Citation Nr: 1453301 Decision Date: 12/03/14 Archive Date: 12/10/14 DOCKET NO. 09-25 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a low back disability, to include spondylosis with scoliosis. 2. Entitlement to an evaluation in excess of 10 percent for residuals of fractured right big toe with hallux valgus. 3. Entitlement to a compensable evaluation prior to April 21, 2014, and in excess of 40 percent thereafter, for prostatitis. REPRESENTATION Appellant represented by: Howard D. Olinsky, Esq. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1972 to September 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that rating decision, the RO declined to reopen a previously denied claim of entitlement to service connection for spondylosis with scoliosis and denied the claims of entitlement to increased ratings for residual of fractured right big toe with hallux valgus, and prostatitis. In May 2009, the evaluation of the Veteran's service-connected right big toe disability was increased to 10 percent disabling effective January 31, 2007. Jurisdiction has since been transferred to the RO in Buffalo, New York. In April 2011, the Board reopened the claim of entitlement to service connection for spondylosis with scoliosis and remanded this claim, along with the claims of entitlement to increased ratings for residual of fractured right big toe with hallux valgus, and prostatitis for further development and adjudication. In June 2014, the RO increased the evaluation for prostatitis to 40 percent disabling, effective April 21, 2014. The issues of entitlement to service connection for a low back disability and entitlement to a higher evaluation for prostatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected fracture of the right big toe with hallux valgus is characterized by moderate symptoms, including pain, limited motion, and hallux valgus. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for fracture of the right big toe with hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5010-5284 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA In February 2007 and May 2008 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2014) and 38 C.F.R. § 3.159(b) (2014). The RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was afforded VA examinations which, taken together, are fully adequate to review the issue decided herein. In this regard, the Board notes that the criteria for evaluating this claim were addressed and set forth in the claims file. In April 2011, this matter was remanded for additional development, to include requesting treatment records from several correctional institutions and affording the Veteran an additional VA examination in connection with his claims. The identified records were requested, but most could not be obtained. The RO outlined the steps taken to retrieve these records in Formal Findings dated in November 2011 and December 2013. Records from Westchester County were associated with the claims file in October 2011. In addition, the Veteran was afforded a VA examination in April 2014 with respect to the claims on appeal. As such, the Board finds that there has been substantial compliance with the terms of the Board's remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. Part 4. The Board determines the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, staged ratings are appropriate for increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In this regard, the Board notes that the Court in Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011), recently held that although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. See also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant); Spurgeon v. Brown, 10 Vet. App. 194 (1997) (38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function). Here, the Veteran seeks a rating in excess of 10 percent for fracture of the right big toe with hallux valgus. This condition is currently evaluated under Diagnostic Code 5284. Diagnostic Code 5277 provides ratings for bilateral weak foot. For symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness, the underlying condition is to be rated, with a minimum rating of 10 percent. 38 C.F.R. § 4.71a . Diagnostic Code 5278 provides ratings for acquired claw foot (pes cavus). Acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a . Diagnostic Code 5279 provides a 10 percent disability rating for anterior metatarsalgia (Morton's disease), whether unilateral or bilateral. 38 C.F.R. § 4.71a. Diagnostic Code 5280 provides ratings for unilateral hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5281 provides that unilateral severe hallux rigidus is to be rated as severe hallux valgus. A Note to Diagnostic Code 5281 provides that the rating for hallux rigidus is not to be combined with claw foot ratings. Diagnostic Code 5280 provides that severe unilateral hallux valgus, if equivalent to amputation of great toe, is to be rated 10 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5282 provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensably (0 percent) disabling. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5283 provides ratings based on malunion or nonunion of tarsal or metatarsal bones. Moderate malunion or nonunion of tarsal or metatarsal bones is rated 10 percent disabling; moderately severe malunion or nonunion of tarsal or metatarsal bones is rated 20 percent disabling; and severe malunion or nonunion of tarsal or metatarsal bones is rated 30 percent disabling. A Note to Diagnostic Code 5283 provides that malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. The medical evidence in this case consists of outpatient treatment records and VA examination reports dated in February 2007, March 2007, August 2008, and April 2014. The February 2007 VA examination report noted that, in 1973, the Veteran injured his right foot on a brick. It was splinted and he was placed on profile for 10 days. The Veteran reported pain in the first metatarsophalangeal joint of the right great toe when he is on it for a long time. The examiner stated that there was no infection and no constitutional bone disease. On examination, the Veteran was found to have bilateral bunions, right greater than left. There was some tenderness anterior and distal to the bunion and pain on motion, but no edema, redness, or heat. He was diagnosed with bunion of the right first metatarsal joint with a history of joint dislocation. X-ray indicated moderate degenerative disease in the first MP joint. There was no subluxation and no dislocation. The March 2007 records also noted a 1973 injury to the right foot. On examination, all pedal pulses were palpable, capillary response of the toes was within normal limits, there was no swelling, redness or inflammation of either foot, and there were no lesions on the feet. Range of motion testing indicated normal inversion and eversion, plantar flexion of the first MPJ right foot to approximately 5 degrees, dorsiflexion to about 25 degrees. There was pain on palpation of the first MPJ of the right foot and pain on plantar flexion of this joint. The Veteran was noted to have severe hallux valgus of the right foot. X-rays indicated hallux valgus, right foot. The examiner indicated that a fracture of the first MPJ could have caused a hallux valgus. Upon VA examination in August 2008, the Veteran was noted to have symptoms of pain (while standing, walking, and at rest), and heat, redness, stiffness, and weakness (while standing and walking). There was no swelling, fatigability, lack of endurance, or other symptoms. The Veteran used orthotic inserts and pads for his shoe. On examination of the right foot, there was no evidence of painful motion, swelling, instability, or weakness. There was tenderness and abnormal weight bearing and callosities resulting from abnormal weight bearing. There was full range of motion of the MTP joint. There was also no vascular foot abnormality, malunion or nonunion of the tarsal or metatarsal bones, and no muscle atrophy. X-rays indicated no acute fracture or dislocation of the feet, degenerative changes with hallux valgus, small retro and plantar calcaneal spurs bilaterally, and evidence of pes planus deformity bilaterally. The Veteran was diagnosed with right first toe degenerative joint disease with hallux valgus deformity. It was found that this condition had no significant effects on occupation. Finally, the Veteran was examined by VA in April 2014. He had complaints of pain in his foot and pain in his big toe while walking. He also reported problems with standing and walking, but the examiner indicated that this was more due to his back condition. The examiner found that the Veteran did not have Morton's neuroma, metatarsalgia, hammertoes, or hallux rigidus. There was hallux valgus. The Veteran had pain on examination and reduced movement. There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or repeated use. There was 30 degrees of valgus angulation of the right great toe. There was no functional impairment that essentially equaled amputation or prosthesis. X-rays indicated right big toe hallux valgus. Standing/walking was limited to 30 minutes. There were no effects on employment. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flare-up or it the joint is used repeatedly over a period of time. The Veteran's outpatient treatment records have also been reviewed. These records did not show symptoms more severe that those noted in the VA examination reports above. Based on the foregoing, the Board finds that the Veteran does not qualify for evaluations in excess of 10 percent for his right big toe disability. The record does not show that the Veteran has acquired flatfoot in connection with his service-connected right big toe disability. There is also no showing of acquired claw feet (pes cavus), malunion or nonunion of the tarsal or metatarsal bones, or other injuries to the feet for which he is not already service-connected. Therefore, he cannot qualify for evaluations in excess of 10 percent under Diagnostic Codes 5276, 5278, 5283, 5284. See 38 C.F.R. § 4.71a . Furthermore, evaluations in excess of 10 percent are not available for weak foot (bilateral), metatarsalgia, hallux valgus, hallux rigidus, or hammer toe. See id. In addition, the Board notes that the Veteran has pain in the toe upon use and some limited motion. The symptoms noted above most closely resemble moderate residuals of foot injuries under Diagnostic Code 5284. The VA examiners addressed the criteria set forth in DeLuca, supra. The examination reports do not indicate that the feet are additionally limited by increased pain, incoordination, fatigue, weakness, or lack of endurance on repetitive use. 38 C.F.R. §§ 4.40, 4.45. While the medical records and examination reports show that the Veteran has had pain in his right big toe, applying the DeLuca criteria, the symptomatology does not lead to higher ratings, because the criteria from DeLuca have been contemplated in the 10 percent rating assigned. Indeed, while factors such as pain are shown, they have not resulted in additional functional limitation most nearly approximating the next-higher rating. The Board has also considered whether staged ratings are appropriate under Hart. However, in this case there is no basis for an increased evaluation for any portion of the rating periods on appeal. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The preponderance of the evidence is against the claim. There is no doubt to be resolved, and ratings greater than 10 percent for the Veteran's right big toe disability are not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER An evaluation in excess of 10 percent for residuals of fractured right big toe with hallux valgus is denied. REMAND With respect to the prostatitis claim, the medical evidence indicates that the Veteran has had symptoms of nocturia in his medical treatment records at same time that other records indicated that there was no current evidence of prostatitis. An August 2008 examination indicated that the Veteran had urinary symptoms that included dysuria, dribbling, and nocturia with 5 or more voidings per night. After examination, the examiner indicated that there was no diagnosis of prostatitis on examination that day. Instead, there was a diagnosis of benign prostatic hypertrophy. A VA examination in October 2007 also diagnosed benign prostatic hypertrophy, which the examiner indicated was unrelated to prostatitis. The examiner also stated that there was no clear evidence that the Veteran had recurring prostatitis since discharge from the military. In October 2008, the Veteran underwent surgery for lower urinary tract symptoms. He was indicated to have nocturia 5 to 6 times per night, as well as constipation. No prostatitis was indicated at that time. Upon remand, the Veteran's claims file should be reviewed by an appropriate examiner for further opinion. Specifically, the examiner should offer an opinion regarding whether the Veteran's symptoms prior to April 2014 were due to his service-connected prostatitis. The Veteran's urinary symptoms during the appeal period (from 2007 forward) should be detailed and the cause of the symptoms identified. The examiner should provide a definite opinion regarding whether the symptoms identified are related to prostatitis, benign prostatic hypertrophy, or another cause. Next, the Veteran's back claim was remanded in April 2011 in part in order to afford a VA examination. The examiner was asked to identify the current diagnoses pertaining to the low back and state if such disability was a congenital or developmental abnormality. If so, the examiner was asked to state whether any such disorder or any preexisting non-congenital condition, was aggravated beyond the normal progress of the disease during or due to the Veteran's military service, including a reported 1974 back injury. The examiner was also asked to state whether any non-congenital or non-developmental abnormality was related to the Veteran's military service, with specific consideration of his complaints of low back pain in service. The examiner was asked to comment on the July 1974 Medical Board Report determination and the February 2007 VA examiner's medical conclusion. The Veteran was afforded a VA examination dated in April 2014. The examiner diagnosed intervertebral disc syndrome, lumbar disc disease with scoliosis, and spondylolysis. The examiner noted the Veteran's report that he slipped and fell on the obstacle course in the military and that his back had not been the same since. After examination, the examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that scoliosis and spondylolysis were congenital and not secondary to the military, and also were not worsened beyond their natural course in the military. Lumbar disc disease with herniation was found to be most likely secondary to a fall in 2007 and related to the Veteran's age, as his symptoms in service were not consistent with a herniated disc. The examiner also found that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by in-service event, injury or illness. These opinions were supported by reference to the medical history, including the service medical board. Based on the foregoing, the Board finds that further opinion is required. In this regard, the Board notes that when no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a Veteran's congenital disease is not noted at entry. See Quirin, 22 Vet. App. at 396-97; Monroe, 4 Vet. App. at 515. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly, "[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexisting and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness ... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). This burden must be met by affirmative evidence demonstrating that there was no aggravation. See Id. The burden is not met by finding that the record contains insufficient evidence of aggravation. See Id. In this case, no back disorder was noted on the Veteran enlistment examination. As such, it must be shown by clear and unmistakable evidence that the Veteran's ensuing back disability or disabilities both preexisted military service and were not aggravated thereby. The April 2014 examiner indicated that the Veteran's scoliosis and spondylolysis were congenital and it appears that the examiner was also trying to state that these conditions clearly and unmistakably preexisted military service. While the examiner also indicated that there was no aggravation beyond the natural progression of the disorder, there was no opinion that this was clearly and unmistakably the case. As such, further clarification and opinion is warranted prior to deciding the claim. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file, including a copy of this remand, to an appropriate examiner for an opinion in response to the following questions. Review of the claims file should be noted in the examination report. Were the Veteran's urinary symptoms prior to April 2014, including dysuria, dribbling, and nocturia with 5 or more voidings per night, due to service-connected prostatitis, benign prostatic hypertrophy, or another cause? The examiner should provide a clinical rationale for any opinion expressed. If he or she is unable to answer any of the above questions, then he or she should so indicate and provide a rationale for why an answer could not be provided. 2. Forward the claims file, including a copy of this remand, to the April 2014 examiner him for an addendum report in response to the following questions. Review of the claims file should be noted in the examination report. (a) Please clarify which of the Veteran's diagnosed back disability is congenital or developmental. Please also state whether each such condition is considered a congenital or developmental defect, or is it a congenital or hereditary disease. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. (b) If the condition is a congenital or developmental defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability? Please identify the additional disability. Or, was the increase in severity due to the natural progress of the disorder? (c) In contrast, if any condition is a congenital or hereditary disease, please state whether the condition (i) clearly and unmistakably preexisted his entry into active service, and (ii) clearly and unmistakably was not aggravated, beyond the normal progress of the disorder, during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease). If both of the above criteria above (the bolded language) are found to be met, please opine whether it is at least as likely as not (probability of 50 percent or more) that condition was aggravated (worsened beyond its normal progression) by active service. If either or both of the above criteria above (the bolded language) are NOT met, please opine whether it is at least as likely as not that the condition was incurred in or otherwise related to active service. (d) For any diagnosed conditions that did not clearly and unmistakably preexist military service (to include those that are not a congenital or developmental abnormality), is it at least as likely as not that such disorder is related to the Veteran's military service, with specific consideration of his complaints of low back pain in service? In providing the above opinions, please comment on the February 2007 VA examiner's medical conclusion, and express his or her agreement or disagreement therewith. The examiner should provide a clinical rationale for any opinion expressed. If he or she is unable to answer any of the above questions, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Readjudicate the claims on appeal. If any of the benefit sought remains denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond prior to returning the case to the Board for further appellate review The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs