not received treatment for his bunions, including surgical interventions.  Further, the August 2000 VA examiner observed only mild hallux valgus bilaterally.  While there was a lateral deviation of the big toe at the metatarsophalangeal joint with prominence of the medial eminence in both feet, it was only mild.  X-rays reveal no signs of a fracture or dislocation in either foot.  As such, compensable ratings for the Veteran's service-connected great toes is not warranted under DC 5280.  

The Board has considered whether the Veteran would be entitled to a higher rating under other diagnostic codes.  The evidence does not show that the Veteran has flatfoot, weak foot, an acquired claw foot, Morton's disease, hallux rigidus, or hammer toe to warrant an initial compensable rating under DCs 5276, 5277, 5278, 5279, 5281, and 5282. 

However, there is X-ray evidence of degenerative joint disease of the first metatarsophalangeal joints and painful motion demonstrated by pain upon standing and walking.  Therefore, as there is satisfactory evidence of painful motion with X-ray evidence of degenerative arthritis, a 10 percent rating under DC 5003 is warranted for arthritis of both the right and left great toe. 

The Board has considered the guidance of DeLuca.  The Veteran has complaints of pain and functional impairment in both great toes.  This functional impairment, however, is considered by the 10 percent ratings currently assigned.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.

The Board has considered whether the Veteran is entitled to additional staged ratings.  See Hart, 21 Vet. App. 505.  Based upon the record, the Board concludes that at no time during the appeal period have the great toe disabilities been more disabling than as currently rated.

IV.  Additional Considerations

Consideration has also been given regarding whether the schedular evaluations are inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular evaluations in this case are adequate.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflects that those symptoms are not present in this case.  Also, the diagnostic criteria adequately describe the severity and symptoms of the service-connected disabilities addressed herein.  The medical evidence generally shows subjective complaints of back and bilateral great toe pain, with intermittent functional impairment of the back due to pain.  As discussed above, these symptoms are contemplated by the rating criteria.  The Veteran has not been hospitalized for any of his service-connected disabilities.  While the Veteran's testimony indicates that his back and great toe pain affects his ability to perform his duties at work, he has not reported any lost time from work.  

Last, an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered.  During the Veteran's January 2001 DRO hearing, he testified that he had last worked in August 2000 as a mental health assistant in an institution.  However, a January 2005 VA Form 21-4138 indicates that the Veteran was working as a physical education teacher.  In addition, the Veteran told the April 2009 examiner that he was working as a Spanish and physical education teacher.  Therefore, any inferred TDIU claim is inapplicable in this case.

 
ORDER

Entitlement to service connection for hypertension is granted, subject to the regulations governing payment of monetary benefits. 

Entitlement to service connection for a chronic lung condition (claimed as bronchitis) is denied.

Entitlement to service connection for a bone spur, left heel, is denied.

Entitlement to service connection for residuals of a left knee injury is denied.

Entitlement to service connection for residuals of a right knee injury is denied.

Entitlement to service connection for residuals of a left shoulder injury is granted, subject to the regulations governing payment of monetary benefits..

An increased 10 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, prior to August 18, 2000, is granted, subject to the regulations governing payment of monetary benefits.

An increased 20 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, from August 18, 2000 to April 28, 2009, is granted, subject to the regulations governing payment of monetary benefits.

An increased 10 percent evaluation, but no higher, for DJD and DDD of the lumbar spine, from April 29, 2009, is granted, subject to the regulations governing payment of monetary benefits.

An initial compensable evaluation for a bone spur of the right foot is denied.

Entitlement to an initial rating of 10 percent of arthritis of the right great toe with hallux valgus is granted, subject to the regulations governing payment of monetary benefits.

Entitlement to an initial rating of 10 percent of arthritis of the left great toe with hallux valgus is granted, subject to the regulations governing payment of monetary benefits.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs