Citation Nr: 1333625 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-14 363A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a right leg disability, to include as due to an undiagnosed illness. 3. Entitlement to service connection for prostate and/or a kidney disability, to include as due to an undiagnosed illness. 4. Entitlement to a rating in excess of 10 percent for hallux valgus of the right foot with metatarsalgia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1985 to February 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In January 2008 the Veteran withdrew his request for a hearing before the Board. In July 2012, the Board reopened a claim of service connection for posttraumatic stress disorder (PTSD) and remanded the issue of service connection for a psychiatric disorder to the RO for development. In January 2013, the RO granted service connection for PTSD with major depressive disorder; and that issue is no longer on appeal. FINDINGS OF FACT 1. Right leg complaints in service were acute and resolved; a chronic right hip or right leg/knee disability was not manifested in service; arthritis of the right hip or right knee was not manifested in the first postservice year; the Veteran's current right hip and right knee arthritis is a known clinical diagnosis that is not shown to be related to his service. 2. The Veteran's urologic symptoms in service were acute and resolved; renal insufficiency and cysts and benign prostatic hypertrophy (BPH) were not manifested in service; they are known clinical diagnoses that are not shown to be related to his service. 3. At no time under consideration is the Veteran's right foot hallux valgus with metatarsalgia shown to be manifested by impairment equivalent to moderately severe foot injury. CONCLUSIONS OF LAW 1. Service connection for a right hip disability (arthritis) is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2013). 2. Service connection for a right leg/knee disability (arthritis) is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2013). 3. Service connection for a prostate or kidney disorder (to BPH and renal cysts and insufficiency) is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2013). 4. A rating in excess of 10 percent is not warranted for the Veteran's right foot hallux valgus with metatarsalgia. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.45, 4.71a, Codes 5280-5279, 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. A January 2004 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. While he did not receive notice regarding disability ratings and effective dates prior to the initial adjudication, January and March 2008 letters provided such notice prior to the readjudication of his claims in February 2008 and October 2011 (curing the notice timing defect). A January 2008 supplemental statement of the case (SSOC) readjudicated the matters after the appellant and his representative had opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's available service treatment records (STRs) and postservice treatment records have been secured. The RO arranged for VA examinations in January 2004 and August 2012 (with an addendum in May 2013). The examination reports are adequate for rating purposes, as the examiners expressed familiarity with the record, conducted thorough examinations, and, in May 2013, offered opinions accompanied by rationale and with citation to factual data. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The August 2012/May 2013 examiner did not specifically comment on medical opinions previously of record as to the Veteran's right leg/knee and right hip claims, as the remand requested. However, the Board finds that corrective action is not necessary as the explanation or rationale for opinions provided makes clear why the diagnosis is as stated (i.e., the diagnosis of right hip and right knee arthritis is based on X-ray studies) and explain the known etiological factors for such disability, and thus identifies the basis for any disagreement with the prior opinions. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide each of the issues on appeal, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, Analysis The Board notes that it has reviewed all of the evidence of record, to include the claims file and "Virtual VA", with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. A layperson is generally not capable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence 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 layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter (including degree of disability), the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Substantiating a claim of service connection requires showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of a current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. see Allen v. Brown, 7 Vet. App.439 (1995). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more thereafter, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on undiagnosed illness, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. Id. The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Veteran is a Persian Gulf Veteran. Right Hip and Right Leg/Knee Disabilities The Veteran's STRs show that in May 1986 he was seen for complaints of right leg pain, his right hamstring was found to be sore to touch. In July 1986, he reported a complaint of bilateral foot and leg pain for 10 months. since basic combat training. In September 1991, he reported complaints of pain in his right foot moving up through the ankle and lower leg, and muscle spasms on the right side of his body. In October 1991, he reported low back pain with radicular pain to the right leg (hamstring). On July 1992 VA examination, there were complaints of arthralgias of all joints. In June 1993, there were muscle symptoms of undetermined cause. In May 1994, there was an assessment of undifferentiated musculoskeletal pain. On February 2001 VA examination for undiagnosed illness, there was no mention of right hip or right knee problems. On February 2002 private evaluation, the Veteran reported a long history of right leg problems and right arm problems related to his "Persian War" experience. In November 2002, he reported complaints of hip and knee joint pain. Objectively, he was found to have right greater trochanteric bursitis. On October 2002 VA evaluation, the Veteran reported chronic hip pain and some swelling of his knees. On examination of the knees there was no fluid, swelling, erythema, or tenderness, but there was pain with motion. Hip range of motion was unimpaired. On December 2002 private evaluation by B.R., M.D., the Veteran related that most of his problems began in 1990 about the time of a vague incident when he was in the Persian Gulf and fell into a foxhole on both knees. He did not see a physician. but was patched up and sent back to the lines. He frequently used the term "Persian Gulf Syndrome", but could not clearly describe his symptoms. On examination of the Veteran's joints there was no evidence of inflammation. Knee ligaments were stable, and there was no effusion. Hip range of motion was painful. The diagnoses included longstanding multifocal pain without any clear etiology; and rule out hip arthritis. Dr. R. stated that she could find no treatable etiologies on physical exam, and that the Veteran's pain problem did not fit into any syndrome she was aware of. On December 2003 VA evaluation, the Veteran complained of multiple joint pain of 10 years duration. His knees had no significant swelling. The assessment was multiple joints pain. July 2004 VA X-rays of the Veteran's right hip were interpreted as showing age-appropriate mild osteoarthritis. On December 2008 VA evaluation, the Veteran reported having chronic pain in his right hip for many years. In January 2009, he reported that the pain it was from an injury he sustained during the Persian Gulf War in 1990. On August 2012 VA examination the Veteran asserted that his right hip pain was brought on by repetitive stresses of military service. His claims folder was reviewed; examination was noted to show minimal evidence to support the claim. The examiner opined that it was less likely than not that the claimed condition was incurred in service. In a May 2013 addendum the examiner indicated that the Veteran has osteoarthritis of the right hip, diagnosed in 2004 and very mild right knee osteoarthritis shown in August 2012. The examiner explained that osteoarthritis is a degenerative condition due to mechanical stresses placed on a joint, and is common in obese persons and those of advancing age. The examiner noted that the Veteran's chronic hip pain was noted in 2004, more than 20 years postservice, and that while it was unclear when his chronic knee pain began, it was noted in VA medical records around 2008. His records showed that he had been overweight for years, and had worked as a carpenter for several years, and also as a technician. He was almost 60 years old with a history of smoking. All of these factors contributed to the etiology of his current right hip and right knee arthritis. The knee arthritis was barely visible on X-ray. It was also noted that in 2004 he had a right sided stroke (which affected the left side of his body), and that a stroke commonly affects a person's gait, leading to increased pain in the weight bearing joints of the unaffected side until the body is able to accommodate and/or recover from the condition. The Veteran's STRs were silent for any treatment or injury to the right leg or right hip that would be a likely source of his current arthritis. His service records did not support that during service there was any chronic/repetitive mechanical stress on the right hip or right knee joints consistent with his current condition. At the outset, it is noteworthy that the evidence clearly shows (based on X-ray studies) that the Veteran has arthritis of the right hip and the right knee. As arthritis is a known clinical diagnosis such diagnosis places the claim of service connection for right hip and right knee disabilities outside the purview of the law and regulations affording presumptive service connection for undiagnosed illness. Osteoarthritis of either the right hip or the right knee was not manifested or in the first postservice year. While there were notations of leg complaints in service, to support a claim of service connection based a showing of onset of the claimed disability (arthritis) in service and continuity of complaints/symptoms since, the evidence would have to show that the complaints in service were indeed manifestations of the current right hip and right knee arthritis. Arthritis is an insidious process, and whether remote complaints were early manifestations of such current disability is a medical question beyond the capability of a layperson. The current diagnosis is based on recent diagnostic studies, not on reports of manifestations in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only competent (medical) evidence that directly addresses whether a right leg/knee or right hip disability was initially manifested in service is in the reports of the August 2012 and May 2013 reports of VA examination. The examiner noted that right hip arthritis was diagnosed in 2004 and right knee arthritis was diagnosed in 2012, and indicated the STRs do not provide support for onset in service (i.e., they are silent for treatment or injury etiologically relating the current arthritis to service). Regarding the right knee arthritis the Board notes also that the examiner indicated that the August 2012 X-rays first showing right knee arthritis reflect that it was very mild (weighing against a finding that it was long-standing). The Veteran's reports of persisting complaints (reflective of underlying arthritis) since injuries to his right hip and knee sustained in a fall in service are self- serving and not credible; they were first made in connection with a claim for benefits. Notably, on February 2001 VA examination conducted specifically for the purpose of determining the presence of Persian Gulf War related disability the Veteran made no mention of right hip or knee problems. The reports do not gain in probative value by virtue of the Veteran repeating them to a private provider (Dr. B.R.) in December 2002, particularly as that provider expressed skepticism regarding underlying pathology for the Veteran's complaints. In light of the foregoing, the Board finds that service connection for right hip or knee osteoarthritis on the basis that it became manifest in service and persisted (or on a presumptive basis, as a chronic disease under 38 U.S.C.A. § 1112 is not warranted). What remains for consideration is whether or not the Veteran's current right hip or right knee arthritis is shown to somehow otherwise shown be related to his service. In the absence of credible and competent evidence of onset in service and continuity since, whether or not arthritis may somehow otherwise be related to remote service to include as due to injury therein is a medical question, beyond the scope of lay observation. See Jandreau, 492 F. 3d at 1377 (Fed. Cir. 2007). The competent medical evidence that addresses this matter is in the August 2012/May 2013 opinions by a VA examiner in who indicated that the right hip and right knee arthritis is unrelated to activities in service/treatment noted therein. He explained the rationale for the opinion, citing to supporting factual data and identifying the nonservice-related etiologies considered more likely, including the Veteran's weight, aging, smoking, and post-service occupations. There is no competent evidence to the contrary, and the Board finds the VA examiner's opinions persuasive. The Board notes that the Veteran's own opinion in this matter is not competent evidence, as he is a layperson and does not cite to supporting medical opinion or literature. Regarding his vague references to Persian Gulf [undiagnosed illness] Syndrome, the Board reiterates that the diagnosis of arthritis by X-ray places this claim outside the purview of 38 U.S.C.A. § 1117. Prostate/Kidney Disorder The Veteran's STRs show that he was treated for urologic symptoms in September and October 1988. In October 1988, medication was prescribed for a urinary tract infection. On September 1993 VA evaluation, the Veteran's prostate was found to be full of fluid. Bactrim was prescribed. On March 2000 VA evaluation the Veteran reported gross hematuria 3 weeks prior. The assessment was BPH with bleeding. A March 2002 private CT scan found a small cyst on the left kidney. In a February 2007 report of evaluation, A.H., M.D. opined that the Veteran, with a high degree of medical probability, falls into the category of PTSD leading to damage to kidneys, or the larger population of "Gulf War Syndrome". On September 2012 VA nephrology examination, bilateral renal cysts, mild renal insufficiency, and enlarged prostate were diagnosed. The examiner indicated that the Veteran does not have a diagnosis of prostatitis. The examiner noted that renal insufficiency was diagnosed in 2012. The Veteran's claims folder was reviewed and the examiner concluded that the claimed conditions were not related to and had not been aggravated by the Veteran's service. They were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, and were not related to or aggravated by the Veteran's service. The examiner explained that STRs only showed treatment for a brief period of burning sensation which was attributed to a sexually transmitted disease related. The Veteran then had normal renal function since starting treatment at VA. His renal insufficiency, shown on most recent testing, was most likely secondary to his history of uncontrolled hypertension. Renal cysts are not related to and were not aggravated by his service; they were noted to be a common finding, especially in older adults. The examiner also concluded that the Veteran's kidney disease (new onset) was not caused or aggravated by his service-connected PTSD. The examiner noted that Dr. H. had indicated that with a high probability, the Veteran fell into the category of PTSD leading to damage of kidneys, or the larger problem of "Gulf War Syndrome". In response to this statement, the VA examiner disagreed with the proposition that PTSD leads to kidney damage and indicated that medical literature does not reveal a link between PTSD and kidney damage [Dr. H did not cite literature to the contrary. Prerenal disease, vascular disease (hypertension), glomerular disease, tubular and interstitial disease, obstructive uropathy, and relative frequency were all known major causes of kidney disease. The examiner stated that after reading the statement from Dr. H. several times, and having other providers also read it, it was unclear what Dr. H. was trying to say. The Veteran's new onset mild renal insufficiency was considered to be more likely than not secondary to his uncontrolled hypertension. The examiner also observed that psychiatric medications are not known to be nephrotoxic, and research did not show that psychiatric medications cause or aggravate BPH. The Veteran's (new onset) mild kidney condition was therefore not considered caused or aggravated by his PTSD or psychiatric medications. The evidence (by diagnostic studies and clinical evaluation reports) shows that the Veteran has renal insufficiency and cysts and BPH. Such pathology was not manifested in service. The Veteran urologic problems in service were acute, stemming from a sexually transmitted disease, and resolved with treatment. Consequently, service connection for the renal insufficiency/cysts and BPH on the basis that these became manifest in service, and persisted, is not warranted. While there were complaints in service, to substantiate the claim of service connection based on onset of the disability in service and continuity of complaints/symptoms thereafter, the evidence would have to show that there indeed was continuity. Such is not shown. What remains for consideration is whether in the absence of onset in service and continuity thereafter, the Veteran's prostate and kidney disorders are somehow otherwise shown to have been incurred or aggravated in service. As BPH, renal insufficiency and renal cyst are all known clinical entities they do not fall within the purview of the presumptive provisions of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (for undiagnosed illnesses related to Persian Gulf service). As renal disease is not shown to have been manifested in the first postservice year (nor is it so alleged), the chronic disease presumptive provisions of 38 U.S.C.A. § 1112, likewise do not apply. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309. In the absence of onset in service, continuity, and any applicable presumptive provisions, whether these claimed disabilities may be etiologically related to service is a medical question beyond the capability of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only probative competent (medical) evidence that directly addresses that question is the report of the August 2012 VA examination wherein the examiner opines, in essence, that the current BPH, renal cysts, and renal insufficiency are unrelated to service. The examiner explained that kidney cysts are a common occurrence in adults; that the Veteran's only urology-related treatment in service was for a self-limiting infection due to a sexually transmitted disease (that resolved with the treatment); that the Veteran's renal insufficiency is due to his hypertension (which is not service-connected); and that there is no literature indicating that kidney disease is impacted by PTSD or that BPH is related to psychotropic medication. The examiner identified known causes for kidney disease (none for which service connection is established). The opinion by Dr. H to the effect that the Veteran's prostate and renal disabilities are related to Persian Gulf Syndrome (and service connected PTSD and its medication) are conclusory and not accompanied by citation to any supporting medical literature; as is noted above, the VA examiner has indicated there is no support in medical literature for the stated propositions. Therefore, that opinion lacks probative value.. Accordingly, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. Rating For Hallux Valgus/Metatarsalgia Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. The Veteran's service connected right foot hallux valgus with metatarsalgia has been rated 10 percent under Codes 5280-5279. Under 38 C.F.R. § 4.14 the evaluation of the same manifestation under different diagnoses is to be avoided. As both Codes rate metatarsal impairment, ratings under these Codes may not be combined. As 10 percent is the maximum rating under Code 5279 and Code 5280, the analysis must turn to other diagnostic codes for possible rating by analogy. One such Code is Code 5284 (for other foot injury), which provides for a 10 percent rating when moderate, 20 percent when moderately severe, and 30 percent when severe. 38 C.F.R. § 4.71a. The terms "moderate", "moderately severe", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with excursion, strength, speed, coordination, and endurance. Furthermore, the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Under 38 C.F.R. § 4.45, the factors of disability in the joints reside in reductions of their normal excursion of movements in different planes. Inquiry is directed to the following considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). On February 2004 VA evaluation, the Veteran's muscle strength was 5/5 for distal groups. X-rays revealed a mild hallux valgus on the right. In May 2005, the Veteran's right first ray was noted hypermobile. On August 2012 VA foot examination, the examiner indicated that the Veteran did not have a Morton's neuroma, but that had metatarsalgia on the right. He had no symptoms due to hallux valgus, and did not have hallux rigidus. He did not have nonunion or malunion of the tarsal or metatarsal bones. He had no other foot injuries, and did not use an assistive device for locomotion. The examiner indicated that the Veteran's foot condition did not impact his ability to work. The findings noted do not reflect that the Veteran's right hallux valgus is manifested by impairment consistent with more than moderate/approximating moderately severe foot injury, especially when 38 C.F.R. §§ 4.40, 4.45 are considered. August 2012 VA examination found no symptoms due to hallux valgus, no Morton's neuroma or hallux rigidus; it was noted that the Veteran did not require an assistive device for locomotion; and the examiner indicated that the foot disability did not impact on the Veteran's ability to work. Consequently, an increased rating by analogy to Code 5284 is not warranted. There is no evidence in the record suggesting that at any time under consideration the right foot hallux valgus produced greater impairment than was found on the August 2012 examination. Consequently, a staged increased rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also has considered whether the claim warrants referral for consideration of an extraschedular rating. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, comparing the manifestations of the Veteran's service-connected hallux valgus with metatarsalgia and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria for the disability, and consequently those criteria are not inadequate. Therefore, referral for consideration of an extraschedular rating not necessary. Finally, as there is no indication that the Veteran is unemployable due to the right foot hallux valgus (the VA examiner opined it does not impact on employment), the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Service connection for a right hip disability (arthritis) is denied. Service connection for a right leg/knee disability (arthritis) is denied. Service connection for a prostate/kidney disorder (to include BPH, and renal cyst and insufficiency) is denied. A rating in excess of 10 percent for hallux valgus of the right foot with metatarsalgia is denied. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs