Citation Nr: 1322841 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-20 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for arthritis of the left hand. 2. Entitlement to service connection for right hammer toe. 3. Entitlement to a compensable disability rating for residuals of chronic prostatitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to August 1989; November 1990 to September 1991; and February 2003 to July 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2011, the Board remanded the claims for additional evidentiary development. They have now been returned to the Board for further appellate consideration. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The appellant does not have a current diagnosis of left hand arthritis. 2. The appellant does not have a current diagnosis of right hammer toe. 3. The appellant does not have any current residuals of prostatitis. CONCLUSIONS OF LAW 1. The appellant does not have left hand arthritis that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The appellant does not have right hammer toe that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for an initial compensable disability rating for residuals of chronic prostatitis are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.97, 4.115b, Diagnostic Code (DC) 7527 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in September 2004 and April 2006) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the April 2006 letter mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as arthritis/degenerative changes to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Left Hand Arthritis and Right Hammer Toe It is alleged that the Veteran has left hand arthritis and right hammer toe of service origin. As noted in the Board's April 2011 remand decision and repeated here for clarity, the Veteran was diagnosed with degenerative changes in the left radial carpal region of the wrist at VA examination in November 2005. It was noted that the Veteran's left wrist began to bother him during his tour of duty in Iraq and continued to bother him, predominantly in the morning approximately once per week. Given that the Veteran reported feeling wrist discomfort during active service, and there was a diagnosis of degenerative changes in the left wrist, a VA exam was requested to determine whether such was related to service. Moreover, the Board determined that additional examination was necessary as to the claim for right hammer toe. It was noted in a STR from May 2004 that there was a provisional diagnosis of, inter alia, right hammer toe. It was determined that the exam was necessary to address whether any current hammer toe existed, and, if so, whether it was incurred in service. It is noted by the Board that service connection is in effect for another foot disorder, (plantar fasciitis). The requested examination was conducted in November 2011 and paresthesia and carpal tunnel syndrome were shown to exist in the left hand. In a February 2012 rating decision, service connection was granted for left hand carpal tunnel syndrome. The claims file was reviewed and there was an in-person examination of the Veteran by VA in January 2013. Multiple X-ray views of the left hand were accomplished at a VA facility. The impression was "unremarkable radiographs." It was the examiner's opinion that left hand arthritis was not of service origin. For rationale, he noted that the Veteran had a normal subjective exam of the left hand and that there were age appropriate normal radiographs of the hand as well. On VA foot examination in January 2013, the examiner opined that right hammer toe was not of service origin. For rationale, it was noted that there was no evidence of hammer toe on current examination, and radiographs were also normal without hammertoe deformity. Regarding the Veteran's claims for left hand arthritis and right hammer toe, the Board notes that a review of the record does not show that the Veteran has received competent medical diagnoses of these conditions upon recent examinations. While there was report of some minimal radial carpal narrowing at the left wrist seen in 2005, subsequently dated and contemporaneous records reflect that paresthesia and carpal tunnel syndrome in the left hand is demonstrated. As indicated above, service connection is already in effect for this condition. Multiple X-rays of the left hand taken in 2013 are normal. Clearly, left hand arthritis is not currently shown. Similarly, while the Veteran has established service connection for plantar fasciitis, right hammer toe is not shown and has not been shown in recent years. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131 (2012); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of current left hand arthritis or right hammer toe, the claims must be denied. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claims of service connection for left hand arthritis and right hammer toe, and they must be denied. As the preponderance of the evidence is against both of these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, No. 01- 7006 (Fed. Cir. December 17, 2001). Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). When rating the service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012). Prostatitis (Noncompensable) Service connection was established for residuals of chronic prostatitis upon rating decision in October 1992. A noncompensable rating was assigned and has been in effect ever since. The Veteran's residuals of chronic prostatitis are currently rated as noncompensably disabling pursuant to 38 C.F.R. § 4.115b, DC 7527. DC 7527 provides that prostate gland injuries, infections, hypertrophy, postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, DC 7527 (2012). Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding. Where there is 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 a day, a 60 percent evaluation is warranted. A 40 percent rating is warranted where the disorder requires the wearing of absorbent materials which must be changed 2 to 4 times a day. A 20 percent evaluation is warranted where the disorder requires the wearing of absorbent materials that must be changed less than 2 times per day. 38 C.F.R. § 4.115a (2012). For a rating based on urinary frequency, a 40 percent evaluation is warranted when there is a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent evaluation is warranted when there is a daytime voiding interval between one and three hours, or, awakening to void three to four times per night. A 10 percent evaluation is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. 38 C.F.R. § 4.115a (2012). For a rating based on obstructed voiding, a 30 percent evaluation is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent evaluation is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc.; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A noncompensable evaluation is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. 38 C.F.R. § 4.115a (2012). Recurrent symptomatic urinary tract infection requiring drainage/frequent hospitalization (greater than 2 times per year), and/or requiring continuous intensive management warrants a 30 percent evaluation. Urinary tract infection requiring long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrants a 10 percent evaluation. 38 C.F.R. § 4.115a (2012). Evidence relevant to the current severity of the Veteran's chronic prostatitis includes a VA general medical examination report from March 2005. At that time, the Veteran's prostatitis was noted by history only. The Veteran denied any associated problems. A VA virtual record reflects urge incontinence in March 2009. When examined by VA in November 2011, it was noted that the Veteran had no symptoms at that time with regards to his history of chronic prostatitis. Indeed, the Veteran reported to the that he had not seen anyone for prostatitis residuals, and he was on no medications or treatments therefor. Given the above evidence, the Board finds that a compensable disability rating for service-connected residuals of chronic prostatitis is not warranted. While urge incontinence was noted on one occasion in March 2009, residuals of this condition have generally been silent over the years. This includes at the time of examination in November 2011 when it was specifically noted that the Veteran had no symptoms. As such, the criteria for a compensable disability rating are not met. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable DC. Because there are specific DCs to evaluate the prostate, consideration of other DCs for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). In deciding that a compensable evaluation is not warranted, the Board has thoroughly considered the Veteran's claims that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, as noted above, aside from the one instance of urge incontinence in March 2009, he has reported no symptoms of prostatitis that is chronic in nature. Moreover, the Veteran has not submitted any evidence, lay or medical, to contradict the evidence of record showing no current or chronic symptomatology associated with service-connected prostatitis. As such, the Board finds the Veteran's specific reports of symptomatology to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright, supra, (interest in the outcome of a proceeding may affect the credibility of testimony). In conclusion, the Board finds that the preponderance of the evidence is against an increased rating for the claimed disability and the appeal is denied. Extraschedular Evaluation The CAVC has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the CAVC clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the Board notes that the RO provided and discussed the criteria for assignment of extraschedular evaluations for the disabilities at issue for which increased evaluations are sought by the veteran on appeal. The CAVC has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits of the Director of the VA Compensation and Pension Service might consider unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find that the Veteran's disability picture has been rendered unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluations for the disability at issue for which an increased (compensable) rating is sought on appeal. The current schedular criteria adequately compensate the Veteran for the current nature and extent of severity of his prostatitis. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to service connection for arthritis of the right hand is denied. Entitlement to service connection for right hammer toe is denied. Entitlement to a compensable disability rating for residuals of chronic prostatitis is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs