Citation Nr: 1310472	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  07-05 295	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a heart disorder.

2.  Entitlement to a rating in excess of 20 percent for status post fracture of the left elbow with traumatic arthritis (left elbow disability).

3.  Entitlement to an increased rating for right knee chondromalacia, rated as 20 percent disabling prior to March 1, 2007 and as 10 percent disabling from March 1, 2007, to include the propriety of the reduction from 20 percent to 10 percent effective March 1, 2007.

4.  Entitlement to an increased rating for left knee chondromalacia, rated as 20 percent disabling prior to March 1, 2007 and as 10 percent disabling from March 1, 2007, to include the propriety of the reduction from 20 percent to 10 percent effective March 1, 2007.

5.  Entitlement to an increased rating for left ulnar radiculopathy, rated as 10 percent disabling prior to January 20, 2009 and as 20 percent disabling from January 20, 2009.
6.  Entitlement to a rating in excess of 10 percent for a fungal infection of the feet and groin.

7.  Entitlement to a rating in excess of 10 percent for a left foot disability, status post fractures of the second, third, and fourth toes.

8.  Entitlement to a compensable rating for chronic bronchitis.

9.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from January 1973 to February 1993.  In July 2011, the Board of Veterans' Appeals (Board) remanded the issues listed on the title page to the Department of Veterans Affairs (VA) regional office in St. Petersburg, Florida (RO) to obtain written copies of the Veteran's Social Security Administration records and to provide the Veteran with a Supplemental Statement of the Case (SSOC).  Copies of the Veteran's SSA records were added to the claims files and an up-to-date SSOC was provided to the Veteran in October 2012.

As the SSA records were obtained and added to the claims files and a current SSOC was provided to the Veteran, there has been substantial compliance with the July 2011 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). 

A December 2011 rating decision granted served connected for a mood disorder and assigned a 30 percent rating effective January 15, 2010; an October 2012 rating decision granted service connection for a left shoulder disorder and assigned a 20 percent rating effective April 8, 2011.  

The issue of entitlement to TDIU is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC.  


FINDINGS OF FACT

1.  The Veteran does not have a heart disorder that is causally related to his active military service.

2.  The Veteran's left elbow disability is manifested by slight limitation of motion with pain. 

3.  An April 2005 rating decision granted an increased rating of 20 percent for each knee disability, effective January 26, 2005. 

4.  A February 2006 VA examination revealed bilateral knee range of motion from 0 to 130 degrees, with pain beginning at 130 degrees.
5.  In a June 2006 rating decision, the RO proposed a reduction in the rating for each of the Veteran's service-connected knee disabilities from 20 percent to 10 percent; the RO notified the Veteran of this proposed action in a June 2006 letter. 

6.  A December 2006 rating decision reduced the 20 percent rating for each knee disability to 10 percent, effective March 1, 2007. 

7.  The medical evidence does not show more than mild incomplete paralysis of the left upper extremity prior to January 20, 2009 and more than moderate incomplete paralysis of the left upper extremity beginning January 20, 2009.

8.  The Veteran's skin disorder does not involve any functional impairment and covers less than one percent of the total body area or exposed area.

9.  There is no more than moderate impairment of the left foot.

10.  Pulmonary testing in February 2006 showed Forced Expiratory Volume in one second (FEV-1) of 79.3 percent of predicted; FEV-1 was 102.1 in January 2009.  For the entire appeal period, the Veteran's service-connected bronchitis has been manifested by FEV-1/Forced Vital Capacity (FVC) ratio of no less than 80 percent predicted, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of no less than 76 percent predicted, on pulmonary function testing.


CONCLUSIONS OF LAW

1.  A heart disorder was not incurred during active service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  


2.  The criteria for the assignment of a rating in excess of 20 percent for postoperative residuals of the left elbow with degenerative joint disease have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes 5010-5206 (2012). 

3.  The criteria for an increased evaluation for right knee chondromalacia, rated as 20 percent disabling prior to March 1, 2007 and as 10 percent disabling from March 1, 2007, have not been met; and the reduction from 20 percent to 10 percent effective March 1, 2007 was proper.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2012).

4.  The criteria for an increased evaluation for left knee chondromalacia, rated as 20 percent disabling prior to March 1, 2007 and as 10 percent disabling from March 1, 2007, have not been met; and the reduction from 20 percent to 10 percent effective March 1, 2007 was proper.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2012).

5.  The criteria for the assignment of an evaluation in excess of 10 percent prior to January 20, 2009 and in excess of 20 percent beginning January 20, 2009 for left ulnar radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 3.159, 3.321, 4.7, 4.124a, including Diagnostic Code 8516 (2012).

6.  The criteria for an evaluation in excess of 10 percent for service-connected left foot disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.71a, Diagnostic Code 5284 (2012).

7.  The criteria for the assignment of a rating in excess of 10 percent for a fungal infection of the feet and groin have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.118, Diagnostic Codes 7813, 7806 (2012).

8.  The criteria for a compensable rating for bronchitis prior to February 2, 2006 have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6600 (2012).
9.  The criteria for a rating of 10 percent, but no higher, for bronchitis from February 2, 2006 through January 19, 2009 have been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6600 (2012).

10.  The criteria for a compensable rating for bronchitis beginning January 20, 2009 have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6600 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. 

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO sent the Veteran a letter in August 2005, prior to adjudication, which informed him of the requirements needed to reopen a claim for service connection, as well as the requirements needed for entitlement to service connection.  The Veteran's claim to reopen was granted by the Board in January 2011.  

With respect to the increased rating issues on appeal, notice to the Veteran was not sent in this case until later in the claims process.  However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121.  A letter was sent to the Veteran in July 2006 that informed him of the requirements needed to establish entitlement to an increased rating.  In compliance with the duty to notify, the Veteran was informed in the July 2006 letter about disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In accordance with the requirements of VCAA, the above-noted letters informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility.  Additional private evidence was subsequently added to the claims files after the letters.  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA evaluation with nexus opinion was obtained on the service connection issue on appeal in April 2011.  VA evaluations of the increased rating issues on appeal were conducted in February 2006, February 2008, January 2009, and April 2011.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the April 2011 VA opinion obtained in this case is adequate, as it is predicated on a reading of medical records in the Veteran's claims file and physical examination findings and provides a supporting rationale.  The medical findings on the increased rating issues on appeal are also sufficient for rating purposes because these evaluations provide current findings on the Veteran's knees, left elbow, left arm neuropathy, skin condition, bronchitis, and left foot disorder.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).  The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein.  

The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his January 2010 videoconference hearing.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  

The Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony.  At the January 2010 videoconference hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument.  The transcript reveals an appropriate colloquy between the Veteran and the undersigned, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence).  The Veteran was asked to provide relevant testimony on how his heart disorder was incurred and on the severity of the service-connected disabilities at issue.


Analysis of the Claims

Service Connection Claim

The Veteran seeks service connection for a heart disorder.  Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

In the case of heart disease, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

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).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran's service treatment reports reveal that a functional heart murmur was reported in November 1976.  Sinus bradycardia was noted on EKG testing in December 1980, October 1984, and November 1989.  A cardiac evaluation in November 1989 was considered normal.  The assessment in December 1989 was benign flow murmur, with no evidence of organic heart disease.  According to an undated report, which appears to be in 1990 because the Veteran is noted to be 36 years old, the Veteran had sinus bradycardia with a repolarization abnormality.  A functional heart murmur was reported on the Veteran's November 1992 retirement medical history report; his heart and vascular system were normal on medical evaluation in November 1992.

It was noted on VA heart evaluation in April 1993 that no murmur was heard and that there was no evidence of cardiac problems.  The Veteran's heart was not enlarged on chest X-rays in January 1994.  Another VA heart evaluation was conducted in February 1994.  The diagnoses were heart condition, not found; and history of heart murmur, not found.

VA treatment records from August 2003 to April 2004 reveal a normal Doppler echocardiogram, with mild LV dilatation in August 2003.  The assessment in September 2003 was paroxysmal atrial fibrillation.
Private treatment records for March 2005 reveal impressions of bilateral atrial enlargement and mild mitral and tricuspid regurgitation.  According to an October 2005 statement from H. A. Hazlitt, M.D., the Veteran had paroxysmal atrial fibrillation and atrial flutter, very likely present for 10-20 years.  

A VA heart evaluation, which included review of the claims files, was conducted in April 2011.  The diagnosis was that the Veteran had atrial fibrillation but that there was no evidence for a heart murmur.  The examiner concluded that the Veteran's atrial fibrillation was not caused by or the result of a heart disorder incurred in service because there was no medical evidence of atrial fibrillation in service or for several year after service discharge.

The Veteran testified at his videoconference hearing in January 2010 that he had heart problems in service that are causally related to his current heart disorder.  

There is evidence on file both for and against the Veteran's claim for service connection for heart disability.  The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).  

The Board finds the April 2011 2009 VA nexus opinion against the claim to be of more probative value, when considered along with the other evidence of record, than the October 2005 statement from Dr. Hazlitt in favor of the claim.  

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

In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see  D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history).

Although Dr. Hazlitt concluded in October 2005 that the Veteran's paroxysmal atrial fibrillation and atrial flutter had very likely been present for 10 to 20 years, this opinion is not based on a review of the claims files and does not include a supporting rationale.  In contrast, the April 2011 opinion is based on a review of the claims files and includes a supporting rationale, with the rationale being that there was no evidence of atrial fibrillation in service of for several years after discharge.  Consequently, the Board finds the April 2011 VA opinion to be more probative than Dr. Hazlitt's October 2005 opinion.  Although the VA examiner in April 2011 indicated that he reviewed the claims folder, he did not refer to Dr. Hazlitt's October 2005 opinion and may not have reviewed it; however, the VA examiner was not required to review Dr. Hazlitt's opinion prior to providing a nexus opinion; in fact, Dr. Hazlitt did not provide a rationale upon which the VA examiner could comment.  Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners).

The hearing testimony and lay statements from the Veteran have been taken into consideration in this decision.  Although the Veteran is competent to report his heart symptoms, he is clearly not competent to report that he has heart disease due to service.  Laypersons are not competent to provide evidence in certain medical situations, such as a case involving the etiology of heart disease.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Although the Veteran has contended that he had a heart murmur in service and that his atrial fibrillation is due to service, the medical evidence does not support his contentions.  Although there are notations of a heart murmur in service, the Veteran's heart was noted to be normal, including on discharge medical evaluation in November 1992.  A heart murmur was not found on post-service VA evaluations in April 1993 and February 1994, and atrial fibrillation was not reported until several years after service discharge.  

Finally, in denying this issue, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claim denied above, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Increased Rating Claims

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  

In considering the severity of a disability it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

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.  38 C.F.R. § 4.7 (2012).  

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  See 38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

In the selection of diagnostic codes assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  38 C.F.R. § 4.27 (2012).  
The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  See Butts v. Brown, 5 Vet. App. 532 (1993).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). 

Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). 

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, no added under diagnostic code 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, a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation.  A 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  38 U.S.C.A. § 4 .71a, Diagnostic Code 5003 (2012). 

Left Elbow

An August 1993 rating decision granted service connection for left elbow disability and assigned a 20 percent rating effective March 1, 1993 under Diagnostic Codes 5209-5010.  The applicable diagnostic codes were subsequently changed to Diagnostic Codes 5010-5206.

When flexion of the forearm of the minor extremity is limited to 45 degrees, a 40 percent evaluation may be assigned.  When limited to 55 degrees, a 30 percent evaluation is assignable.  When flexion is limited to 70 or 90 degrees, a 20 percent evaluation may be assigned.  When flexion is limited to 100 degrees, a 10 percent evaluation may be assigned.  When limited to 110 degrees, a noncompensable evaluation may be assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5206 (2012). 

A 40 percent evaluation is assignable for limitation of extension of the forearm of the minor extremity to 110 degrees.  A 30 percent evaluation may be assigned when extension is limited to 100 degrees.  When extension is limited to 90 or 75 degrees, a 20 percent evaluation may be assigned.  A 10 percent evaluation may be assigned when extension is limited to 60 or 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5207 (2012). 

Limitation of supination of the forearm to 30 degrees or less for the major or minor extremity warrants a 10 percent rating.  Limitation of pronation of the forearm that is lost beyond the last quarter of the arc and the hand does not approach full pronation warrants a 20 percent rating for the major or minor extremity.  Motion lost beyond the middle of the arc warrants a 30 percent rating for the major extremity and a 20 percent evaluation for the minor extremity.  Bone fusion with loss of supination and pronation of the forearm warrants a 40 percent rating for the major extremity and a 30 percent evaluation for the minor extremity.  38 C.F.R. 4.71a, Diagnostic Code 5213 (2012). 

The record establishes that the Veteran is right-handed. 

The Veteran complained on VA evaluation in February 2006 of left elbow pain with overuse, which impaired his ability to lift things at work and affected his daily activities related to repetitive overuse of the left upper extremity.  Range of motion of the left elbow was from 5 degrees to 130 degrees, with pain at 130 degrees.  There was no additional loss of motion on repetitive testing.  The diagnosis was fracture of the left elbow with X-ray evidence of minimal degenerative joint disease.

On VA evaluation if the left elbow in February 2008, there was no deformity, giving way, instability, or weakness.  Flexion was from 15 to 120 degrees, with pain beginning at 110 degrees; pronation was from 0 to 75 degrees, without pain, and supination was from 0 to 70 degrees, with pain beginning at 60 degrees.  X-rays showed minimal degenerative joint disease.  The examiner found that the Veteran's left elbow disability caused no more than a mild effect on his daily activities.

The Veteran complained on VA evaluation in January 2009 of daily left elbow pain without flare-ups.  There was no effect on occupation or activities of daily living except for pain and difficulty lifting heavy objects with his left arm.  Physical examination revealed tenderness on palpation.  Motion of the left elbow was from 5 to 120 degrees, with supination and pronation from 0 to 70 degrees.  There was pain at the extremes of motion.  There was no additional loss on repetitive motion.  There was reduced sensation but no muscle atrophy of the left forearm.  A fracture of the left elbow was diagnosed.

The Veteran testified at his videoconference hearing in January 2010 that he has left elbow pain of 8 out of 10 with loss of motion.  

The Veteran complained on VA evaluation in April 2011 of progression of his left elbow disability with pain, weakness, deformity, giving way, instability, and incoordination.  Physical examination of the left elbow did not reveal any objective evidence of crepitus, edema, effusion, instability, tenderness, redness, heat, abnormal movement, guarding of movement, deformity, malalignment, bony joint enlargement, pain at rest, or weakness.  Range of motion of the left elbow included flexion from 0 to 70 degrees, extension from 0 to 40 degrees, pronation from 0 to 70 degrees, and supination from 0 to 40 degrees.  There was no evidence of pain or additional loss of motion following repetitive motion.  Status post left elbow fracture was diagnosed.  

The above evidence does not show the symptomatology required for a rating in excess of 20 percent for left elbow disability, which is the minor extremity, at any time during the appeal period, based on loss of motion, as flexion was to at least 70 degrees and extension was to at least 40 degrees on the evaluations noted above.  

The evidence supporting the Veteran's claim consists of his statements regarding the severity of the left elbow disability.  In contrast, the Board concludes the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left elbow disability and fail to demonstrate that a rating in excess of 20 percent is warranted.  In sum, the findings required for a higher rating for the left elbow disability have not been shown. 

A higher rating is also not warranted under Diagnostic Code 5010 for arthritis, as the current 20 percent rating is the maximum rating provided under Diagnostic Codes 5010-5003 for arthritis.

The medical evidence also does not show left elbow symptomatology that, based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for an increased evaluation at any time during the appeal because there was no additional limitation of motion on repetitive testing on any of the above-noted VA evaluations.  

The Board has considered the possibility of staged ratings.  See Francisco; Hart, both supra.  The Board, however, concludes that the Veteran's service-connected left elbow disability has, based on the above evidence of record, been no more or less disabling during the appellate period.  Accordingly, staged ratings are inapplicable.   

The Veteran is competent to report his left elbow symptoms, including pain and loss of motion.  His complaints are also credible to the extent that they reflect pain.  The Veteran's complaints have been considered in the above decision.  However, the evidence does not show the severity required for a rating in excess of 20 percent under the applicable diagnostic codes.   


Bilateral Knee

An August 1993 rating decision granted service connection for chondromalacia patella of each knee and assigned separate 10 percent ratings effective March 1, 1993 under Diagnostic Code 5257.  An April 2005 rating decision granted a 20 percent rating for chondromalacia of the right patella with meniscal tear of the right knee and a 20 percent rating for chondromalacia of the left patella with degenerative changes of the left knee; these grants were effective January 26, 2005.

Based on the findings of a VA examination conducted in February 2006, by rating action dated in June 2006, the RO proposed to reduce the 20 percent evaluation assigned for each knee disability to a 10 percent rating.  The Veteran was informed later in June 2006 of the proposed action and of his right to submit evidence showing the change should not be made.  He was given 60 days to submit information.  The proposed reduction was effectuated by a December 2006 rating action.  The 10 percent evaluation assigned for each knee disability was effective March 1, 2007. 

The resolution of the claims for the left and right knee disabilities involves the application of identical law to similar facts.  Therefore, the issues will be handled together for the sake of economy. 

Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  It is essential that the entire record of examination and the 
medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.  Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.  Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  38 C.F.R. 
§ 3.344(a) (2012). 

The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  Reexamination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  38 C.F.R. § 3.344(c) (2012). 

The Board notes that the 20 percent rating for each knee was not in effect for more than five years and, therefore, the provisions of 38 C.F.R. § 3.344(a) are not applicable. 

Diagnostic Code 5256 addresses ankylosis of the knee and authorizes ratings from 30 to 60 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012).

Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability.  Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).

Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012).

Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic.  38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012).

Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012).  

Diagnostic Code 5261, limitation of extension, of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2012) (showing normal flexion and extension as between 0 degrees and 140 degrees).  

Under Diagnostic Code 5262, a 40 percent is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability and a 20 percent is assigned for moderate knee or ankle disability.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012).

A January 2005 MRI of the left knee showed degenerative changes.  When seen by VA in February 2005, the Veteran reported that he had difficulty walking up inclines and stairs, that he could not squat, that he could not walk more than a mile without stopping, and that he had daily flare-ups of left knee pain.  He wore knee braces.  There was no incapacitation.  The diagnoses were chondromalacia of both patellae, degenerative joint disease of the left knee, and meniscal tear of the medial aspect of the right knee.

The Veteran complained on VA evaluation in February 2006 of constant bilateral knee pain, worse with activity.  He used a bilateral knee brace, which helped.  He noted that he had worked as a real estate agent until approximately a year prior to the examination, when he quit because of his medical problems, including his knees.  On physical examination, the Veteran complained of bilateral tenderness.  There was no instability.  Range of motion was from 0 to 130 degrees bilaterally, with pain bilaterally at 130 degrees.  There was no additional range of motion loss due to pain, fatigue, weakness, or lack of endurance following repetitive use.  The diagnosis was bilateral internal derangement of the knees, mild to moderate, status post arthroscopic procedure of the right knee.

The Veteran complained on VA evaluation in January 2009 of constant bilateral knee pain.  He used a bilateral knee brace and took hydrocodone, both of which helped.  There was no effect on occupation or activities of daily living except for pain; he avoided exercise and sports.  On physical examination, there was bilateral tenderness but no instability.  Motion was from 0 to 130 degrees bilaterally, with pain bilaterally at 130 degrees.  There was no additional range of motion loss due to pain, fatigue, weakness, or lack of endurance following repetitive use.  The diagnoses were chondromalacia patellae of the right knee with a meniscal tear and chondromalacia patellae of the left knee with meniscal degeneration.  

The Veteran testified at his January 2010 videoconference hearing that he had sharp pain in both knees, level 8 out of 10, with limited motion and loose motion and that his right knee gave out.

The Veteran complained on VA knee evaluation in April 2011 of bilateral pain, giving way, instability, stiffness, weakness, effusion, and inflammation.  He also reported 1-3 episodes a month of dislocation or subluxation and of locking.  He was able to stand for 15-30 minutes and able to walk more than 1/4 mile but less than one mile.  He always wore a knee brace.  Physical examination did not show any objective evidence of edema, effusion, instability, tenderness, redness, heat, abnormal movement, guarding of movement, deformity, malalignment, bony joint enlargement, pain at rest, or weakness.  Bilateral range of motion was from 0 degrees of extension to 90 degrees of flexion.  There was no objective evidence of pain following repetitive motion, and there were no additional limitation of range of motion after repetitive testing.  X-rays of the knees in July 2010 showed bilateral minimal degenerative joint disease.  Bilateral knee arthritis was diagnosed.  The Veteran's knee disability caused a moderate effect on exercise, sports, and recreation and a mild effect on chores, shopping, and traveling.  There was no effect on feeding, bathing, dressing, using the toilet, grooming, and driving.

The Board finds that, based on the medical evidence of record, a rating in excess of 20 percent is not warranted prior to March 1, 2007 and a rating in excess of 10 percent is not warranted beginning March 1, 2007.  Despite the Veteran's complaints of instability in April 2011, the medical evidence does not show any recurrent subluxation or lateral instability of either knee.  Consequently, a rating in excess of 10 percent is not warranted for either knee at any time during the appeal period under Diagnostic Code 5257.  Additionally, a rating in excess of 10 percent is not warranted for either knee at any time during the appeal period under Diagnostic Codes 5260 and 5261, for loss of motion, as range of motion of the knees throughout the appeal period is at least from 0 to 90 degrees, which would warrant a noncompensable rating under the schedular criteria for loss of motion of the knees.  Therefore, the reduction from 20 to 10 percent for each knee, effective March 1, 2007, was proper.

As previously noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The medical evidence does not show knee symptomatology that, based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for an increased evaluation at any time during the appeal because there was no additional limitation of motion of either knee on repetitive testing on VA evaluations in February 2006, January 2009, and April 2011.  

In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257 (2012).  Although the Veteran is assigned a compensable rating for each knee under the diagnostic code for instability, the medical evidence on file does not show any knee instability.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (Observing that it is the Board's responsibility to evaluate the probative value of all evidence presented).  Consequently, separate compensable evaluations are not warranted for instability and loss of motion of either knee.   

As neither limitation of flexion nor limitation of extension of the left knee is severe enough, by itself, to warrant a compensable evaluation under the rating schedule, a higher rating is also not warranted for either knee disability based on VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004), which involves rating compensable limitation of flexion and extension of the leg as separate disabilities under Diagnostic Codes 5260 and 5261.  

Because there is no evidence of ankylosis or malunion of the tibia and fibula, a higher evaluation is not warranted under another diagnostic code for the knee.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262.

In this case, the Veteran is competent to report his bilateral knee symptoms, which include pain and loss of motion.  His complaints are also credible to the extent that they reflect pain.  The Veteran's complaints have been considered in the above decision.  The evidence does not show the severity required for a rating in excess of 20 percent prior to July 1, 2007 or in excess of 10 percent beginning July 1, 2007 based on the applicable symptomatology under the applicable rating codes for the knee.   


Left Ulnar Radiculopathy

A March 2000 rating decision granted service connection for left ulnar nerve radiculopathy, as secondary to service-connected status-post fracture of the left elbow with traumatic arthritis, and assigned a 10 percent rating effective November 26, 1999 under Diagnostic Code 8516.  A March 2009 rating decision granted a 20 percent rating for left ulnar nerve neuropathy effective January 20, 2009 under Diagnostic Code 8516.

Under Diagnostic Code 8516, complete paralysis of the ulnar nerve is defined as where there is a "griffin claw" deformity due to flexor contraction of the ring and little fingers, atrophy is very marked in dorsal interspace and thenar and hypothenar eminences; there is loss of extension of the ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; and flexion of the wrist is weakened.  Complete paralysis warrants a 50 percent rating if affecting the minor extremity, and a 60 percent rating if the major extremity is involved.  Where there is severe incomplete paralysis, this warrants a 30 percent rating for a minor extremity, and 40 percent for a major extremity.  Moderate incomplete paralysis corresponds to a 20 percent rating for a minor extremity, and 30 percent for a major extremity.  Mild incomplete paralysis warrants a 10 percent rating for both a minor and major extremity.  Generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function.  In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120, Diagnostic Code 8515 (2012).

A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis" where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  Id.  

The words "mild," "moderate," and "severe" are not defined in the above rating criteria.  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).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis.  38 C.F.R. § 4.123 (2012).  

Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  38 C.F.R. § 4.124 (2012).  See nerve involved for diagnostic code number and rating.  

The Veteran complained on VA evaluation in February 2006 of decreased sensation in the left forearm and numbness in the ring and small fingers of the left hand.  He was not taking any medication for this disability.  Neurological examination of the left upper extremity was unremarkable except for decreased sensation to touch and pinprick in the left forearm and small and ring fingers of the left hand.  He had a good hand grasp, and there was no motor deficit or muscle atrophy.  The diagnosis was radiculopathy of the left ulnar nerve secondary to left elbow fracture.

The Veteran complained on VA evaluation on January 20, 2009 of decreased sensation and weakness in the left forearm.  He had difficulty lifting heavy objects with his left upper extremity.  Neurological examination of the left upper extremity revealed mild weakness, with 4/5 flexion of the left elbow and of grasp and fist of the left hand.  Sensation to touch and pinprick was reduced in the left forearm as compared to the right, mainly in the ulna distribution.  There was no muscle atrophy, and deep tendon reflexes were 2+ and equal bilaterally.  Left ulnar nerve radiculopathy was diagnosed.

The Veteran testified at his January 2010 videoconference hearing that he had pain and numbness in the left upper extremity that caused him to drop things and caused difficulty sleeping.  He also testified that the disability adversely affected his quality of life.  


When examined by VA in April 2011, left upper extremity reflexes were normal at 2+.  Motor testing of the left upper extremity revealed 4/5 elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, finger abduction, and finger opposition.  This means that there was active movement against some resistance but not against full resistance.  It was noted that the Veteran had left ulnar nerve weakness with decrease in the muscle strength of the left forearm.  There was no muscle atrophy, paralysis, neuritis, or neuralgia.  Left ulnar neuropathy was diagnosed.  This condition affected the Veteran's employment and daily activities because of his inability to lift heavy objects with the left upper extremity.

The Board does not find evidence indicative of more than mild incomplete paralysis of the left upper extremity prior to January 20, 2009.  The relevant medical evidence prior to January 2009 primarily involves the February 2006 VA evaluation, where it was reported that the left upper extremity was unremarkable except for decreased sensation to touch and pinprick in the left forearm and small and ring fingers of the left hand.  The Veteran had a good hand grasp, and there was no motor deficit or muscle atrophy.  The Veteran's neurological symptoms were worse on evaluation in January 2009, and the Veteran was granted a 20 percent rating for moderate incomplete paralysis of the left upper extremity.  However, the evidence beginning January 20, 2009 does not show more than moderate incomplete paralysis of the left upper extremity.  Even though there was a decrease in motor function of the left upper extremity to 4/5, with problems lifting heavy objects, this still allowed active movement against some resistance.  Moreover, there was no muscle atrophy, paralysis, neuritis, or neuralgia found on evaluation in April 2011.

The Veteran is competent to report his symptoms involving left ulnar radiculopathy, such as pain and numbness.  His complaints are credible to the extent that they reflect pain.  The Veteran's complaints have been considered in the above decision.  As discussed above, the evidence does not show the severity required for a rating in excess of 10 percent prior to January 20, 2009 or in excess of 20 percent beginning January 20, 2009 based on the applicable symptomatology under the applicable rating codes for the elbow.   

Fungal Infection

An August 1993 rating decision granted service connection for tinea pedis/onychomycosis of the feet and assigned a noncompensable rating effective March 1, 1993 under Diagnostic Code 7806.  A March 1994 rating decision changed the description of the condition to a fungus condition of the feet and groin and granted a 10 percent rating effective March 1, 1993.  

Under Diagnostic Code 7806, a noncompensable evaluation is warranted for dermatitis or eczema where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period.  A 10 percent evaluation is warranted where at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent evaluation is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent evaluation is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). 

On VA evaluation in February 2006, the Veteran noted that the fungus in his groin was not active, as it was normally active in summer.  He complained of thickened toenails bilaterally.  He did not use any medication for his fungal infection.  He had approximately 90 percent of the toenails affected, which was less than 5 percent of the body surface and 0 percent of exposed areas.  There was no scarring or disfigurement.  Physical examination revealed moderate onychomycosis of the toenails bilaterally; there was no active fungal infection of the groin.   

The results on VA skin examination in January 2009 were essentially the same as in February 2006, except for the finding of moderately severe onychomycosis of the big toenails, rather than moderate.  The toenails were noted to be thick and discolored, and the big toenails appeared brittle.

The Veteran testified at his January 2010 hearing that he had skin problems in the groin and feet and that he used a topical cream.

When examined by VA in April 2011, the Veteran had a rash in the intertriginous areas of both thighs, near the groin, with a mild erythematous appearance.  The toenails of both feet were thickened.  The Veteran's skin rash was treated with a topical medication.  The percentage of total body area affected was less than 5 percent.  Tinea pedis and onychomycosis were diagnosed.

The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected skin disorder because the evidence does not show a skin condition in which at least 20 percent of the entire body or 20 percent of exposed areas are affected or that systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more during the past 12-month period.  In fact, the Veteran's condition covers an area of less than 5 percent of the body or the exposed skin, which under Diagnostic Code 7806, would warrant a noncompensable rating.

As the Veteran's fungal infection has been generally stable during the appeal period currently before the Board, staged ratings are not warranted.  See Francisco; Hart, both supra.  

The Veteran is competent to report his skin symptoms.  His complaints are credible.  In fact, he has reported that he only has a groin rash in the hotter months.  The Veteran's complaints have been considered in the above noted decision; however, the February 2006, January 2009, and April 2011 evaluations for VA purposes do not shown the severity required for a higher rating.  


Left Foot

An August 1993 rating decision granted service connection for status post fracture of the left 2nd, 3rd, and 4th toes and assigned a 10 percent rating effective March 1, 1993 under Diagnostic Codes 5299-5284.  

As noted above, words such as slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  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.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012). 

Under Diagnostic Code 5284, moderate residuals of foot injuries warrant a 10 percent evaluation.  A 20 percent evaluation requires moderately severe residuals.  A 30 percent rating requires severe residuals.  Actual loss of use of the foot warrants a 40 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). 

It was reported on VA evaluation in February 2006 that the Veteran wore soft shoes, but not special shoes, because of his fractured toes.  He was not receiving treatment for this condition.  His toes hurt when he walked too much, but the disability did not prevent him from walking.  There was no weakness or fatigability.  On physical examination, the Veteran's gait was unremarkable.  There was no tenderness or pain on manipulation of the feet and no functional abnormality on walking or standing.  The diagnosis was residuals of fracture of the 2nd, 3rd, and 4th toes of the left foot.

The Veteran complained on VA evaluation in January 2009 of pain in his left toes on a daily basis.  He took hydrocodone as needed, which helped.  The condition did not have any effect on his occupation or activities of daily living.  Examination of the feet did not show any edema, weakness, instability, tenderness, or deformity.  There was no functional limitation and no evidence of abnormal weight bearing or calluses.  Fracture of the 2nd, 3rd, and 4th toes of the left foot was diagnosed.

On VA evaluation of the left foot in April 2011, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing.  There was no evidence of malunion or nonunion of the tarsal or metatarsal bones, hammertoes, hallux valgus or rigidus, pes cavus, or flatfoot.  The Veteran complained of localized left foot discomfort.  Status-post fracture of the left 2nd, 3rd, and 4th toes was diagnosed.  The left foot disability did not cause any significant effects on the Veteran's occupation or daily activities.

The Veteran testified at his videoconference hearing in January 2010 that the pain in his toes is an eight out of ten and that the disability affects his daily activities, including his ability to walk and drive a car. 

To warrant a schedular rating in excess of 10 percent for left foot disability under Diagnostic Code 5284, there would need to be evidence of more than moderate foot impairment.  The above evidence, however, does not show symptomatology indicative of more than moderate impairment.  In fact, VA evaluations did not show any significant functional impairment despite the Veteran's complaints of foot pain.  It was reported in January 2009 and April 2011 that the left foot disability did not cause any significant effect on the Veteran's occupation or daily activities.  Consequently, a rating in excess of 10 percent for service-connected right foot disability is not warranted under Diagnostic Code 5284.  

A rating in excess of 10 percent is also not warranted for the disability under another diagnostic code for the foot, as the Veteran's service-connected disability does not include acquired flatfoot, pes cavus, or malunion of the tarsal or metatarsal bones.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5278, and 5283 (2012).

The Board has considered the possibility of staged ratings.  See Francisco; Hart, both supra.  The Board, however, concludes that the Veteran's service-connected left foot disability has, based on the above evidence of record, been no more or less disabling during the appellate period.  Accordingly, staged ratings are inapplicable.   


In this case, the Veteran is competent to report his foot symptoms, which primarily involve pain.  His complaints are credible to the extent that they reflect pain.  The Veteran's complaints have been considered in this decision; however, the assigned ratings for impairment of the foot are primarily based on the objective medical findings, as discussed above.  


Bronchitis

A March 1994 rating decision granted service connection for chronic bronchitis with scarring of the left lower lobe and assigned a noncompensable rating effective March 1, 1993 under Diagnostic Code 6600.  

The Veteran's service-connected bronchitis has been evaluated under Diagnostic Code 6600.  Pulmonary function tests (PFTs) are required to evaluate a disability under Diagnostic Code 6600, unless (i) the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less, (ii) pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy has been diagnosed, (iii) there have been one or more episodes of acute respiratory failure, or (iv) outpatient oxygen therapy is required.  See 38 C.F.R. § 4.96(d)(1) (2012).  When evaluating a disability based on PFTs, post-bronchodilator results are used, unless the 
post-bronchodilator were poorer than the pre-bronchodilator results.  In those cases, the pre-bronchodilator results are used to determine the disability rating.  See 38 C.F.R. § 4.96(d)(5) (2012). 

Diagnostic Code 6600 does not specifically provide for a zero percent evaluation.  A 10 percent evaluation is assigned for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted.  See 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). 
A 30 percent evaluation is assigned for Forced Expiratory Volume in one second (FEV-1) of 56- to 70-percent predicted, or; FEV-1/Forced Vital Capacity (FVC) of 56 to 70 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 56- to 65-percent predicted.  Id. 

A 60 percent evaluation is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  Id.  

A 100 percent evaluation is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DCLO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; required outpatient oxygen therapy.  Id.   

The Veteran noted on VA evaluation in February 2006 that he got bronchitis about once a year, with shortness of breath and coughing, sometimes productive and sometimes dry and wheezing.  He was not taking any medication for his bronchitis.  The Veteran's chest was clear to auscultation and percussion, with no wheezing.  PFT showed post-bronchodilator FEV-1 of 79.3 percent of predicted and 
FEV-1/FVC of 87 percent.  DLCO-SB was 81.7 percent of predicted.  The findings were considered to be within normal limits.

The Veteran complained on VA evaluation in January 2009 of shortness of breath with exertion, such as walking one flight of stairs, and of wheezing and coughing, with clear sputum.  He uses an albuterol inhaler when needed, which helped.  PFT showed post-bronchodilator FEV-1 of 102.1 percent of predicted and FEV-1/FVC of 83 percent.  DLCO was normal.  The results were interpreted to suggest a possible mild obstructive pattern.

The Veteran testified at his January 2010 videoconference hearing that he has a breathing problem and uses an inhaler.

The Veteran reported on VA evaluation in April 2011 that he used a bronchodilator daily; he was not taking steroids.  He complained of a cough with clear sputum, weekly wheezing, and dyspnea on exertion.  There was no evidence of abnormal breath sounds or deformity of the chest wall.  Chronic bronchitis with scarring of the left lower lobe was diagnosed.  There were no effects on his usual occupation and daily activities.

The PFT results for February 2006 include FEV-1 of 79.3 percent of predicted, which, because it is less than 80 percent of predicted, warrants a 10 percent rating under the applicable rating schedule beginning February 2, 2006.  A higher rating is not warranted beginning February 2, 2006 because FEV-1 was more than 70 percent, FEV-1/FVC was more than 70 percent, and DLCO was more than 65 percent.  Because FEV-1 was 102.1 percent of predicted on PFT for January 20, 2009, FEV-1/FVC was 83 percent, and DLCO was normal, a noncompensable rating is warranted beginning January 20, 2009.


Additional Considerations

The Board has also considered whether any of the disabilities at issue should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321.  In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.

The schedular evaluations in this case are adequate.  A rating in excess of that assigned is provided in the rating schedule for each of the service-connected disabilities at issue, as noted above, but the medical evidence reflects that each disability does not show the symptomatology warranting a higher rating.  See 38 C.F.R. § 4.1 (2012).  The Veteran's left elbow is his nondominant extremity, and flexion of the elbow has been to at least 70 degrees throughout the appeal period.  Although the Veteran has pain and some functional impairment due to his knees, range of motion has been from 0 to at least 90 degrees; his symptoms are accounted for by the assigned schedular ratings.  The rating criteria for the left ulnar radiculopathy specifically contemplate his symptoms of pain and numbness, with some loss of motor function.  The Veteran's fungal infection covers an area of less than 5 percent of the body or of the exposed skin.  The Veteran's complaints of left foot pain with functional impairment are covered by the ratings for foot impairment.  The rating criteria for the Veteran's 10 percent disability for bronchitis specifically contemplate his PFT results prior to January 2009.  The medical findings during the appeal period in question do not indicate that any service-connected disability causes "marked" interference with employment.    

The record does not reflect (or suggest) any symptoms/impairment of the disability not encompassed by the schedular criteria.  There is also no evidence of frequent periods of hospitalization due to any service-connected disability.  Consequently, the Board finds that the criteria for referral for the assignment of an extraschedular evaluation for the left elbow disability, bilateral knee disability, left ulnar radiculopathy, fungal infection of the feet and groin, left foot disability, and bronchitis during the appeal period pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). 


ORDER

Entitlement to service connection for a low back disorder is denied.

Entitlement to a rating in excess of 20 percent for postoperative residuals of the left elbow with degenerative joint disease is denied.

Entitlement to an increased evaluation for right knee chondromalacia, rated as 20 percent disabling prior to March 1, 2007 and as 10 percent disabling from March 1, 2007, to include restoration of a 20 percent effective March 1, 2007, is denied.  

Entitlement to an increased evaluation for left knee chondromalacia, rated as 20 percent disabling prior to March 1, 2007 and as 10 percent disabling from March 1, 2007, to include restoration of a 20 percent effective March 1, 2007, is denied.  

Entitlement to an increased rating for left ulnar radiculopathy, rated as 10 percent disabling prior to January 20, 2009 and as 20 percent disabling from January 20, 2009, is denied.

Entitlement to an evaluation in excess of 10 percent for a fungal infection of the feet and groin is denied.

Entitlement to a rating in excess of 10 percent for a left foot disability, status post fractures of the second, third, and fourth toes, is denied.

Entitlement to a compensable evaluation for bronchitis prior to February 2, 2006 is denied.  

Entitlement to a rating of 10 percent for bronchitis from February 2, 2006 through January 9, 2009 is granted subject to the regulations applicable to the payment of monetary benefits.

Entitlement to a compensable evaluation for bronchitis beginning January 20, 2009 is denied.  


REMAND

With respect to the claim for entitlement to TDIU, the Board notes that the Veteran was granted served connected for a mood disorder by rating decision in December 2011 and assigned a 30 percent rating effective January 15, 2010; an October 2012 rating decision granted service connection for a left shoulder disorder and assigned a 20 percent rating effective April 8, 2011.  An opinion on whether the Veteran's service-connected disabilities, including the recently service-connected mood disorder and left shoulder disorder, cause unemployability has not been obtained.
Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO will request that the Veteran provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for any service-connected disability since July 2011, which is the date of the most recent medical evidence of record.  After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured.  

If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence.  38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012).

2.  Thereafter, the AMC/RO will arrange for review of the claims files by an appropriate health care provider to determine whether the Veteran's service-connected disabilities taken together are severe enough to prevent him from gainful employment.  The following considerations will govern the opinion:

a. The claims folder, including a copy of this remand, and all records on Virtual VA must be made available to the reviewer, and the reviewer must specify in the examination report that the claims file and Virtual VA records have been reviewed.  The reviewer must specify the dates encompassed by the Virtual VA records that were reviewed.  

b. After reviewing the claims files, the reviewer must provide an opinion on whether the Veteran's service-connected disabilities are severe enough to prevent him from gainful employment. 
c. In all conclusions, the reviewer must identify and explain the medical basis or bases, with identification of the evidence of record.  If the reviewer is unable to make a determination without resorting to mere speculation, he/she must so state. 

d. If the reviewer responds to the above inquiry that he/she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion 
non-speculative and to obtain such evidence. 

e. If a current examination is needed in order to provide the requested opinion, an examination will be conducted and the Veteran must be notified prior to the examination of the consequences for failure to appear at the scheduled examination.

Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail.  The report prepared must be typed.

3.  Thereafter, the AMC/RO will review the claims files and ensure that the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  See 38 C.F.R. § 4.2 (2012) (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes).

4.  After the above have been completed, the AMC/RO will consider all of the evidence of record and 
re-adjudicate the Veteran's claim for TDIU.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a SSOC.  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time will be allowed for response.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The purpose of this REMAND is to comply with all due process considerations.  

The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts.  It has been held that compliance by the Board or the RO is neither optional nor discretionary.  Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs