Citation Nr: 1306030	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  99-21 589	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for a right ankle disability.

2.  Entitlement to an initial disability rating in excess of 10 percent for the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip.

3.  Entitlement to an initial disability rating in excess of 30 percent for the residuals of left upper extremity cold exposure with Raynaud's syndrome.

4.  Entitlement to an initial disability rating in excess of 30 percent for the residuals of right upper extremity cold exposure with Raynaud's syndrome.

5.  Entitlement to an initial disability rating in excess of 40 percent for prostatitis with urethritis and benign prostatic hyperplasia with nocturia.

6.  Entitlement to an initial compensable disability rating for allergic rhinitis symptomatology with asthma and history of upper respiratory infections prior to August 26, 2004; and in excess of 30 percent thereafter.

7.  Entitlement to an initial disability rating in excess of 60 percent for degenerative disc disease of the lumbar spine and the thoracic spine.

8.  Entitlement to an initial disability rating in excess of 20 percent for tendonitis of the left (minor) shoulder rotator cuff.

9.  Entitlement to an initial compensable disability rating for left knee chondromalacia.

10.  Entitlement to an initial compensable disability rating for right knee chondromalacia.

11.  Entitlement to an initial compensable disability rating for granuloma annulare (claimed as shingles).


WITNESS AT HEARINGS ON APPEAL

Veteran


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1973 to December 1976 and from January 1981 to October 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the St. Petersburg, Florida, and Pittsburgh, Pennsylvania, Regional Offices (RO) of the Department of Veterans Affairs (VA).

The Veteran participated in a Decision Review Officer (DRO) hearing in October 1999.  The Veteran also testified before the undersigned Veterans Law Judge (VLJ), sitting at the St. Petersburg, Pennsylvania, RO in May 2012.  Transcripts of these proceeding have been prepared and incorporated into the evidence of record.

Many of the claims enumerated on the Title page of this decision were previously before the Board in March 2001, January 2006, and September 2009.

In January 2006, the Board denied the Veteran's claims of entitlement to service connection for tendonitis of the left (minor) shoulder rotator cuff, cardiomegaly and residuals of injuries to the bilateral hands and knuckles.  The Veteran subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the Board's decision.  The Court affirmed the Board's denial of the Veteran's claims of entitlement to service connection for cardiomegaly and residuals of injuries to the bilateral hands and knuckles and Vacated and Remanded the Board's denial of the claim of entitlement to service connection for tendonitis of the left (minor) shoulder rotator cuff.  The Court issued an Order to this effect in August 2008.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  The TDIU issue must be considered herein.  See Rice, supra, & VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).  In the present claim, the Board notes that the Veteran has not indicated that he is unemployable as a result of the service-connected disabilities currently on appeal.  Further, he has been assigned a 100 percent disability rating for the entire appeal period.  The issue of entitlement to a TDIU, accordingly, is not applicable in the present case.

The following issues have been raised by the record, but have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction to adjudicate them and they are referred back to the AOJ for appropriate action.

* Entitlement to service connection for chronic paresthesias of the right hand.  (See Veteran's Statement, May 18, 1998).
* Entitlement to service connection for chronic paresthesias of the left hand.  (See Veteran's Statement, May 18, 1998).
* Entitlement to service connection for small periurethral diverticulum secondary to service-connected residuals of excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip.  (See Veteran's Statement, September 27, 1998).
* Entitlement to service connection for a prostate nodule.  (See Veteran's Statement, September 27, 1998).
* Entitlement to service connection for a right hip disorder.  (See Veteran's Statement, June 10, 2004).
* Entitlement to service connection for a left hip disorder.  (See Veteran's Statement, June 10, 2004).
* Entitlement to service connection for a right elbow disorder.  (See Veteran's Statement, June 10, 2004).
* Entitlement to service connection for a left elbow disorder.  (See Veteran's Statement, June 10, 2004).
* Entitlement to service connection for carpal tunnel syndrome (CTS) of the right wrist.  (See Veteran's Statement, September 19, 2005).
* Entitlement to service connection for CTS of the left wrist.  (See Veteran's Statement, September 19, 2005).
* Entitlement to service connection for the loss of tooth number 19, secondary to service-connected sebaceous cysts.  (See Veteran's Statement, September 28, 2011).
* Entitlement to a compensable disability rating for tendonitis of the right (major) shoulder rotator cuff.  (See Veteran's Statement, June 10, 2004).
* Entitlement to a compensable disability rating for a left ankle disability.  (See Veteran's Statement, June 10, 2004).
* Entitlement to a disability rating in excess of 10 percent for hypertension.  (See Veteran's Statement, June 10, 2004).
* Entitlement to a compensable disability rating for sebaceous cysts.  (See Veteran's Statement, September 28, 2011).

The issues of entitlement to initial disability ratings (1) in excess of 60 percent for degenerative disc disease of the lumbar spine and the thoracic spine; (2) in excess of 20 percent for tendonitis of the left (minor) shoulder rotator cuff; and entitlement to compensable disability ratings for (3) left knee chondromalacia; (4) right knee chondromalacia; (5) granuloma annulare (claimed as shingles) and (6) allergic rhinitis symptomatology with asthma and history of upper respiratory infections prior to August 26, 2004; and in excess of 30 percent thereafter, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  The Veteran will be notified if any further action on his part is required.


FINDINGS OF FACT

1.  On May 16, 2010, during the Veteran's Travel Board hearing and prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claim of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability.

2.  The Veteran's service-connected residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, are manifested by pain and difficulty standing and walking for prolonged periods.

3.  The Veteran's service-connected residuals of left upper extremity cold injury exposure with Raynaud's syndrome are manifested by persistent mild numbness and stiffness, with pain whenever exposed to the cold.

4.  The Veteran's service-connected residuals of right upper extremity cold injury exposure with Raynaud's syndrome are manifested by persistent mild numbness and stiffness, with pain whenever exposed to the cold.

5.  The Veteran's service-connected prostatitis with urethritis and benign hyperplasia with nocturia is manifested by awakening to void five or more times per night.  Additional residuals, including occasional involuntary bowel movements, do not require the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day.

6.  The evidence of record does not show a marked interference with employment or frequent periods of hospitalization due to any of the Veteran's service-connected disabilities that are the subject of this appeal, so as to render impractical the application of the regular schedular standards.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issue of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The schedular criteria for an initial disability rating in excess of 10 percent for the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.55, 4.56, 4.59, 4.73, Diagnostic Code 5015-5315 (2012).

3.  The schedular criteria for an initial disability rating in excess of 30 percent for the residuals of left upper extremity cold injury exposure with Raynaud's syndrome have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7117-7122 (2012).

4.  The schedular criteria for an initial disability rating in excess of 30 percent for the residuals of right upper extremity cold injury exposure with Raynaud's syndrome have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7117-7122 (2012).

5.  The schedular criteria for an initial disability rating in excess of 40 percent for prostatitis with urethritis and benign hyperplasia with nocturia have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2012).
6.  Application of extraschedular provisions is not warranted in this case.  38 C.F.R. § 3.321(b) (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal of Appeal

The Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed.  See 38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  See 38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the Veteran or by his authorized representative.  See 38 C.F.R. § 20.204 (2012).  In the present case, the Veteran has withdrawn the issue of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed.

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

The Veteran seeks entitlement to increased initial disability ratings for: the residuals of left upper extremity cold exposure with Raynaud's syndrome; the residuals of right upper extremity cold exposure with Raynaud's syndrome; the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip; and for prostatitis with urethritis and benign prostatic hyperplasia with nocturia.

In the interest of clarity, the Board will first discuss certain preliminary matters.  The Board will then render a decision.

The Board has given consideration to the VCAA.  The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).  The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist.  The Board will now address these concepts within the context of the circumstances presented in this case.

Standard of Review

In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Duty to Notify

The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA].

After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal.  The Board observes that the Veteran was informed of the evidentiary requirements to substantiate a claim for service connection in a letter from the RO dated in May 2001, including evidence of "a relationship between your disability and an injury, disease, or event in military service."  Additionally, the Veteran was provided with additional notice in letters dated in May 2008 and March 2010.

Crucially, the Veteran was informed of VA's duty to assist him in the development of his claims and advised of the provisions relating to the VCAA in the above-referenced VCAA letters.  Specifically, the Veteran was advised that VA is responsible for obtaining relevant records from any Federal agency, including records kept by VA treatment centers and the Social Security Administration.  The letters indicated that a VA medical examination would be scheduled if necessary to adjudicate his claims.

With respect to private treatment records, the letters informed the Veteran that VA would make reasonable efforts to obtain relevant records not held by any Federal agency.  Included were copies of VA Form 21- 4142, Authorization and Consent to Release Information, and the Veteran was asked to complete this release so that VA could obtain these records on his behalf.

The letters further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it.  If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you.  It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency."  [Emphasis as in the original letter.]

The Veteran was also provided with language satisfying the "give us everything you've got" requirement formerly contained in 38 C.F.R. § 3.159(b).  The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).  The amendments, which apply to applications for benefits pending before VA on, or filed after, May 30, 2008, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim.]

Finally, there have been two significant Court decisions concerning the VCAA.  In the first, Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Because a claim is comprised of five elements, the notice requirements of section 5103(a) apply generally to all five elements of that claim.  Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Veteran was provided specific notice of the Dingess decision in the above-referenced May 2008 and March 2010 letters from the RO, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment."  The Veteran was also advised in the letters as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities.

With respect to effective date, the May 2008 and March 2010 letters instructed the Veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards."  The Veteran was also advised in the letters as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the Veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve.

In this case, element (1), veteran status, is not at issue.  Moreover, as explained above, the Veteran has been provided notice of elements (2) and (3) by way of the May 2001 VCAA notice letter outlined above.  Elements (4) and (5), disability rating and effective date, are rendered moot by the Board's denial of the Veteran's increased rating claims herein.  In other words, any lack of timely advisement as to those elements is meaningless, because a disability rating and effective date are not, and cannot be, assigned in the absence of the grant of service-connection or an increased rating.

Further, the Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO.  Initially, the Board notes that the Veteran initiated his claims prior to the enactment of the VCAA.  He was provided with VCAA notice shortly thereafter, in May 2001.  Further, the Veteran was allowed the opportunity to present evidence and argument in response to the issued VCAA letters, and the Veteran's increased rating claims were readjudicated in subsequent supplemental statements of the case.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim].  The Veteran has pointed to no prejudice or due process concerns arising out of the timing of the VCAA notice.  The Board accordingly finds that there is no prejudice to the Veteran in the timing of the VCAA notice.

The Board is also aware of the Court's decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life.  Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life.

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores test in part, striking the claimant-tailored and "daily life" notice elements.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Recently, the Court issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III).

The Board observes that the Veteran was not informed of the relevant law and regulations pertaining to his increased rating claims as contemplated in the recent Vazquez-Flores III decision.  However, the essential fairness of the adjudication was not affected because the Veteran had actual knowledge of what was necessary to substantiate these claims.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  The Veteran has submitted argument, which specifically referenced symptoms listed under the Diagnostic Codes utilized in rating his claims, and made specific argument as to how his disabilities had increased in severity and the effect that increase had on his daily life.  It is therefore clear that the Veteran was aware of the applicable schedular standards.

In any event, the Board notes that with respect to appeals of initially assigned disability ratings such as the instant case, the additional notice requirements recently set forth in Vazquez-Flores III do not apply.  Specifically, once service connection has been granted, VA's VCAA notice obligations are fully satisfied and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements].

Accordingly, due to the content of the notice given and the Veteran's actual knowledge, the Board finds that the Veteran has received appropriate VCAA notice to include as contemplated by the Court in Vazquez-Flores III.

Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the Veteran].

Duty to Assist

In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them.  The Board has also reviewed the Veteran's electronic Virtual VA file, to which no additional evidence has been added.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).

The RO provided the Veteran appropriate VA examinations in February 1999, April 2002, and July 2010.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The VA examination reports are thorough and supported by VA outpatient treatment records.  The examinations in this case are adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

Additionally, the Board finds there has been substantial compliance with its September 2009 remand directives.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  The record indicates that the AMC provided the Veteran with notice associated with his left shoulder claim, requested any additional outstanding evidence and scheduled the Veteran for a medical examination for his left shoulder, which he attended.  The AMC later issued a rating decision granting the claim.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012).

As noted above, hearings were held before a DRO (in October 1999) and before the undersigned VLJ in May 2012.  In Bryant v. Shinseki, 23 Vet. App. 488, the United Court held that 38 C.F.R. § 3.103(c)(2) requires that the Hearing Officer or VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during both hearings, the DRO and the undersigned VLJ noted the bases of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for increased benefits.  In addition, both the DRO and the undersigned VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims.  Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has he identified any prejudice in the conduct of either hearing.  By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits.  As such, the Board finds that, consistent with Bryant, both the DRO and the undersigned VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.

The Board also observes that all due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been afforded the opportunity to present evidence and argument in support of his claims, and was given the opportunity to present testimony at both a DRO and Board hearing.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected.

Accordingly, the Board will proceed to a decision.

III.  Increased Disability Ratings - Schedular Criteria

Relevant Law and Regulations

Disability Ratings - Generally

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4 (2012).

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 (2012).

A request for an increased rating must be viewed in light of the entire relevant medical history.  See 38 C.F.R. § 4.1 (2012); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991).  However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating.  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."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"].

Rating Musculoskeletal Disabilities

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See generally DeLuca v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. § 4.40 (2012).

The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.

General Considerations for Evaluating Muscle Disabilities

The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.  See 38 C.F.R. § 4.56(c) (2012).

A moderately severe muscle injury is the result of a through and through or deep penetrating wound by a small high velocity missile or a large low velocity, with debridement, prolonged infection or sloughing of soft parts and intermuscular scarring.  The objective findings include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance or normal firm resistance of the muscles compared to the sound side; tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment.  See 38 C.F.R. § 4.56(d)(3) (2012).

A severe muscle disability results from a through and through or deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  The objective findings would include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles that swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function.  If present, the following are also signs of severe muscle disability: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (B) adhesion of the scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile.  See 38 C.F.R. § 4.56(d)(4) (2012).

1.  Residuals of an Excised Calcified Hematoma of the Right Hip

The Veteran contends that he currently suffers from the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, that are not adequately compensated by his currently assigned 10 percent disability rating.

Assignment of Diagnostic Code

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In this case, the Board has considered whether another rating code is "more appropriate" than those used by the RO.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The Veteran's residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, are currently rated under 38 C.F.R. § 4.71a and 4.73, Diagnostic Code 5015-5315 [Bones, new growths of, benign] and [Group XV Function of pelvic girdle and thigh].  As noted, 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.  The medical evidence of record indicates that the Veteran injured his groin area in a parachuting incident when his belt harness was jerked violently into his crotch.  He developed a calcified hematoma, which was surgically removed in June 1994.  The Veteran experienced impairment in function of the right hip as a result of this surgery.  Diagnostic Code 5315 is appropriate for the right thigh, as only the mesial thigh muscles appear to be involved on the right side.

The Board has considered whether another rating code is more appropriate, but the assigned diagnostic codes address the disabilities in question.  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate and the Veteran has not requested that another diagnostic code be used.

Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 5015-5315.

Schedular Criteria

Diagnostic Code 5315 deals with Muscle Group XV function and provides the following levels of disability: 30 percent for severe disability; 20 percent for moderately severe disability; and 10 percent for moderate disability.  See 38 C.F.R. § 4.73, Diagnostic Code 5315 (2012).

Schedular Rating

The Veteran is currently service-connected for the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, rated 10 percent disabling.  As noted, under the VA rating schedule, a 10 percent rating is assigned under Diagnostic Code 5315 when the disability is moderate in nature; a higher disability rating is assigned when the disability is moderately severe.

The Board observes in passing that the words "moderate" and "moderately severe" are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just".  See 38 C.F.R. § 4.6 (2012).  Although the word "moderate" is not defined in VA regulations, "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."  See Webster's New World Dictionary, Third College Edition (1988), 871.
In July 1998, the Veteran underwent a neurological evaluation, in part, for his complaints of right pelvic pain secondary to injury in 1993.  At that time, the Veteran reported making a parachute jump in the military when he stretched and tore his right abductor muscle causing significant bruising in the genital region as well as right leg.  This resulted in a significant hematoma that eventually calcified.  The Veteran underwent surgery for removal of the bone growth in the region of the right pubis.  Since the injury, the Veteran noticed a gradual increase in pain in this area that was worse with stretching.  There was also a numbing sensation and pain in the suprapubic and pelvis region with intercourse.  Neurological examination noted mental status and cranial nerves to be intact.  Motor examination showed strength to be normal in the lower extremities with individual muscle testing.  Reflexes were 1 - 2+ symmetrical throughout.  See Private Treatment Record, J.T.M., M.D., July 23, 1998.

In August 1998, magnetic resonance imaging of the Veteran's pelvis revealed the hips and sacroiliac joints to be normal.  The iliopsoas muscles and the obturator and gluteus muscles were symmetric.  No soft tissue masses were detected and no joint effusions were seen.  There was no evidence of fracture or dislocations.  The impression was no evidence of soft tissue, hip or sacroiliac abnormality and no pelvic mass was seen.  See Private Treatment Record, August 3, 1998.  Later in August 1998, the Veteran participated in an electromyographic examination of the lower extremities.  The impression was a normal study of both legs.  See Private Treatment Record, J.T.M., M.D., August 25, 1998.

On the February 1999 VA joints examination, the Veteran reported his in-service injury and subsequent hematoma removal.  Since that time, he stated that he had some weakness with adduction but had no palpable recurrence.  Physical examination indicated the Veteran had a well-healed scar over the pubic symphysis on the right.  There were no palpable masses in this region.  Range of motion of the hips included flexion from zero to 115 degrees bilaterally without pain or crepitation.  The Veteran also had normal physiologic symmetric internal and external rotation, adduction, and abduction.  He had sensation to light tough in all dermatomes in both of his lower extremities.  He had muscle strength of 5/5 of the extensor hallucis longus, tibialis anterior, gastrocsoleus, hamstrings, and hip flexors bilaterally.  He also had good muscular symmetry.  X-rays of the pelvis post-operatively from 1995 showed no recurrence of the adductor mass.  The VA examiner concluded that the Veteran had some residual adductor weakness but otherwise was doing fairly well.  There was no evidence of recurrence of the hematoma.  See VA Joints Examination Report, February 20, 1999.

In October 1999, the Veteran testified before a DRO, sitting at the St. Petersburg, Florida, RO.  At that time, the Veteran stated that following his in-service parachute injury, he experienced pain along the abductor channel, running from the right knee to just above the pubis bone.  Sitting for long periods of time also caused a large knot to form near the Veteran's groin.  The pain associated with this injury caused the Veteran to develop an altered gait.  See DRO Hearing Transcript, October 10, 1999.

In April 2002, in association with the Veteran's VA joints examination, the Veteran underwent X-rays of his hips.  The VA examiner noted that there appeared to be some mild degenerative changes with increased scoliosis over the superior portion of the acetabulum.  See VA Joints Examination Report, April, 2, 2004.

A private orthopedic progress note, dated in August 2007, noted the Veteran's right lower extremity revealed no malalignment and no palpatory tenderness.  There was full active and passive range of motion.  There was no evidence of atrophy and no fasciculation.  Doppler testing of the lower extremities, dated on March 15, 2006, demonstrated normal resting and exercise.  See Private Treatment Record, S.S.H., M.D., August 21, 2007.

The Veteran participated in a VA muscles examination in July 2010.  At that time, the Veteran stated that he had a smaller right thigh muscle than the left, but he had no loss of strength in his right leg.  He endorsed pain in his right hip and low back, which limited his ambulation, but not the muscle of the right leg.  The VA examiner noted the muscle involved was the right abductor muscle.  The Veteran's symptoms at the time of the examination did not include pain, decreased coordination, increased fatigability, weakness, or uncertainty of movement.  There were no flare-ups of muscle injury residuals.  There was no intermuscular scarring and the muscle function was normal in terms of comfort, endurance and strength sufficient to perform activities of daily living.  There were no residuals of nerve damage, tendon damage, or bone damage.  There was no muscle herniation or loss of deep fascia or muscle substance.  Joint motion was not limited by muscle disease or injury.  The VA examiner noted that the right thigh muscle was approximately the same size as the left.  The VA examiner diagnosed the Veteran with status post excision of calcified hematoma of right pubic rami - resolved.  Myo-atrophy of the right leg was also noted as a residual.  See VA Muscles Examination Report, July 6, 2010.

The Veteran also participated in a VA joints examination in July 2010.  Examination of the right hip revealed no deformity and there was no evidence of giving way or instability.  The Veteran endorsed pain, stiffness and weakness but denied incoordination, decreased speed of joint motion, dislocation, subluxation, locking, effusion, inflammation, and flare-ups of joint disease.  The Veteran was able to stand for 15 to 30 minutes and walk one to three miles.  The Veteran's gait was normal and there was no evidence of abnormal weight bearing.  There was no tenderness in the trochanteric or gluteus bursae, dorsalis pedis and post.  Tibialis pulses were intact bilaterally.  See VA Joints Examination Report, July 6, 2010.

Range of motion testing of the right hip revealed the following: flexion from zero to 115 degrees (with pain at 115 degrees); extension from zero to 30 degrees (no pain on active or passive range of motion); adduction from zero to 25 degrees (with pain at 25 degrees); abduction from zero to 45 degrees (no pain on active or passive range of motion); external rotation from zero to 60 degrees (with pain at 60 degrees); and internal rotation from zero to 40 degrees (with pain at 40 degrees).  Other than documented above, there was no objective evidence of pain on range of motion, passive range of motion was unchanged from active range of motion and on repetitive testing, range of motion values were unchanged from baseline values reported and there was no evidence of pain, fatigue, weakness or incoordination.  The VA examiner diagnosed the Veteran with right hip strain.  Id.

As set forth in the law and regulations section above, a moderately severe injury includes objective findings of loss of deep fascia, muscle substance or normal firm resistance of the muscles or diminished strength and endurance.  The Board notes the Veteran's testimony that excessive exercise causes him right hip pain and restricts his ability to engage in the level of exercise and other activities of daily living that he previously enjoyed.  However, as demonstrated above, examinations of the right hip have demonstrated full muscle strength and no loss of sensation associated with the muscle of the right leg.  There was no finding of muscle loss or atrophy.  Despite the Veteran's claims that his right leg was smaller than his left leg, the VA examiner in July 2010 found this was not the case.  

A moderately severe muscle injury also includes findings of debridement, prolonged infection, or sloughing of soft parts and intermuscular scarring.  The Veteran's medical records beginning in service and continuing to the present time fail to note any debridement or infection associated with his in-service excision.  These records are also negative for sloughing of soft parts and intermuscular scarring.  The July 2010 VA examination report specifically noted that there was no intermuscular scarring and the muscle function was normal in terms of comfort, endurance and strength sufficient to perform activities of daily living.  There were no residuals of nerve damage, tendon damage, or bone damage.  There was no muscle herniation or loss of deep fascia or muscle substance.  

Because the veteran has full muscle strength, has no muscle wasting or atrophy, and has not required regular treatment for his excision residuals, a moderately severe muscle injury has not been demonstrated.  A disability rating in excess of the currently assigned 10 percent for the right hip, status post excision, is therefore not warranted under the VA rating schedule.

DeLuca Considerations 

The Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45 (2012).  See DeLuca, supra.

In this case, although there is evidence that the Veteran experiences pain associated with his service-connected right hip disability (particularly with prolonged standing or walking), there is no objective evidence of significant limited movement or other functional loss associated therewith.  As noted above, the Veteran's symptoms at the time of the July 2010 VA examination did not include pain, decreased coordination, increased fatigability, weakness, or uncertainty of movement.  There were no flare-ups of muscle injury residuals.  The Veteran did endorsed pain, stiffness and weakness but denied incoordination, decreased speed of joint motion, dislocation, subluxation, locking, effusion, and inflammation.  

The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as pain.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran to be credible in his reports of the symptoms he experiences.  However, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the previously assigned rating.

The Board has carefully reviewed the Veteran's testimony and contentions and the Board understands fully the Veteran's belief that the severity of his service-connected disability warrants a higher rating.  However, the Board must rely upon competent medical evidence to determine the diagnosis or clinical features of a disease or disorder.  The Board may not draw its own medical conclusions in reaching a decision.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  While the Veteran, as a lay person, is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or the clinical severity of a disability.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Only a medical professional can provide evidence of diagnosis or clinical severity of a disease or disorder, and in this case the preponderance of the competent medical evidence is against the claim.

For these reasons, the Board believes that the Veteran is adequately compensated for such minimal or mild symptomatology with the currently assigned 10 percent disability rating for the residuals of his right hip excision.  No additional compensation for functional loss under 38 C.F.R. §§ 4.40 and 4.45 is warranted based on the objective medical evidence of record.  The Board has considered the applicability of the benefit of the doubt doctrine.  A preponderance of the evidence is against assignment of a higher disability rating than is currently assigned.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Extraschedular Rating

For the sake of economy, the Board will simultaneously discuss consideration of extraschedular ratings for the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, along with the remaining increased rating claims, below.

2.  Cold Injury Residuals with Raynaud's Syndrome

The Veteran contends that he currently suffers from cold injury residuals of the bilateral upper extremities with Raynaud's syndrome that are not adequately compensated by his currently assigned 30 percent disability ratings.

Assignment of Diagnostic Code

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts, supra.  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio, supra.  In this case, the Board has considered whether another rating code is "more appropriate" than those used by the RO.  See Tedeschi, supra.

The Veteran's cold injury residuals of the bilateral upper extremities with Raynaud's syndrome are currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7117-7122 (2012) [Raynaud's syndrome - cold injury residuals].  [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].  The Board has considered whether another rating code is more appropriate, but the assigned diagnostic codes specifically address the disabilities in question.  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate and the Veteran has not requested that another diagnostic code be used.

Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7117-7122.

Schedular Criteria

The Veteran is currently in receipt of a 30 percent disability rating, for each upper extremity, for cold injury residuals with Raynaud's syndrome.  Under Diagnostic Code 7122 [cold injury residuals], this is the maximum available disability rating, assigned for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, c-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).

Diagnostic Code 7117 [Raynaud's syndrome] allows for the assignment of: 40 percent for characteristic attacks occurring at least daily; 60 percent with two or more digital ulcers and history of characteristic attacks; and 100 percent with two or more digital ulcers plus autoamputation of one or more digits and history of characteristic attacks.  For purposes of this section, characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upsets.  These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose and ears are involved.  Id. at Note.

See 38 C.F.R. § 4.104, Diagnostic Codes 7117-7122 (2012).



Schedular Rating

The only medical evidence of record that addresses the Veteran's cold injury residuals consists of the February 1999 VA general medical examination report.  At that time, the Veteran reported that he experienced persistent numbness in a few of his fingers since his in-service cold injury, with the numbness being a sense of sensation that is duller than normal.  Additionally, he complained of easy finger fatigue, with some stiffness in his joints.  He stated that he could not go out in the cold weather at all.  He reported that his knuckles became painful, he had worsening numbness, and experienced color change from red and then lose color completely, consistent with Raynaud's syndrome.  At baseline, even when it was not cold, the Veteran stated he had some decreased sensation at the extreme fingertips.  On physical examination, the Veteran's hands had very mild erythema in the finger pads, but with normal capillary refill.  There was some decreased sensation, though he could feel in the right hand fingertips, just from the distal interphalangeal on, in all the fingers except the fourth, which had normal sensation.  The left hand had normal sensation in the first and second finger.  The fingertips of the third and fifth had a mild numbness.  The Veteran had 2+ radial pulses, normal capillary refill in all fingertips.  The VA examiner diagnosed the Veteran with frostbite of both hands with resultant peripheral neuropathy and Raynaud's phenomena.  Symptomatology included persistent mild numbness, stiffness or early orthopedic problems, with pain whenever exposed to the cold.  See VA General Medical Examination Report, February 20, 1999.

As noted, the Veteran's disability is currently evaluated as 30 percent disabling.  In order to warrant a higher evaluation, there must be evidence of characteristic attacks of Raynaud's syndrome occurring at least daily.  The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran.  See Buchanan, supra; Washington, supra.  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report observable symptoms, such as cold, numbness, pain, and color changes in his extremities (i.e., Raynaud's symptoms).  See, e.g., Layno, supra.  The Board finds the Veteran to be credible in his reports of the symptoms he experiences.  The Board has carefully reviewed the Veteran's own testimony and contentions and the Board understands fully the Veteran's belief that the severity of his service-connected disabilities warrants a higher rating.  However, the Board must rely upon competent medical evidence to determine the diagnosis or clinical features of a disease or disorder.  The Board may not draw its own medical conclusions in reaching a decision.  See Colvin, supra.  However, there is no evidence of record wherein the Veteran complains of symptoms associated with Raynaud's syndrome after the February 1999 VA examination report.

For these reasons, the Board believes that the Veteran is adequately compensated by the currently assigned 30 percent disability ratings for the residuals of upper extremity cold injury exposure with Raynaud's syndrome.  The Board has considered the applicability of the benefit of the doubt doctrine.  A preponderance of the evidence is against assignment of higher disability ratings than are currently assigned.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012); see also Gilbert, supra.

Extraschedular Rating

For the sake of economy, the Board will simultaneously discuss consideration of extraschedular ratings for the residuals of upper extremity cold exposure with Raynaud's syndrome, along with the remaining increased rating claims, below.

3.  Prostatitis with Urethritis and Benign Prostatic Hyperplasia with Nocturia

The Veteran contends that he currently suffers from prostatitis with urethritis and benign prostatic hyperplasia with nocturia that is not adequately compensated by his currently assigned 40 percent disability rating.

Assignment of Diagnostic Code

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts, supra.  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio, supra.  In this case, the Board has considered whether another rating code is "more appropriate" than those used by the RO.  See Tedeschi, supra.

The Veteran's prostatitis with urethritis and benign prostatic hyperplasia with nocturia is currently rated under 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2012).  [Prostate gland injuries, infections, hypertrophy, postoperative residuals].  The Board has considered whether another rating code is more appropriate, but the assigned diagnostic code specifically address the disabilities in question.  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate and the Veteran has not requested that another diagnostic code be used.

Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7527.

Schedular Criteria

Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these.  The following section provides descriptions of various levels of disability in each of these symptom areas.  Where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes.  Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis.  See 38 C.F.R. § 4.115a (2012).

Prostate gland injuries, infections, hypertrophy, postoperative residuals: rate as voiding dysfunction or urinary tract infection, whichever is predominant.  See 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2012).

Voiding dysfunction: Rate particular condition as urine leakage, frequency, or obstructed voiding.  Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day shall be rated 60 percent.  Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day shall be rated 40 percent.  Urinary frequency: Daytime voiding interval less than one hour, or; awakening to void five or more times per night shall be rated 40 percent.  Id.

Schedular Rating

The Veteran's service-connected prostatitis with urethritis and benign prostatic hyperplasia with nocturia is currently rated 40 percent disabling for the entire appeal period.  

As has been noted in the law and regulations section above, prostatitis is rated according to the predominant symptom.  In this case, it appears to be undisputed that the predominant symptom is urinary frequency.  The Veteran was assigned a 40 percent disability rating based on daytime voiding interval less than one hour, or; awakening to void five or more times per night.

In support of this finding, the Board notes that in August 1998, the Veteran was referred to R.W.R., M.D. due to his complicated medical history.  The Veteran reported that many of his problems began following his in-service avulsion fracture in the right ischial tuberosity area, which required surgery to remove a large mass.  The incision was just at the junction of the inner thigh and the perineum.  The Veteran complained of having very frequent voiding.  He also endorsed nocturia five times per night.  He stated that he often felt an intense urge to urinate but was unable to produce any significant amount of urine upon using the restroom.  He had no dysuria or hematuria.  He also stated that he occasionally had a "drop or two" of urine on his underwear.  Dr. R.W.R. diagnosed the Veteran with urinary frequency and nocturia.  See Private Treatment Record, R.W.R., M.D., August 19, 1998.  

In September 1998, the Veteran underwent cystourethroscopy, marsupialization of small urethral diverticulum, and instillation of bacitracin solution into bladder and urethra.  Prior to this surgery, the Veteran was diagnosed with urinary frequency and nocturia.  Post-operatively, the Veteran was diagnosed with urethritis, prostatitis, small periurethral diverticulum, benign prostatic hyperplasia, with bladder outlet obstruction, and trigonitis.  See Private Treatment Record, Operative Report, R.W.R., M.D., September 2, 1998.

During his February 1999 VA genitourinary examination, the Veteran reported a history of urethritis and prostatitis, for which he was treated by cystoscopy.  He also endorsed a history of irritable voiding symptoms.  He was getting up approximately five times per night and having a decreased force of stream, hesitancy and intermittency.  He was treated with 1 milligram of Cardura for this and had excellent results.  His medications included Cardura, Viagra and Ditropan.  Rectal examination demonstrated a prostate without nodules or tenderness.  The VA examiner's assessment was a history of urolithiasis, benign prostatic hypertrophy and decreased libido.  These were all responding well to current treatment.  See VA Genitourinary Examination Report, February 20, 1999.

The Board notes that, in order to receive the next higher (60 percent) disability rating under 38 C.F.R. § 4.115b, it must be demonstrated that there exists urinary leakage requiring the use of an appliance or the wearing of absorbent material which must be changed more than 4 times per day.  

A private neurology note, dated in June 2006, noted the Veteran was suffering from occasional involuntary bowel movements.  This had occurred twice in the prior year, but there was chronic staining of the underwear due to incomplete evacuation.  He denied lack of sensation in the perianal region.  The examiner's impression was status post pelvic/thigh surgery, with history of calcified mass after trauma in the right thigh and pelvis.  Likely this led to nerve damage leading to chronic impotence and probably also to mild bowel incontinence.  It was also noted that such a presentation would be consistent with cauda equine syndrome (partial) or conus medullaris lesion.  See Private Treatment Record, D.A., M.D., June 20, 2006.

In November 2006, the Veteran was seen by R.W.R., M.D., stating that his quality of life was terrible due to urinary symptoms.  He stated that he voided approximately 20 minutes in the past few days.  He also endorsed nocturia five times per night.  Physical examination of the scrotum, testes, epididymides, spermatic cords, penis, urethral meatus and perineum were all within normal limits.  Examination of the anus was within normal limits.  Digital rectal examination revealed the prostate to be about 15 to 18 gm, nonnodular and nontender.  No other rectal masses were noted.  Seminal vesicles were not palpable.  The assessment was flank pain of undetermined etiology, pelvic floor myalgia, erectile dysfunction, and benign prostatic hyperplasia with bladder outlet obstruction.  See Private Treatment Record, R.W.R., M.D., November 9, 2006.

Despite the Veteran's June 2006 complaints of periodic involuntary bowel movements (twice in the prior year), there is no indication in the medical evidence, nor has the Veteran contended, that he requires the use of absorbent materials, which must be changed more than four times daily or that the Veteran requires the use of an appliance.  A 60 percent disability rating is therefore not warranted.

For these reasons, the Board believes that the Veteran is adequately compensated by the currently assigned 40 percent disability rating for prostatitis with urethritis and benign prostatic hyperplasia with nocturia.  The Board has considered the applicability of the benefit of the doubt doctrine.  A preponderance of the evidence is against assignment of a higher disability rating than is currently assigned.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012); see also Gilbert, supra.

Extraschedular Rating

For the sake of economy, the Board will simultaneously discuss consideration of extraschedular ratings for the residuals of upper extremity cold exposure with Raynaud's syndrome, along with the remaining increased rating claims, below.

IV.  Increased Disability Ratings - Extraschedular Criteria

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

Concerning marked interference with employment, the Board notes that the Veteran is retired and not currently employed.  See Travel Board Hearing Transcript, May 16, 2012.  However, the Veteran has not contended, nor does the medical evidence demonstrate that he is unable to maintain gainful employment as a result of the service-connected disabilities presently on appeal.

The record does not indicate that the Veteran has received in-patient treatment due to his residuals of cold injury exposure, excised calcified hematoma residuals or prostatitis during the appeal period.  Additionally, the Board has not identified an exceptional or unusual clinical picture as a result of the aforementioned service-connected disabilities.  Nor is there any other aspect of any of the aforementioned service-connected disabilities that may be characterized as exceptional or unusual.

Accordingly, the record does not demonstrate any other reason why extraschedular ratings should be assigned.  As there is no factor which takes the disabilities outside the usual rating criteria, the Board has therefore determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

In short, the evidence does not support the proposition that the Veteran's service-connected disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of extraschedular ratings under 38 C.F.R. § 3.321(b)(1) (2012). 


ORDER

The claim of entitlement to an initial disability rating in excess of 10 percent for a right ankle disability is dismissed.

Entitlement to an initial disability rating in excess of 10 percent for the residuals of an excised calcified hematoma, right pubic rami, with history of myo-atrophy of the right hip, is denied.

Entitlement to an initial disability rating in excess of 30 percent for the residuals of left upper extremity cold exposure with Raynaud's syndrome is denied.

Entitlement to an initial disability rating in excess of 30 percent for the residuals of right upper extremity cold exposure with Raynaud's syndrome is denied.

Entitlement to an initial disability rating in excess of 40 percent for prostatitis with urethritis and benign prostatic hyperplasia with nocturia is denied.






REMAND

The Board is cognizant of the fact that the Veteran's case has been in adjudicative status since 1999, and it has already been remanded in the past.  Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims.

Earlier Effective Date for Chronic Allergic Rhinitis

The Veteran filed his original claim of entitlement to service connection for allergic rhinitis symptomatology with asthma and history of upper respiratory infections in November 1997.  The January 1998 rating decision did not address this issue.  The Veteran submitted a statement in April 1998, indicating that this issue had not been adjudicated.  An August 1999 rating decision denied the claim.  A statement of the case was issued in August 1999 and the Veteran timely perfected his appeal in October 1999.  Subsequently, an October 1999 rating decision granted the Veteran's claim and assigned a noncompensable disability rating, effective November 1, 1997.  In January 2000, the Veteran submitted a notice of disagreement with this noncompensable disability rating.  The RO took no further action.

The Veteran submitted additional evidence and again stated that his service-connected allergic rhinitis symptomatology was more severe than contemplated by his noncompensable disability rating on August 26, 2004.  The RO construed this statement as a new increased rating claim and in August 2005, granted the Veteran's claim, increasing his disability rating from noncompensable to 30 percent disabling, effective from August 26, 2004, the presumed date of claim.  In September 2005, the Veteran submitted a statement indicating that he disagreed with the effective date of the 30 percent disability rating.  A statement of the case was issued in May 2008, addressing the question of entitlement to an earlier effective date for allergic rhinitis symptomatology.  In September 2009, the Board remanded this issue for further evidentiary development.  A supplemental statement of the case was issued in April 2011.

The Board finds that this issue has been improperly categorized as an earlier effective date claim, when in fact, it is now a staged initial rating claim.  Specifically, the claim should be delineated as one for entitlement to an initial compensable disability rating for allergic rhinitis symptomatology with asthma and history of upper respiratory infections prior to August 26, 2004; and in excess of 30 percent thereafter.  As the Veteran has been afforded neither appropriate notice nor a statement of the case addressing the evidence between the October 1999 rating decision (which granted service connection) and the August 2004 statement that was inaccurately construed as a new claim, the claim must be remanded and readjudicated in compliance with this recharacterization.

Lumbar and Thoracic Spine Disabilities

Initially, the Board notes that the disability ratings assigned for the Veteran's degenerative disc disease of his lumbar and thoracic spine have been combined and are presently considered 60 percent disabling.  Based on the fact that the spinal segments are rated separately in the diagnostic code, and the fact that the regulations have changed during the pendency of this appeal, these claims must be returned to the RO/AMC to be separated and readjudicated separately to afford the Veteran the opportunity to obtain the highest disability rating possible for both his lumbar and thoracic spine disabilities.

Manlincon v. West

The Veteran has also advanced claims of entitlement to an initial disability rating in excess of 20 percent for tendonitis of the left (minor) shoulder rotator cuff and entitlement to compensable disability ratings for left knee chondromalacia, right knee chondromalacia and granuloma annulare (claimed as shingles).  These claims were denied by the RO and the Veteran subsequently submitted the appropriate notices of disagreement.  Since the filing of a notice of disagreement initiates appellate review, these claims must be remanded for the preparation of a statement of the case.  See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC is requested to provide the Veteran with notice of VA's duties to notify and assist him with respect to his claim of entitlement to an initial compensable disability rating for allergic rhinitis symptomatology with asthma and history of upper respiratory infections prior to August 26, 2004; and in excess of 30 percent thereafter.

2.  The RO/AMC is requested to separate the Veteran's service-connected lumbar and thoracic spine disabilities and rate each spinal segment separately under the appropriate diagnostic code.  

3.  The RO/AMC is requested to prepare and provide the Veteran with statements of the case for the issues of entitlement to an initial disability rating in excess of 20 percent for tendonitis of the left (minor) shoulder rotator cuff and entitlement to compensable disability ratings for left knee chondromalacia, right knee chondromalacia and granuloma annulare (claimed as shingles).  The Veteran should be informed that he must file a timely and adequate Substantive Appeal in order to perfect an appeal of these issues to the Board.  If a timely Substantive Appeal is not filed, the claims should not be certified to the Board.

4.  The Veteran's claim of entitlement to an increased disability rating for his allergic rhinitis should be characterized as follows: entitlement to an initial compensable disability rating for allergic rhinitis symptomatology with asthma and history of upper respiratory infections prior to August 26, 2004; and in excess of 30 percent thereafter.  After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

5.  With respect to the Veteran's lumbar and thoracic spine claims, after completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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

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



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs