Citation Nr: 1625322	
Decision Date: 06/23/16    Archive Date: 07/11/16

DOCKET NO.  15-14 308A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for ischemic heart disease, for purposes of entitlement to retroactive benefits.

2. Entitlement to a rating in excess of 10 percent for right foot hallux valgus, postoperative, fourth and fifth metatarsals with residual hardware (hereinafter "right foot hallux valgus").

3. Entitlement to a rating in excess of 10 percent for left foot hallux valgus, status post resection, status post osteotomy of the fourth metatarsal (hereinafter "left foot hallux valgus").

4. Entitlement to a rating in excess of 20 percent for a back disability, manifested by muscle spasm, degenerative disc disease, and spondyloarthropathy of the L5-S1, prior to October 21, 2013, and a rating in excess of 10 percent from that date.

5. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity.

6. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity.

7. Entitlement to a rating in excess of 10 percent for a duodenal ulcer prior to July 27, 2014, and a rating in excess of 20 percent from that date.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran, Spouse, & C.N.B., M.D.


ATTORNEY FOR THE BOARD

A. Ishizawar, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1956 to September 1960, and from January 1961 to August 1980.

These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2011, November 2013, and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in San Diego, California, and Atlanta, Georgia.  The Veteran's claims file is currently in the jurisdiction of the Atlanta, Georgia RO.

The May 2011 rating decision granted service connection for prostate cancer, rated 100 percent, effective September 18, 2000; and denied service connection for erectile dysfunction and ischemic heart disease, for purposes of entitlement to retroactive benefits.  

Regarding the effective date assigned by the May 2011 rating decision for the award of service connection for prostate cancer and the denial of service connection for erectile dysfunction, the Veteran initiated an appeal in these matters by filing a June 2012 and February 2012 notice of disagreement (NOD), respectively.  He did not, however, perfect his appeal in the matter of entitlement to an earlier effective date for prostate cancer by filing a substantive appeal subsequent to the issuance of an October 2014 statement of the case (SOC) in this matter.  Therefore, the matter of the effective date assigned for the Veteran's prostate cancer is not on appeal before the Board.  As for the Veteran's erectile dysfunction, a January 2015 rating decision granted service connection for that disability as well as special monthly compensation (SMC) based on the loss of use of a creative organ; therefore, this matter is resolved and also not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim is granted during the pendency of an appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability).

The November 2013 rating decision, in pertinent part, decreased the rating assigned for the Veteran's back disability from 20 percent to 10 percent, effective October 21, 2013; denied increased ratings for the Veteran's right foot hallux valgus and left foot hallux valgus; decreased the rating assigned for the Veteran's duodenal ulcer from 10 percent to 0 percent, effective October 21, 2013; denied service connection for a right knee condition, left knee condition, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, right ankle disability, left ankle disability, and depression; and denied entitlement to SMC based on the need for aid and attendance or due to being housebound.  In August 2014, the Veteran filed an NOD with those foregoing determinations.

Regarding the Veteran's claims for depression, a right knee disability, a left knee disability, and SMC due to the Veteran being housebound, a March 2015 rating decision granted service connection for depression, a right knee disability, and a left knee disability.  It also granted SMC due to the Veteran being housebound.  Accordingly, those matters are resolved and not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The March 2015 rating decision also restored the 10 percent rating assigned for the Veteran's duodenal ulcer from October 21, 2013, and granted an increased rating of 20 percent, effective July 27, 2014.  As the Veteran was not assigned the maximum rating for either of the "stages" on appeal, the matter of the ratings to be assigned for the Veteran's duodenal ulcer remained on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  In March 2015, an SOC was issued to address that issue as well as the other issues the Veteran had disagreed with in the November 2013 rating decision (and had not since been granted in full).  In May 2015, the Veteran responded to the March 2015 SOC with a VA Form 9, substantive appeal, in which he specifically limited his appeal to the issues of entitlement to increased ratings for right foot hallux valgus, left foot hallux valgus, a back disability, and a duodenal ulcer.

The March 2015 rating decision also granted service connection for radiculopathy of the right and left lower extremities, each rated 10 percent, effective July 28, 2010.  Although the Veteran did not file an NOD with that decision, to the extent he has presented argument to the effect that an initial rating higher than 10 percent is warranted for the radiculopathy in his right and left lower extremities, the Board finds those issues to be on appeal before the Board by virtue of his claim for an increased rating for a back disability.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.  Therefore, those issues have been included on the title page of this decision.

In February 2016, a Central Office hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  

At the February 2016 Central Office hearing, the Veteran sought, and was granted, a 60-day abeyance period for the submission of additional evidence.  38 C.F.R. § 20.709 (2015).  In September 2015 and in February 2016, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review.  38 C.F.R. § 20.1304 (2015).

Also at the February 2016 Central Office hearing, the Veteran and his representative requested that the issue of entitlement to a permanent and total disability rating based on the Veteran's combined rating of 100 percent be referred to the AOJ for consideration and adjudication.  38 C.F.R. § 19.9(b) (2015).

In various submissions, including at the February 2016 Central Office hearing, it was suggested that clear and unmistakable error (CUE) had been committed in earlier rating decisions that are now final and not on appeal before the Board, by denying service connection for ischemic heart disease; not assigning a separate rating for the Veteran's service-connected right foot hallux valgus prior to April 14, 2010; and failing to assign a separate rating for the Veteran's service-connected radiculopathy of the bilateral lower extremities when he had filed prior increased rating claims for his back disability.  As the Veteran's claims for CUE have not been adjudicated by the AOJ, the Board does not have jurisdiction over them.  They are, instead, referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).

Finally, the Board notes that the issue of entitlement to service connection for bladder incontinence was denied, in pertinent part, in a July 2015 rating decision.  However, at the February 2016 Central Office hearing, he and his witnesses provided testimony regarding his bladder incontinence.  As the Veteran has not filed an NOD with the July 2015 rating decision, as to the denial of service connection for bladder incontinence, his statements and those of his witnesses are referred to the AOJ for any appropriate action.  38 C.F.R. § 19.9(b) (2015).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The Veteran is not shown to have a chronic heart disorder/ischemic heart disease.

2. The Veteran is in receipt of the maximum schedular rating available for right and left foot hallux valgus.  His right and left foot hallux valgus do not include manifestations of malunion or nonunion of the tarsal or metatarsal bones, produce symptoms which approximate amputation of the great toes with removal of the metatarsal head, nor is there clinical evidence of flatfoot, bilateral weakfoot, claw foot, metatarsalgia, or a foot injury.

3. For the entire appeal period, the Veteran's back disability has been manifested by pain and muscle spasm or guarding severe enough to result in an abnormal gait, but not painful motion of 30 degrees or less, ankylosis, or intervertebral disc syndrome.

4. For the entire appeal period, the Veteran's radiculopathy of the right lower extremity has been manifested by moderate incomplete paralysis.

5. For the entire appeal period, the Veteran's radiculopathy of the left lower extremity has been manifested by moderate incomplete paralysis.

6. Prior to July 27, 2014, the Veteran's duodenal ulcer was manifested by mild symptoms that occurred once or twice yearly, and was largely controlled by medications; moderate symptoms were not shown.

7. From July 27, 2014, the Veteran's duodenal ulcer has been manifested by moderate symptoms, characterized by recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations; moderately severe symptoms have not been shown.  





CONCLUSIONS OF LAW

1. Service connection for ischemic heart disease, for purposes of entitlement to retroactive benefits, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015).

2. The criteria for a rating in excess of 10 percent for right foot hallux valgus have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280 (2015).

3. The criteria for a rating in excess of 10 percent for left foot hallux valgus have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280 (2015).

4. The criteria for a rating in excess of 20 percent for a back disability prior to October 21, 2013, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § Part 4, including §§ 4.7, 4.124a, Diagnostic Code (DC) 5237 (2015).

5. The criteria for a rating of 20 percent (but no higher) for a back disability from October 21, 2013, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code (DC) 5237 (2015).

6. The criteria for an initial rating of 20 percent (but no higher) for radiculopathy of the right lower extremity have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code (DC) 8720 (2015).

7. The criteria for an initial rating of 20 percent (but no higher) for radiculopathy of the left lower extremity have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code (DC) 8720 (2015).

8. The criteria for a rating in excess of 10 percent for a duodenal ulcer prior to July 27, 2014, and a rating in excess of 20 percent from that date, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4 .7, 4.114, Diagnostic Code (DC) 7305 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 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). 

VA's duty to notify was satisfied by letters addressed to the Veteran in October 2010 and September 2013.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Veteran has had ample opportunity to respond/supplement the record, and neither he nor his representative has alleged that notice in this case was less than adequate. 

Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal has also been identified and obtained, to the extent possible.  The relevant evidence of record includes the Veteran's service treatment and personnel records, VA treatment records, private medical opinions from Dr. C.N.B., and personal statements from the Veteran and his family members in support of his claim.  Neither the Veteran nor his representative has identified any relevant outstanding evidence.

The RO also arranged for VA examinations in October 2013 (for the feet, back, and duodenal ulcer) and in November 2014 (for the heart, feet, back, and duodenal ulcer).  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  After reviewing the October 2013 and November 2014 VA examination reports, the Board finds that they contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disabilities on appeal to provide probative medical evidence adequate for rating and adjudication purposes.  

Finally, the Veteran was provided an opportunity to set forth his contentions during a February 2016 Central Office hearing before the undersigned.  The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  The transcript reflects that at the February 2016 Central Office hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the Veteran's claims.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.102(c)(2), nor have they identified any prejudice in the conduct of the hearing.

In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claim.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Legal Criteria, Factual Background, and Analysis

As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, 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) (noting that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal.

Service connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection for a claimed disability, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 

Disorders diagnosed after separation from service may still be service-connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Certain chronic disabilities (including cardiovascular disease) may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time postservice (one year for cardiovascular disease).  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 

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 include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may 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 is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

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 preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran seeks service connection for ischemic heart disease, which he contends had its onset in service and/or is related to his exposure to herbicides while serving in the Republic of Vietnam.

If a Veteran, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era, and has one of the specified diseases (to include ischemic heart disease) associated with exposure to certain herbicide agents (to include Agent Orange), such disease shall be considered to have been incurred in service, as due to the exposure to herbicides.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).

Ischemic heart disease includes "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina."  It does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.  See 38 C.F.R. § 3.309(e), and note 2, following.

The Veteran's service personnel records contain sufficient information to establish his presence in the Republic of Vietnam during the Vietnam Era.  Therefore, his exposure to herbicides while serving in the Republic of Vietnam is presumed.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6).  The critical question to be resolved in this claim, however, is whether the Veteran has a current diagnosis of a heart disability.  

In statements from the Veteran, he has asserted generally that he started having stomach and chest pains in service, for which he was hospitalized and given diagnoses of duodenal ulcer and heart disease.  He also recalled experiencing shortness of breath and heart palpitations in service, which continued after service along with occasional chest pain.  The Veteran stated that at his first VA examination in January 1981, after he separated from service, he recalled the examiner telling him he had high blood pressure for the first time.  The Veteran notes he continues to suffer from high blood pressure/hypertension readings, shortness of breath, palpitations and heart murmurs.  To support his claim, his spouse has also provided statements to the effect that she recalls the Veteran seeking treatment in service for shortness of breath, heart palpitations, and chest pain, and that his cardiac symptoms have persisted continuously since service.  

A review of the Veteran's service treatment records shows that on July 1960 service separation physical examination (from his first period of service), clinical evaluations of his heart and vascular systems were normal.  He was examined again in January 1961, for a service entrance physical examination (for his second period of service) at which time a clinical evaluation of his heart and vascular systems was normal.  The Veteran was then examined on multiple occasions throughout his long career in the United States Air Force, including in March 1966, October 1969, June 1972, June 1974, September 1976, and July 1979.  On each of those occasions, clinical evaluations of the Veteran's heart and vascular systems were normal.  The Veteran retired from service in August 1980.  One month prior to his retirement, he was provided a physical examination; this included a clinical evaluation of his heart and vascular systems, which was normal.

The Veteran's service treatment records do show that in January 1967, he was provided an electrocardiogram (EKG) as part of his evaluation for a duodenal ulcer.  This study showed T wave flattening and inversion in II, III, AVF, V5-V6; as well as "increased precardial voltage suggestive of ischemia."  In November 1967, the Veteran was hospitalized for 19 days (and discharged in December 1967) for treatment of a duodenal ulcer.  In the narrative summary from that hospitalization, it was noted:

No etiology could be elicited for the T-wave inversions in the inferior leads of the EKG.  These changes are nonspecific and conceivably could be due to duodenal ulcer, although are more suggestive of inferior wall myocardial ischemia.  Further evaluation will be necessary at a later time.

It was then stated that the Veteran would be discharged and placed on a P-3 profile for 60 days.  "Duodenal ulcer disease; treated, improved," was the final diagnosis.  
Physical profiles issued in December 1967 and January 1968 show that the Veteran was determined to be medically qualified for temporarily restricted duty as a result of: (1) peptic ulcer disease, and (2) heart disease.  The Veteran was then seen again in January 1968 (in Okinawa, Japan) for continued complaints of intermittent right and left anterior chest pain without shortness of breath or dyspnea.  It was also noted that he had occasional abdominal discomfort.  After an examination, it was determined the Veteran's pain was related to prolonged bending forward.

Within one year of the Veteran's separation from his second period of service, he filed a claim for VA benefits, including heart disease which he stated was diagnosed in December 1967.  As part of that claim, the Veteran was provided a VA examination in January 1981, wherein the examiner stated, "Examination of the heart and peripheral pulses is normal.  There is no cyanosis, clubbing or edema."  The examiner also reviewed the Veteran's service treatment records and, in an attached white sheet to the VA examination report, stated:

EKGs in 1967 and afterwards showed some non-specific changes.  However, no etiology for these was ever found.  He specifically denies any heart attacks or heart murmurs or rheumatic fever.  He states that he was told that his blood pressure was high [for] the first time one week ago and was told to return in two weeks so it could be checked again.  He gets some occasional sharp shooting pains over the left lower anterior chest which are unrelated to exertion and seem to come on when he assumes certain positions while sitting or lying down.  He has no shortness of breath, wheezing, cough, orthopnea or ankle edema or palpitations or whezing [sic].

The examiner indicated a review of the Veteran's systems was clear, and in the diagnosis section, stated, "Non-specific changes on EKG since 1967, see current EKG, etiology of these changes is unknown, there does not seem to be any evidence of heart disease."  In a handwritten note, the examiner added, "EKG now normal."

Since the January 1981 VA examination, the Veteran's postservice VA treatment records have been silent for any complaints, findings, treatment, or diagnoses related to ischemic heart disease, coronary artery disease, or other heart disease.  Significantly, none of these disabilities are included in the Veteran's medical history or problem list.  On occasions when the Veteran's cardiac system has been reviewed, as part of his treatment for other disabilities, it has been noted to be normal.  

In August 2011, the Veteran sought follow-up treatment from his primary care physician, Dr. M.R.S.  It was noted that the Veteran's main concern was that he had recently applied for service connection and had been denied benefits for ischemic heart disease because there was not any record of it.  Dr. M.R.S. stated:

I did go through all his notes here [at the Palo Alto VA Medical Center] and in fact he has not complained of those things in the past here and there is no record of any of that.

The patient says that when he was in the service in 1967, he was told he had abnormal blood flow in the heart, however, he did not bring me that report.  In my personal opinion it would be extremely unlikely that this was coronary artery disease and if it remained untreated for 30-40 years that he would still be here talking to us as he is.  It is quite possible maybe he had a heart murmur or something else.  However, it is difficult for me to know without seeing those records.  The patient is not very active, but he has no chest pain, no shortness of breath.

Dr. M.R.S then conducted a physical examination.  He noted the Veteran's chest was clear to auscultation bilaterally and that his cardiovascular system produced regular rate and rhythm, with normal S1 and S2, and no S3, S4 or murmurs.  An EKG was also done; it showed sinus bradycardia with a rate of 51 with 1 PVC.  Other than that, there were no Q waves, ST or T-wave changes.  Dr. M.R.S.'s assessment was that the Veteran had, "Questionable coronary artery disease."  He stated, "I really do not think he has that.  He has no symptoms of it.  He can certainly bring me his military records when he finds them.  The patient is interested in getting evaluation, however, so I will go ahead and refer him for a thallium heart test.  Given his back pain, he cannot walk far enough for the treadmill test."

In September 2011, the Veteran was sent a letter about a stress test he had undergone one day earlier.  It showed normal myocardial perfusion and normal resting left ventricular ejection fraction of 56 percent.  The Veteran was told, "Good news.  Your heart test is normal."

In November 2014, the Veteran was provided a VA examination to determine whether he had a current heart disability.  During the examination, the Veteran claimed that the date of onset for his ischemic heart disease symptoms was in 1967, when it was found at a base hospital.  He stated the condition had worsened with elevated blood pressures and an enlarged heart.  He did not report experiencing angina, shortness of breath, fatigue, dizziness, or syncope attacks.  

On review of the various heart conditions, the examiner indicated the Veteran had a myocardial infarction in 1967 at the Kardena Air Base.  The examiner also indicated the Veteran did not require continuous medication for a heart condition, nor did he have congestive heart failure, arrhythmia, any heart valve conditions, infectious heart conditions, or pericardial adhesions.  The examiner further noted the Veteran had not had any non-surgical or surgical procedures for the treatment of a heart condition, to include any hospitalizations for the treatment of a heart condition. 

On physical examination, the Veteran's heart rate was 60.  He had regular rhythm, normal heart sounds, normal peripheral pulses, no jugular-venous distension, no peripheral edema, and auscultation of the lungs was clear.  Diagnostic testing was also reviewed; the examiner noted there was evidence of cardiac hypertrophy in that an echocardiogram performed in November 2014 showed mild left ventricle hypertrophy.  There was no evidence of cardiac dilatation, but a November 2014 EKG showed a flat T-wave.  A November 2014 chest X-ray was normal.  An interview-based METS test was also conducted; the Veteran denied experiencing symptoms with any level of physical activity.  

Based on the foregoing information, the November 2014 VA examiner determined that the Veteran did not now have nor had he ever been diagnosed with a heart condition.  The examiner stated:

History of [myocardial infarction] per claimant is not supported by medical records.  Report of Medical History retirement dated [July 1980] noted bunion and chronic back pain.  Progress note San Jose no date ? coronary artery disease examiner did not feel that claimant had condition and thallium stress test ordered.  No resultso f [sic] thallium stress test in chart.. [sic]  He has no history of rheumatic heart disease . . . Congestive heart failure was not found on today's examination . . . For the claimant's claimed condition of ischemic heart disease, there is no diagnosis because there is no pathology to render a diagnosis.

To support his claim that he has ischemic heart disease, the Veteran has submitted three private medical opinions from Dr. C.N.B, dated May 2012, September 2015, and in February 2016.  Dr. C.N.B. also testified at the February 2016 Central Office hearing.  In essence, it is Dr. C.N.B.'s opinion that the Veteran has a current diagnosis of ischemic heart disease, which had its onset in service.  Relying on the Veteran's service treatment records (as outlined above), Dr. C.N.B. states that such evidence sufficiently establishes that the Veteran had ischemic heart disease in service.  He also points to the Veteran's longstanding history of hypertension which, in his opinion, also had its onset in service, and states that hypertension is a "well known cause of cardiac disease."  See May 2012 private medical opinion.  In his February 2016 private medical opinion, Dr. C.N.B. stated:

[The Veteran's service treatment records] clearly show that [he] had high blood pressure and abnormal EKGs in service supporting ischemic heart disease starting in 1967.  In 1967 he had hypertension and left ventricle hypertrophy (known in rating vernacular as cardiomegalia).  [VA examination] of 1981 showed hypertension of 140/100 and 1988 [VA examination] shows hypertension at 138/94 . . . His cardiac changes have been reproduced through his medical records to the current day whereby [the November 2014 VA examiner] even documented his hypertension in her contracted [VA examination] 2014 exam.  The patient's and spouse's hearing testimony and lay statements concerning cardiac symptoms both corroborate his chronic heart disease as he has had palpations and dyspenia [sic] (shortness of breath likely due to cardiac disease) that dates back to the 1967 time period.  He testified that his dyspenia [sic] has worsened.

Dr. C.N.B further stated:

I understand that the current heart claim is denied because of the fact that the [November 2014 VA examiner] simple [sic] said that there was no heart disease.  [She] likely did not known [sic] that hypertension and a large heart are considered heart disease by the VA raters likely because she was a contract (not experience[d] with VA rating laws) physician.  [She] did mention his hypertension but she did not recognize his medical record documentation of cardio-meglia likely because this patient file is about 12000 pages in size.

As indicated, the record includes both medical evidence that potentially supports the Veteran's claim and medical evidence that is against the claim.  When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).  After reviewing the evidence of record, the Board gives greater weight to the November 2014 VA examiner's medical opinion that the Veteran does not have nor has he ever been diagnosed with a heart condition because it is based on her review of the record, as well as an interview and physical examination of the Veteran.  It is also supported by the record.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it must be clear from the record that an opinion provider "was informed of the relevant facts" when rendering a medical opinion).  Specifically, the November 2014 VA examiner reviewed the Veteran's service treatment records and noted that at the time of his July 1980 service separation physical examination and report of medical history, the only diagnoses noted were those related to a bunion and chronic back pain; no diagnoses related to the heart were documented.  The November 2014 VA examiner also reviewed the Veteran's postservice medical records and noted that even his primary care physician did not feel he had coronary artery disease.  This finding was confirmed by her own examination of the Veteran, which did not generate any pathology to render a diagnosis of ischemic heart disease.  As the November 2014 VA examiner's medical opinion is supported by the record, and in particular the August 2011 opinion by the Veteran's primary care physician, Dr. M.R.S., who also reviewed the Veteran's postservice VA treatment records and found them silent for any complaints, findings, treatment, or diagnoses related to a heart disability, the Board finds that it has substantial probative value.

In relying on the November 2014 VA examiner's opinion and Dr. M.R.S.'s August 2011 opinion to deny this claim, the Board acknowledges that the Veteran's private medical opinion provider, Dr. C.N.B., has questioned the adequacy of those opinions.  In particular, with respect to the November 2014 VA examiner's opinion, he states it was "internal [sic] inconsistent" in that in one portion of her report, she noted that the Veteran had a myocardial infarction in 1967 and left ventricular hypertrophy, but then also stated there was no pathology to render a diagnosis.  He also found the November 2014 VA examiner's medical opinion to be inadequate because she failed to note the abnormal EKG results from the Veteran's service and "did not pursue or find the results of the San Jose Stress Thallium test."  Dr. C.N.B. stated, "Thallium tests are used to evaluate ischemic heart disease thus this test is important."

Regarding the allegation of an internal inconsistency, the Board notes that although the November 2014 VA examiner indicated in one portion of the report that the Veteran had suffered a myocardial infarction in 1967, it is clear that notation was made based on the Veteran's reported history because in her discussion of the medical evidence, she then stated, "History of [myocardial infarction] per claimant is not supported by medical records."  (Emphasis added.)  This statement demonstrates the examiner was giving careful consideration to the Veteran's statements, and after reviewing it within the context of the other evidence of record, concluded he did not have a past medical history of a myocardial infarction.  Thus, her notation of the myocardial infarction in 1967 was not inconsistent with her ultimate conclusion that there was no pathology to render a diagnosis.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (explaining that an examination report "must be read as a whole" to determine the examiner's rationale).  Moreover, the Board notes that at the time of the Veteran's January 1981 VA examination, it was stated that he had specifically denied having a history of a heart attack.  Therefore, it is also not shown that the November 2014 VA examiner's conclusion regarding the Veteran's more recently claimed myocardial infarction in 1967 to be an incorrect one.  

Similarly, the Board does not find that it was inconsistent for the November 2014 VA examiner to state the Veteran did not have ischemic heart disease despite a finding that he also had left ventricular hypertrophy.  Left ventricular hypertrophy is not, in and of itself, a disease but a marker for a disease involving the heart.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 910 (31st ed. 2007).  In this case, given that the examiner recognized this finding, but ultimately concluded the Veteran did not have ischemic heart disease, it is clear from her opinion she did not find this single finding to be sufficient to establish the presence of a heart disability.

Regarding the assertion that the November 2014 VA medical opinion is inadequate because the examiner failed to note the abnormal EKG results from the Veteran's service and "did not pursue or find the results of the San Jose Stress Thallium test," the Board notes that the question to be addressed in this claim is whether the Veteran has a current disability for which service connection may be granted.  Therefore, the examiner's failure to address in-service EKG findings is not necessarily fatal to the adequacy of her opinion when it was her opinion that based on the Veteran's current state of health, he did not present with any current signs or symptoms suggestive of a heart disability, to include ischemic heart disability.  Inasmuch as the results from the September 2011 stress thallium test show that the Veteran's heart is "normal," the Board finds her failure to review those results does not affect the adequacy of her opinion, as it would not have altered the outcome of her opinion, which is that the Veteran did not have nor had he ever had a heart disability.

With respect to the August 2011 opinion by the Veteran's primary care physician, Dr. M.R.S., Dr. C.N.B., has questioned its adequacy for a variety of reasons.  In particular, he states Dr. M.R.S. "minimized" the Veteran's service time, did not have all of the Veteran's service treatment records to review, "did not give another more likely diagnosis to explain service time heart problems," did not adequately consider the Veteran's lay statements, and did not provide any reputable sources of medical literature to support the opinion provided, or comment on reputable medical literature that discussed a linkage between hypertension, arteriosclerosis, and ischemic heart disease.  He also stated that Dr. M.R.S.'s statements "contradict[ed] the medical evidence.  For example, [he] incorrectly describe[d] the service time heart disease as non-specific," and then suggested Dr. M.R.S. may not have had the requisite medical training to render an opinion in this case, and should have provided a curriculum vitae.

In responding to these arguments, the Board notes at the outset that the opinion provided by Dr. M.R.S. was not one sought by VA as part of the Veteran's claim for service connection for ischemic heart disease.  Rather, this opinion was provided in the context of the Veteran seeking medical treatment from his primary care physician.  For this reason, Dr. M.R.S. did not have any of the Veteran's service treatment records available to review.  The Board notes again, however, that in the context of determining whether the Veteran has a current disability for which service connection may be granted, the fact that a medical opinion provider does not have any service treatment records to review does not necessarily render that opinion inadequate.  In the case of Dr. M.R.S.'s opinion, it is clear (and contrary to what was alleged) that he did consider the Veteran's lay statements, which was that he felt he had ischemic heart disease.  Dr. M.R.S. then considered that statement in the context of the Veteran's postservice VA treatment records and found that he had "not complained of those things in the past . . . and there is no record of any of that."

Dr. C.N.B. also provides no basis for his suggestion that Dr. M.R.S. should have discussed medical literature to support the rationale of his opinion, which was that the Veteran did not have coronary artery disease.  Dr. M.R.S.'s opinion was based on his physical examination of the Veteran, which was normal, as well as the results of an EKG test performed the same day as his examination, which also did not show any signs of an ischemic problem.  As Dr. C.N.B. does not explain how medical literature might have strengthened or altered Dr. M.R.S.'s opinion, the Board declines to find that this omission in any way lessens the adequacy of his opinion.  Likewise, given that it was Dr. M.R.S.'s finding that the Veteran did not have coronary artery disease, Dr. C.N.B. does not provide sufficient justification to explain why Dr. M.R.S. should have then also commented on medical literature discussing a linkage between hypertension, arteriosclerosis, and ischemic heart disease.

Regarding Dr. C.N.B.'s allegation that Dr. M.R.S. provided contradictory statements by incorrectly describing the Veteran's "service time heart disease as non-specific," the Board notes that at no time did Dr. M.R.S. ever comment on the Veteran's in-service heart findings, as he did not even have any service treatment records to review.  Rather, it was the January 1981 VA examiner who stated the Veteran's in-service EKGs showed non-specific changes.  Finally, as Dr. M.R.S. is the Veteran's primary care physician and an internist with a medical degree, the Board declines to find that his failure to provide a curriculum vitae renders his opinion inadequate.  The Court has held that in the absence of evidence [vs. mere allegation] casting doubt on such, the Board may presume the competence of a VA medical examiner.  See Cox v. Nicholson, 20 Vet. App. 563, 568-70 (2007) (rejecting argument that VA cannot rely upon medical opinions that do not explicitly state the qualifications of the examiner).

As for Dr. C.N.B.'s medical opinions, which are to the effect that the Veteran has suffered from ischemic heart disease since service, the Board notes that these opinions are premised entirely on the Veteran's in-service findings related to the heart, the postservice evidence showing that the Veteran has a longstanding history of hypertension, as well as the statements from the Veteran and his spouse which are to the effect that he has suffered from cardiac symptoms continuously since service.  With regards to the Veteran's service treatment records, the Board recognizes that it is the Veteran's belief that he both sought and was treated for cardiac symptoms in service.  However, his service treatment records clearly show he was treated for a duodenal ulcer.  During the course of that treatment, diagnostic testing was completed which resulted in findings "suggestive" of ischemia.  And despite the notations of "heart disease" in the December 1967 and January 1968 physical profile records, it is noted that ischemic heart disease was not actually diagnosed in service.  Indeed, when the Veteran sought treatment for chest pain in January 1968, such symptom was attributed to him having been in a bended position for a prolonged period of time.  His subsequent service physical examinations in October 1969, June 1972, June 1974, September 1967, July 1976, and upon retirement in July 1980, also specifically noted that clinical evaluations of the Veteran's heart and vascular systems were normal.  Importantly, in September 1976 and July 1980, the Veteran also completed reports of medical histories wherein he denied having or ever having shortness of breath, pain or pressure in the chest, palpitation or pounding heart symptoms, heart trouble, or high or low blood pressure.  These findings provide support for a finding that the Veteran did not have a heart disability/ischemic heart disease in service.

Also supportive of a finding that the Veteran did not have a heart disability/ ischemic heart disease in service or within one year of his separation from service, is the report from a VA examination conducted in January 1981 (and within his first postservice year).  At that time, it was noted that a physical examination of the heart and peripheral pulses was normal, and that there was no evidence of heart disease.  The January 1981 VA examiner also reviewed the Veteran's service treatment records and determined that the in-service EKG results represented non-specific changes with no etiology ever found.  In questioning the adequacy of Dr. M.R.S.'s August 2011 opinion, Dr. C.N.B. stated that the in-service EKG results were "not non-specific but rather specific for inferior wall ischemia."  See May 2012 private medical opinion by Dr. C.N.B.  The Board observes again, however, that a complete reading of the in-service hospitalization report shows that it stated, "No etiology could be elicited for the T-wave inversions in the inferior leads of the EKG.  These changes are nonspecific and conceivably could be due to ulcer, although are more suggestive of inferior wall myocardial ischemia."  (Emphasis added.)  Accordingly, it cannot be said that the January 1981 VA examiner provided an inaccurate assessment of the in-service EKG readings when, at the time they were conducted, it was also observed that they were nonspecific and only suggestive of myocardial ischemia, versus definitive for ischemic heart disease.

To the extent Dr. C.N.B. has suggested that "hypertension and a large heart are considered heart disease by the VA raters," and thus his postservice diagnosis of hypertension is essentially equivalent to a finding of ischemic heart disease, the Board disagrees.  Not only are hypertension and ischemic heart disease two, separate medical diagnoses, but the VA Rating Schedule also recognizes them to be two, separate medical diagnoses.  Notably, ischemic heart disease may be awarded service connection on a presumptive basis if a Veteran is determined to have been exposed to herbicides in service, but hypertension may not.  See 38 C.F.R. § 3.309(e), and note 2, following ("For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.") (emphasis added).  Therefore, while the Board finds no reason to dispute Dr. C.N.B.'s assertion that hypertension can cause cardiac diseases and are often diagnosed simultaneously, the fact that the Veteran has a diagnosis of hypertension is not sufficient reasoning to then find that he has ischemic heart disease, as a separate diagnosis of ischemic heart disease is still required.  Importantly, the record (in the form of postservice VA treatment records) does not support a finding of ischemic heart disease.  As Dr. C.N.B., himself noted, "Thallium tests are used to evaluate ischemic heart disease thus this test is important."  In this case, the Veteran's September 2011 thallium stress test demonstrated that he had a normal heart.  Dr. C.N.B. does not address this specific finding in his May 2012, September 2015 or February 2016 private medical opinion reports.

Dr. C.N.B. has also based his favorable opinions, in part, on statements from the Veteran and his spouse, which are to the effect that he has suffered from cardiac-related symptoms continuously since service.  Unfortunately however, the Board cannot find these statements to be credible and persuasive because they are inconsistent with prior and other statements of record.  It is understandable that the passage of time can affect the reliability of recollections.  Significantly, and as was previously discussed above, in the Veteran's September 1976 and July 1980 reports of medical history, which were completed by him, he denied having or ever having shortness of breath, pain or pressure in the chest, palpitation or pounding heart symptoms, heart trouble, or high or low blood pressure.  At the time of the January 1981 VA examination, it was also noted that the Veteran did not have shortness of breath, wheezing, cough, orthopnea, ankle edema, or palpitations.  In August 2011, when the Veteran told Dr. M.R.S., his primary care physician, that he thought he had a heart disability, Dr. M.R.S. reviewed the Veteran's VA treatment records and found that he had never "complained of those things," and that there was no record of any such symptoms in his treatment records.  Dr. M.R.S. also noted that, on the day of his examination, the Veteran did not have chest pain or shortness of breath.  Finally, at the November 2014 VA examination, the Veteran again denied experiencing angina, shortness of breath, fatigue, dizziness, or syncope attacks.

The Court has held that lay statements made in connection with medical treatment may be afforded greater probative value than later statements made with self-interest in mind.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  Given the Veteran's inconsistent statements as to whether he suffers from any cardiac-related symptoms, the Board finds his most recent recollections that he has had cardiac-related symptoms continuously since service to be not persuasive.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (While the absence of any corroborating medical evidence supporting a veteran's assertions, in and of itself does not render his lay statements incredible, the absence of such evidence may be used to assess his credibility).  As the Board cannot find the Veteran's recent recollections, or those of his spouse's to be credible and persuasive in regard to the Veteran having symptoms continuously since service, to the extent Dr. C.N.B.'s opinions rely on those statements, the Board must find those opinions to be less probative.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that a physician's opinion based on an inaccurate factual premise has no probative value). 

Finally, in various statements the Veteran and his spouse have submitted the report of a May 2010 abdominal aortic aneurysm (AAA) screen to support their argument that the Veteran has a heart disability/ischemic heart disease.  Specifically, this report states that the Veteran has "Mild atherosclerotic disease at the abdominal aorta," but "No abdominal aortic aneurysm is present."  Atherosclerosis is defined as "a common form of arteriosclerosis with formation of deposits of yellowish plaques (atheromas) containing cholesterol, lipoid material, and lipophages in the intima and inner media of large and medium-sized arteries."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 174 (31st ed. 2007).  After reviewing the May 2010 AAA screen report, the Board finds that it does not support a finding of a heart disability/ ischemic heart disease.  As the report explains, the AAA screen showed "some cholesterol and hardening of the abdominal aorta, but no aneurysm."  (Emphasis added.)  While VA regulations define ischemic heart disease as inclusive of atherosclerotic cardiovascular disease, it makes clear that the atherosclerosis must be located in the coronaries in order to be presumptively service-connected as secondary to herbicide exposure, and excludes systemic atherosclerosis.  See 38 C.F.R. § 3.309(e).  By that same reasoning, a finding of atherosclerosis in the abdominal aorta is not akin to a finding of a heart disability, as it is located in the Veteran's abdomen and not his heart.  Notably, the Veteran's treating physicians did not diagnose a heart disability/ischemic heart disease after the May 2010 AAA screen.  He was also provided a more focused test of his heart circulatory system in September 2011, and that thallium stress test showed that his heart was normal.  

In conclusion, it is not persuasively shown that the Veteran has been treated for, much less diagnosed with, a disability related to the heart during the appeal period.  See McClain v. Nicholson, 21 Vet App 319 (2007) (finding that the requirement of having a disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim").  The Veteran's own allegations that he has a heart disorder/ischemic heart disease are not competent (and probative) evidence on the question of whether he has such a disability.  While he is competent to observe that he may have what he believes to be cardiac symptoms (such a chest pain, shortness of breath, and palpitations of the heart), whether the clinical findings represent an underlying heart disability entity is a medical question beyond the scope of common knowledge, and requires medical training/expertise to diagnose.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board).

As has been explained, a threshold legal requirement for substantiating a claim of service connection is that there must be evidence that the Veteran actually has the disability for which service connection is sought.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Here, the evidence does not persuasively show that the Veteran has (or during the pendency of this claim has had) a chronic heart disorder/ischemic heart disease.  Absent persuasive competent and credible evidence of a diagnosis of a heart disorder/ischemic heart disease, there can be no valid claim of service connection for such a disability.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Accordingly, the preponderance of the evidence is against a claim of service connection for a heart disorder/ischemic heart disorder, to include as secondary to his exposure to herbicides, and the appeal in this matter must be denied.

Increased rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion.  Schafrath v. Derwinski, 1 Vet. 589 (1991).  It is not expected that all cases will show all findings specified; however, findings sufficiently characteristic to identify the diseases and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In addition, the Court has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

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.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.

Right and left foot hallux valgus

The Veteran seeks an increased rating for his right and left foot hallux valgus.  The RO has evaluated the Veteran's right foot hallux valgus as 10 percent disabling under Diagnostic Codes 5280 and 5284.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27.  Here, the Veteran's right foot hallux valgus is rated generally under Diagnostic Code 5280 for unilateral hallux valgus, and more specifically under Diagnostic Code 5284 for other foot injuries.

The Veteran's left foot hallux valgus is evaluated as 10 percent disabling under Diagnostic Code 5280 for unilateral hallux valgus.  

Under Diagnostic Code 5280, unilateral hallux valgus will be rated as 10 percent disabling when it requires surgical operation with resection of the metatarsal head or if it is severe, meaning it is equivalent to amputation of the great toe.  This is the only disability rating available under Diagnostic Code 5280.  See 38 C.F.R. § 4.71a.

Under Diagnostic Code 5284 for other foot injuries, a 10 percent rating is warranted for a moderate disability of the foot, a 20 percent rating is warranted for a moderately severe disability of the foot, and a 30 percent rating is warranted for a severe disability of the foot.  Actual loss of use of a foot is to be rated 40 percent disabling.  See 38 C.F.R. § 4.71a.  

The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.

The pertinent evidence of record consists of the Veteran's postservice VA treatment records, which show that the Veteran is followed for severe hallux valgus deformity in the right foot and moderate hallux valgus deformity in the left foot; the reports from VA examinations conducted in October 2013 and November 2014; two private medical opinions from Dr. C.N.B, dated July 2014 and February 2016; and lay statements from the Veteran and his spouse.

On October 2013 VA examination, it was noted that the Veteran had hallux valgus in both the right and left feet.  The Veteran reported that these conditions had worsened over time.  On examination, the Veteran's bilateral hallux valgus was noted to have mild or moderate symptoms.  It was also noted that the Veteran had undergone a metatarsal osteotomy/metatarsal head osteotomy for his conditions in 1988 and 1989.  The Veteran's bilateral hallux valgus did not require him to use any assistive devices, and it was not found that his function was so diminished that amputation with prosthesis would equally serve the Veteran.  The examiner noted that the Veteran's posture and gait were within normal limits.

On November 2014 VA examination, the Veteran reported having pain and swelling in the feet.  He described the pain as a burning sensation on both feet, and stated that flare-ups impacted his feet and heels in that they became tender.  He also stated he was limited in mobility due to severe pain.  The Veteran further reported that his disabilities had worsened even after surgical intervention, which appeared to have had no effect on his condition.  On examination, the Veteran was shown to have bilateral hallux valgus with mild or moderate symptoms, and a calcaneal spur in both feet that was described as mild.  The examiner further indicated that the Veteran's foot disabilities chronically compromised his weight-bearing and required the use of a cane on a chronic basis.  It was noted that the Veteran had undergone surgical procedures for both feet in 1989, with pain being a residual symptom from those procedures.  The examiner stated the Veteran had pain on movement, pain on weight-bearing, and pain on non-weight-bearing.  He also had functional loss due to pain, during flare-up/s and/or when the joint was used repeatedly over a period of time; the functional loss was described as "standing and walking," for both feet.  In conclusion, the examiner diagnosed bilateral hallux valgus and bilateral calcaneal spur, and stated that these disabilities made it difficult for the Veteran to stand or walk for long periods of time.  She did not feel his function was so diminished that amputation with prosthesis would equally serve the Veteran.

In Dr. C.N.B.'s July 2014 private medical opinion report, he stated that the Veteran had plantar fasciitis secondary to his right and left foot hallux valgus, pain on palpation of both plantar fascia and origins and Achilles tendon, and noted that the Veteran wore special shoes and walked with a slow wide based gait.  He also noted that the Veteran's feet were pained when standing and walking.  

In various statements, and at the February 2016 Central Office hearing, the Veteran and his spouse have stated that he experiences pain, burning sensations, and aches in his feet.  He notes he cannot stand for very long and can only walk a block before he is limited in mobility by his pain.  He also notes he has had multiple surgeries performed on his feet.

As an initial matter, the Board notes that in a March 2015 rating decision, the Veteran was awarded service connection for bilateral plantar fasciitis and calcaneal heel spurs, rated 10 percent, effective July 28, 2010.  The Veteran has not disagreed with that decision; therefore, the only matters to be addressed herein are the ratings to be assigned for his right and left foot hallux valgus. 

As noted, the Veteran is assigned a 10 percent rating for his left foot hallux valgus under Diagnostic Code 5280.  This is the maximum rating available under this diagnostic code.  The Board has considered whether the Veteran's left foot hallux valgus may be rated under another diagnostic code; however, in Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court held that when a condition is specifically listed in the Schedule, it may not be rated by analogy.  See Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'").  As the Veteran's left foot hallux valgus is a listed condition under Diagnostic Code 5280, VA has a duty to apply that diagnostic code to his disability and determine the appropriate disability rating.  In this case, the Veteran is already assigned the maximum rating available for his left foot hallux valgus.

The Veteran's right foot hallux valgus is also assigned a 10 percent rating; however, it has been rated under Diagnostic Code 5284, for other foot injuries, which does afford ratings higher than 10 percent.  The Board finds, however, that because the Veteran's right foot disability has been diagnosed as hallux valgus, which is a listed foot condition and not one that needs to be rated by analogy, it should (for the reasons discussed directly above) be evaluated under Diagnostic Code 5280 and not Diagnostic Code 5284.  See also Yancy v. McDonald, 25 Vet. App. 484, 491 (2016) (holding that the "plain meaning of the word 'injury' limits the application of [Diagnostic Code] 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions).  Under Diagnostic Code 5280, the Veteran's currently assigned 10 percent rating is the maximum rating available for his right foot hallux valgus.

As the Veteran has been assigned the maximum schedular rating available for his right and left foot hallux valgus, the Board finds that a schedular rating in excess of 10 percent is not warranted for either of the disabilities.  

In reaching this decision, the Board recognizes that the crux of the Veteran's appeal appears to be that he feels the separate rating assigned for his right foot hallux valgus should have been granted effective from a date earlier than the one currently assigned.  See February 2016 Central Office hearing transcript, pp. 5-8; see also February 2016 private medical opinion by Dr. C.N.B.  As was explained in the Introduction, however, this is a matter that has not yet been addressed by the AOJ; therefore, the Board may not address that issue at this time.

Finally, at the February 2016 Central Office hearing, the Veteran's representative indicated their awareness that the 10 percent ratings currently assigned for the Veteran's right and left hallux valgus were the maximum ratings assignable for those disabilities.  However, it was requested that the Veteran be considered for an extraschedular rating due to the amount of pain he experiences in his feet.  See February 2016 Central Office hearing transcript, pp. 8-9.  This request will be addressed below in the section pertinent to extraschedular consideration for the Veteran's increased rating claims.




Back disability & Radiculopathy of the bilateral lower extremities

Lumbosacral strain and degenerative arthritis of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula, outlined below), and intervertebral disc syndrome is rated under the General Rating Formula or based on incapacitating episodes, whichever is more favorable to the veteran.  38 C.F.R. § 4.71a, DCs 5237, 5242 and 5243.  For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71, DC 5243, Note 1.

Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion for the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code.  Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is to 240 degrees.  Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation.  38 C.F.R. § 4.71a.

The Veteran's back disability, which is manifested by muscle spasm, degenerative disc disease, and spondyloarthropathy of the L5-S1, has been assigned a 20 percent rating prior to October 21, 2013, and a 10 percent rating from that date.  Consequently, the focus is on those schedular criteria that would provide for a rating in excess of 20 percent prior to October 21, 2013, and a rating in excess of 10 percent from that date.

The pertinent evidence of record consists of the Veteran's postservice VA treatment records, which show that the Veteran is followed for low back pain; the reports from VA examinations conducted in October 2013 and November 2014; two private medical opinions from Dr. C.N.B, dated May 2012 and July 2014; and lay statements from the Veteran and his spouse.

In a May 2012 private medical opinion, Dr. C.N.B. reported that the Veteran walked with a limp, could not rise from a chair without an armrest, and had pain and numbness in his right lower extremity.  He stated the Veteran's range of motion was limited by pain, weakness, fatigue, lack of endurance, incoordination, stiffness, and spasms.  He also stated:

Deluca Pain and repetition factors considered and worse case scenario limitations are listed below.

							EXAM
Flexion/extension (NRLS = 90/30) 		30/5
[Left/right] rotation (NRLS = 30)			30/30
[Left/right] lateral bending (NRLS = 30)		20/20

As for the Veteran's right leg weakness/numbness, Dr. C.N.B. characterized it as a "paralyzing numbness that often is accompanied by a burning sensation of a chronic nature."

On October 21, 2013 VA examination, it was the Veteran's report that his condition had worsened since its original onset and that flare-ups of the condition affected his ability to sleep at night.  He noted that he took Meloxicam and Gabapentin with benefit.  On range of motion testing, forward flexion was to 90 degrees or greater with no objective evidence of painful motion; extension was to 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater; lateral flexion was to 30 degrees or greater with no objective evidence of painful motion; lateral flexion was to 30 degrees or greater with no objective evidence of painful motion; right lateral rotation was to 30 degrees or greater with no objective evidence of painful motion; and left lateral rotation was to 30 degrees or greater with no objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with 3 repetitions, and there were no additional losses in range of motion after repetitive testing.  The examiner did note, however, that the Veteran experienced pain on movement, as well as localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine.  The Veteran did not have any guarding or muscle spasm of the thoracolumbar spine, and muscle strength testing was normal with no muscle atrophy present.  Reflex and sensory examinations were all normal, and straight leg raising test was also negative on both the right and left sides.  The Veteran was not noted to have radiculopathy.  The Veteran was also not noted to have any other neurological abnormalities as a result of his back disability or intervertebral disc syndrome (IVDS).  The Veteran did not use any assistive devices for his back.  The examiner opined that the Veteran's back disability would not have any functional impact on his ability to work, and noted that the Veteran's posture and gait were within normal limits.  There were contributing factors of pain, weakness, fatigability and/or incoordination but no additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time.  

In a July 2014 private medical opinion, Dr. C.N.B. reported that the Veteran walked with a limp, could not rise from a chair without an armrest, and had pain and numbness in his right lower extremity.  He stated the Veteran's range of motion was limited by pain, weakness, fatigue, lack of endurance, incoordination, stiffness, and spasms.  He also stated:

Deluca Pain and repetition factors considered and worse case scenario limitations are listed below.

							EXAM
Flexion/extension (NRLS = 90/30) 		30/5
[Left/right] rotation (NRLS = 30)			20/20
[Left/right] lateral bending (NRLS = 30)		20/20

Dr. C.N.B. then noted that the Veteran had patchy numbness in both lower extremities, 4 out of 5 strength in all lower extremity muscles, and right foot pain with pins and needles feelings.  Dr. C.N.B. also stated he disagreed with the findings from the October 2013 VA examination report because he had found "major abnormalities" in the Veteran's back that were "consistent with the fact that the [Veteran] has had documented back problems since service . . . ."  He also noted that the Veteran had bladder/urinary incontinence, which was likely due to his lumbar spine injury.  

On November 2014 VA examination, the Veteran complained of worsening back pain with pain radiating down both legs.  He also reported that flare-ups of the condition impacted his ability to sit or walk for any distance due to the pain.  Bilateral lower extremity radiculopathy was diagnosed in addition to the service-connected back disability.  On range of motion testing, forward flexion was to 90 degrees or greater with objective evidence of painful motion at 80 degrees; extension was to 30 degrees or greater with no objective evidence of painful motion; right lateral flexion was to 30 degrees or greater with objective evidence of painful motion at 30 degrees; left lateral flexion was to 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater; right lateral rotation was to 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater; left lateral rotation was to 20 degrees with objective evidence of painful motion at 20 degrees.  The Veteran was able to perform repetitive-use testing with 3 repetitions.  After repetitive testing, the Veteran did not have any additional limitation in range of motion.  He did, however, have less movement than normal and pain on movement.  The Veteran also had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, and guarding and/or muscle spasm, which did not result in abnormal gait or spinal contour.  The Veteran's muscle strength testing, reflex examination, sensory examination, and straight leg raising test were all normal.  He was, however, shown to have radiculopathy in both lower extremities.  Specifically, he was noted to have severe intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and moderate numbness in both lower extremities.  The Veteran did not have any other neurological abnormalities related to the back, and he was not shown to have IVDS.  The Veteran did require the use of a cane on a constant basis, as it helped with his ambulation, and it was noted that the functional impact of the Veteran's back disability on his ability to work was that it was difficult for him to bend, lift, sit, stand, or walk for long periods of time.  The examiner noted further that the Veteran's posture was within normal limits, but he walked with an antalgic gait.  This was due to knee pain.  The Veteran was also noted to have contributing factors of pain, weakness, fatigability and/or incoordination and there were additional limitation of functional ability of the back during flare-ups or repeated use over time.  The additional limitation was described as pain and decreased range of motion when lifting.  The examiner could not provide the degree of additional range of motion lost, and explained that the Veteran stated the additional limitation of motion varied.  Therefore, to estimate the degree of additional range of motion lost would require resorting to mere speculation.  

At the February 2016 Central Office hearing, the Veteran and his spouse testified that he experiences constant pain from the lower back that radiates into his legs.  The Veteran noted that most nights, he tossed and turned in bed, trying to find a comfortable position to sleep in.  He also noted that he was unable to lift things.  The Veteran testified that during flare-ups he could bend halfway to his ankles with the pain being worse to his thighs.  Both he and his wife also noted that he experienced muscle spasms, pain in the legs and feet, and cramps on a daily basis.  

After reviewing the foregoing evidence, the Board finds that the Veteran's service-connected back disability warrants a 20 percent rating for the entire appeal period.  Significantly, at the time of the Veteran's claim for an increased rating, he was in receipt of a 20 percent rating for his back disability.  The 10 percent rating was assigned based on the findings shown during his October 21, 2013 VA examination.  However, for reasons that will be explained directly below, it's the Board's opinion that from October 21, 2013, the Veteran's back disability continues to meet the necessary requirements for a 20 percent rating under 38 C.F.R. § 4.71a, DCs 5237, 5242.  It is not shown, however, that a rating in excess of 20 percent is warranted for any portion of the appeal period.

In particular, the evidence shows that at the October 21, 2013 VA examination, the Veteran's ranges of motion were within the normal range, even after repetitive use testing, and that he did not have any guarding or muscle spasms.  He also did not have an abnormal posture or gait.  He did, however, demonstrate pain on movement and had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine.  Although such findings would normally result in a 10 percent rating under the General Rating Schedule, the Board recognizes that in May 2012 and July 2014 private medical opinions from Dr. C.N.B., it was reported that the Veteran walked with a limp and suffered from muscle spasms.  Resolving reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating is warranted for muscle spasm or guarding severe enough to result in an abnormal gait.  See 38 C.F.R. § 4.71a, DCs 5237, 5242.  

Similarly, on November 2014 VA examination, although the Veteran also demonstrated ranges of motion within the normal ranges with no additional limitations in his range of motion after repetitive testing, he did demonstrate objective evidence of painful motion at 80 degrees forward flexion.  He also had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, guarding and/or muscle spasm, and walked with an antalgic gait.  Accordingly, the Board finds that a 20 percent rating is also warranted based on these findings.

It is not persuasively shown, however, that at any point during the appeal period the Veteran's back disability was manifested by forward flexion of the thoracolumbar pine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Consequently, the next higher (40 percent) rating under the General Rating Schedule is not warranted.  38 C.F.R. § 4.71a, DCs 5237, 5242.  In reaching this determination, the Board recognizes that in private medical opinions dated May 2012 and July 2014, it was the opinion of Dr. C.N.B. that the Veteran's forward flexion was to 30 degrees.  However, his report does not reflect these were objective measurements of the Veteran's range of motion.  Rather, he stated these were "worse case scenario limitations" that he arrived at after considering "Deluca Pain and repetition factors."  The Board notes, however, that under 38 C.F.R. § 4.46, the "[a]ccurate measurement of the . . . excursion of joints . . . should be insisted on," and the "use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within [VA]."  In Dr. C.N.B.'s case, although his examinations were not conducted within VA, not providing objective assessments for the Veteran's range of motion detracts from the probative value of those portions of his medical opinion reports.

Conversely, the record does include objective evidence in the form of the October 21, 2013 and November 2014 VA examinations reports, which show that the Veteran's forward flexion was to 90 degrees or more each time, with objective evidence of painful motion at 80 degrees during the latter examination.  There was also no additional limitation in range of motion after repetitive testing during either of the VA examinations.  As there is no evidence in the record to suggest that the October 21, 2013 VA examination or November 2014 VA examination was conducted improperly, the Board finds those range of motion findings to be more probative than Dr. C.N.B.'s. 

The Board also acknowledges Dr. C.N.B.'s statement that the Veteran suffers from "major abnormalities" in the back, but emphasizes that disability ratings are to be assigned based on the impairment (i.e., level of severity) demonstrated from those disabilities, and not just the diagnosis(es) of the disability(ies) alone.  In this case, the Board has determined that the Veteran's back symptoms warrant a 20 percent rating under the General Rating Formula.

Additional factors that could provide a basis for an increase have been considered.  In particular, the Board must also evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code.  Under Note 1, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code.  

In this case, the VA examinations of record do not show that the Veteran has any bowel or bladder problems/pathologic reflexes related to his service-connected back disability.  Therefore, a separate rating for bowel or bladder incontinence is not warranted.  In reaching this determination, the Board recognizes that some question has been raised as to whether the Veteran has bladder incontinence secondary to his back disability.  See, e.g., February 2016 Central Office hearing, p. 14; February 2016 private medical opinion from Dr. C.N.B.  However, the record also reflects assertions by the Veteran and Dr. C.N.B. that he has bladder incontinence secondary to his service-connected prostate cancer.  As noted in the Introduction, entitlement to service connection for bladder incontinence was separately adjudicated in a July 2015 rating decision, and the Veteran has not yet filed a NOD with that decision.  Inasmuch as the Veteran and his witnesses have continued to make statements concerning his bladder incontinence, those statements have been referred to the AOJ for any appropriate action.  Therefore, the Veteran's bladder incontinence will not be addressed herein.

A March 2015 rating decision granted service connection for radiculopathy of the right and left lower extremities, rated 10 percent each, effective July 28, 2010.  These disabilities are rated under Diagnostic Code 8720 for neuralgia.  See 38 C.F.R. § 4.124a.

Under Diagnostic Code 8720, disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete neuralgia of the sciatic nerve.  38 C.F.R. § 4.124a.  A 60 percent rating is warranted for severe incomplete neuralgia with marked muscle atrophy.  Id.  An 80 percent rating is warranted with complete neuralgia of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost.  Id.

After reviewing the evidence of record, the Board finds that the Veteran's service-connected radiculopathy in the right lower extremity and radiculopathy in the left lower extremity warrant 20 percent ratings, each.  Pertinently, the November 2014 VA examination report shows that the Veteran's radiculopathy in the bilateral lower extremities was manifested by severe intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and moderate numbness.  The overall effect of these symptoms was that the Veteran had "moderate" radiculopathy in both lower extremities.  As noted, a moderate finding of radiculopathy warrants a 20 percent rating under 38 C.F.R. § 4.124a, DC 8720.  This rating is supported by the opinions of Dr. C.N.B. who, in May 2012, stated the Veteran had "paralyzing numbness [in the right leg] that often [was] accompanied by a burning sensation of a chronic nature," and in July 2014, indicated the Veteran had patchy numbness in both lower extremities with pain and pins and needles feeling in the right foot.  The Board notes that 20 percent is the maximum amount possible for moderate incomplete paralysis among all the Diagnostic Codes applicable to a lower extremity nerve.  As it is not shown that the radiculopathy in either of the Veteran's lower extremities is moderately severe in nature, a (still higher) rating of 40 percent is not warranted for either of those disabilities.

The Board notes parenthetically that in various statements, to include at the February 2016 Central Office hearing, it was argued that the Veteran should have been assigned a separate rating for his radiculopathy as far back as the 1980s.  As was explained in the Introduction, such an argument implicates earlier rating decisions that are final and not on appeal herein.  Accordingly, any such arguments have been referred to the AOJ to address in the first instance.

Finally, the Veteran's service-connected back disability also does not warrant a rating in excess of 20 percent based on incapacitating episodes, as intervertebral disc syndrome was not diagnosed during the October 21, 2013 or November 2014 VA examinations, by Dr. C.N.B., or during the course of his medical treatment for the lumbar spine.  Notably, even in the absence of a diagnosis of intervertebral disc syndrome, the evidence of record does not show (and the Veteran does not allege) that he has ever been prescribed bed rest by a physician.  38 C.F.R. § 4.71a, DC 5243. 

In summary, and on close review of the entire record, the Board finds that the Veteran's service-connected back disability warrants a 20 schedular percent rating for the entire appeal period.  His service-connected radiculopathy of the right and left lower extremities also warrants a 20 percent schedular rating, each.

Duodenal Ulcer

The Veteran's duodenal ulcer is rated under 38 C.F.R. § 4.114, DC 7305, and has been assigned a 10 percent rating prior to July 27, 2014, and a 20 percent rating from that date.  

Under Diagnostic Code 7305, a duodenal ulcer is assigned a 10 percent rating for a mild ulcer with recurring symptoms once or twice yearly.  A 20 percent rating is assigned for a moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging ten days in duration; or with continuous moderate manifestations.  A 40 percent rating is assigned for a moderately severe ulcer, which is less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year.  A 60 percent (maximum) rating is assigned for a severe duodenal ulcer with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.  38 C.F.R. § 4.114.  

Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule or in the regulations.  Consequently, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just."  38 C.F.R. § 4.6.

The Veteran's postservice VA treatment records reflect that he has a medical history/problem list inclusive of esophageal reflux and/or gastroesophageal reflux disorder (GERD), but are otherwise silent for any complaints, findings, or treatment related to either of those disabilities or of a duodenal ulcer.  Therefore, the pertinent evidence of record consists primarily of the reports from VA examinations conducted in October 2013 and November 2014, and the report from a July 27, 2014, private medical opinion.

On October 2013 VA examination, the Veteran reported that the current symptoms for his duodenal ulcer consisted of "occasional stomach burning," for which he took Omeprazole as needed on a continuous basis.  On examination, there were no signs or symptoms due to any stomach or duodenum conditions, and the Veteran did not have any incapacitating episodes due to signs or symptoms of any stomach or duodenum condition.  He also did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his duodenum ulcer.  In the examiner's opinion, the Veteran's duodenal ulcer was at the time of the examination, "quiescent."  

In a private medical opinion, dated July 27, 2014, Dr. C.N.B. stated the Veteran had weekly belly pain which radiated to his spine and was not relieved with Omeprazole.  He also stated the Veteran had weekly GERD with chronic symptoms, which he believed to be permanent in nature and unlikely to improve with time.  

On November 2014 VA examination, the Veteran reported that the current symptoms for his duodenal ulcer consisted of "stomach pain that is recurrent."  He also reported taking Omeprazole and Maalox on a continuous basis.  On examination, it was indicated that about 3 times a year, the Veteran experienced recurring episodes of symptoms that were not severe for an average duration of 1 to 9 days.  About twice a year, he experienced recurring episodes of severe symptoms for an average duration of less than 1 day.  He also experienced periodic abdominal pain that occurred at least monthly and was only partially relieved by standard ulcer therapy.  There was also evidence of weight loss (baseline weight: 199; current weight: 184); mild nausea that occurred four or more times per year for an average duration of 1 to 9 days; and mild vomiting that occurred once per year for an average duration of less than 1 day.  There was also evidence that about 3 times per year, the Veteran experienced incapacitating episodes that lasted an average duration of 1 to 9 days; it was described as stomach problems, constipation, and heart burn from certain foods.  The Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his duodenum ulcer.  In the examiner's opinion, the Veteran's duodenal ulcer was at the time of the examination, "active."  

Based on the foregoing evidence, it is the Board's opinion that the Veteran's duodenal ulcer has been properly assigned a 10 percent rating prior to July 27, 2014, and a 20 percent rating from that date, under 38 C.F.R. § 4.114, DC 7305.  Notably prior to July 27, 2014, the only pertinent evidence available for consideration is that of the October 2013 VA examination report.  As noted, during that examination, the Veteran's duodenal ulcer was essentially "quiescent," with him suffering from "occasional stomach burning" that he treated with medication on an as needed basis.  This disability picture is consistent with a 10 percent rating under Diagnostic Code 7305, which accounts for mild duodenal ulcers that have recurring symptoms once or twice yearly.  It is not shown that prior to July 27, 2014, the Veteran's duodenal ulcer resulted in recurring episodes of severe symptoms 2 or 3 times a year averaging 10 days in duration, or with continuous moderate manifestations.  Accordingly, a rating in excess of 10 percent is not warranted for this period.

From July 27, 2014, the evidence of record shows that the Veteran suffers from continuous moderate manifestations.  For example, it was noted in both Dr. C.N.B.'s July 27, 2014 report and the November 2014 VA examination report that the Veteran suffered from recurrent stomach pain for which he took medication on a continuous basis.  Such a disability picture is consistent with a 20 percent rating under Diagnostic Code 7305, which accounts for moderate duodenal ulcers that have recurring episodes of severe symptoms 2 or 3 times a year averaging 10 days in duration, or with continuous moderate manifestations.  

In denying a rating higher than 20 percent for the period beginning on July 27, 2014, the Board recognizes that during the November 2014 VA examination, it was observed that the Veteran had suffered from weight loss.  Although weight loss is one of the symptoms contemplated by the 40 percent rating under Diagnostic Code 7305, it is noted that the rating criteria require that the duodenal ulcer result in moderately severe symptoms, described as "less than severe but with impairment of health manifested by anemia and weight loss."  38 C.F.R. § 4.114, DC 7305 (emphasis added).  In this case, the November 2014 VA examiner specifically noted that the Veteran did not have anemia.  Similarly, the Board acknowledges that the Veteran suffers from vomiting as a result of his duodenal ulcer, which is a symptom contemplated by the 60 percent rating under Diagnostic Code 7305.  However, for a 60 percent rating, the rating criteria requires that the duodenal ulcer result in severe symptoms, described as "pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health."  38 C.F.R. § 4.114, DC 7305 (emphasis added).  In this case, the Veteran's vomiting was described as mild, not periodic, and it is also not shown that he suffers from any of the other symptoms required for a 60 percent rating under Diagnostic Code 7305 (other than the previously discussed weight loss).

Also, for the period beginning on July 27, 2014, a rating in excess of 20 percent is not warranted because it not shown that the Veteran's duodenal ulcer results in recurrent incapacitating episodes averaging 10 days or more duration at least four or more times a year.  On the contrary, at the November 2014 VA examination, it was noted that the Veteran's incapacitating episodes occurred 3 times a year with an average duration of 1 to 9 days.  

The Board has considered further whether the Veteran is entitled to a higher rating under any other diagnostic code for his gastrointestinal disability.  38 C.F.R. § 4.114.  However, it is not shown that he suffers from any of the symptoms required for a higher rating under any of the other potentially applicable diagnostic codes, e.g., DC 7306 (marginal ulcer), DC 7307 (gastritis), DC 7319 (irritable colon syndrome), DC 7346 (hiatal hernia).  Furthermore, the Veteran's service-connected disability is diagnosed as duodenal ulcer, which is specifically contemplated by the Schedule.  In Copeland v. McDonald, 27 Vet. App. 333, 337 (2015), the Court "reiterate[d] that when a condition is specifically listed in the Schedule, it may not be rated by analogy."  See also Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'").  In this regard, the Board finds that the Veteran's duodenal ulcer is appropriately rated under Diagnostic Code 7305 for the entirety of the appeal period.  See 38 C.F.R. § 4.114.

Finally, in denying a rating in excess of 10 percent prior to July 27, 2014, and a rating in excess of 20 percent from that date, for the Veteran's duodenal ulcer, the Board has considered the lay statements of record.  The Board notes, however, that the Veteran has offered little testimony as to the symptoms he experiences regarding his duodenal ulcer.  Significantly, at the February 2016 Central Office hearing, the Veteran was provided an opportunity to provide testimony about his duodenal ulcer.  However, his representative responded, "[W]e just had a brief discussion but, in regards to the ulcer, the Veteran's okay with just leaving [it] as is."  See February 2016 Central Office hearing transcript, p. 17.  Accordingly, no testimony was provided with respect to this disability.  In light of the Veteran's own reluctance to pursue this matter further, the Board finds this is additional support for denying ratings in excess of those currently assigned for his duodenal ulcer.

Extraschedular Consideration 

The Board has considered further whether referral for an extraschedular rating is appropriate.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  38 C.F.R. § 3.321(b).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.

In this case, the Veteran has requested extraschedular consideration for his bilateral hallux valgus on the basis that he experiences a lot of pain in his feet.  The record also reflects complaints of chronic pain secondary to his back.  However, pain is a symptom and impairment contemplated by the schedular criteria for the current ratings assigned.  Similarly, the Veteran's duodenal ulcer is manifested by symptoms and impairment that are contemplated by the schedular criteria for the current rating assigned.  

The Board does acknowledge that, with respect to the back, the Veteran has stated the disability prevents him from sleeping well at night.  This is not a symptom contemplated by the rating schedule for the back.  However, the record also reflects that the Veteran is service-connected for a depressive disorder, in part due to his back, and one of his primary symptoms for the depressive disorder is chronic sleep impairment.  See March 2015 rating decision.  Therefore, the Veteran is receiving compensation for the effects of his back on his ability to sleep under that disability.  
Moreover, the diagnostic codes in the rating schedule corresponding to disabilities of the back provide disability ratings on the basis of limitation of motion, ankylosis, and neurologic manifestations.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, supra.  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  The Veteran's statements regarding his physical restrictions pertain to functional limitations that are contemplated by the governing diagnostic code criteria and corresponding regulations.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45.  The inability to accomplish a task, such as those described is not a "symptom" set forth in any portion of the Rating Schedule, yet it is a result of the same symptoms of pain, painful motion, and limitation of motion.  Thus, it is a result contemplated by the rating criteria as it is based on the same symptomatology.  As the rating schedule contemplates the Veteran's disabilities and he does not have any additional symptoms that have not been attributed to a specific service-connected disability, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  Thus, referral for assignment of an extraschedular evaluation in this case is not in order.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).

Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such is raised by the record.  Here, the record reflects that the Veteran and his spouse have asserted that his employability is affected by his service-connected disabilities, and in particular his prostate cancer and back.  However, the record also shows that for the entire period on appeal, the Veteran has been in receipt of a 100 percent rating for his prostate cancer.  Also throughout the appeal period, the Veteran has been in receipt of special monthly compensation (SMC) at the (s) rate; this award is based on his prostate cancer as a single disability rated 100 percent with additional service-connected disabilities combining to have a schedular rating that is independently ratable at 60 percent or more.  As the Veteran has been in receipt of a 100 percent rating for his prostate cancer, and has also been in receipt of SMC, throughout the entire period on appeal, his claim for TDIU is moot.  Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010).



(CONTINUED ON NEXT PAGE)

ORDER

Service connection for ischemic heart disease, for purposes of entitlement to retroactive benefits, is denied.

A rating in excess of 10 percent for right foot hallux valgus is denied.  

A rating in excess of 10 percent for left foot hallux valgus is denied.  

A rating in excess of 20 percent prior to October 21, 2013, for a back disability, is denied.

A 20 percent rating for a back disability from October 21, 2013, is granted, subject to the laws and regulations governing payment of monetary awards.  

A 20 percent initial rating for radiculopathy of the right lower extremity is granted, subject to the laws and regulations governing payment of monetary awards.

A 20 percent initial rating for radiculopathy of the left lower extremity is granted, subject to the laws and regulations governing payment of monetary awards.

A rating in excess of 10 percent prior to July 27, 2014, for a duodenal ulcer, and a rating in excess of 20 percent from that date, is denied.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs