Citation Nr: 18153997 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 10-32 011A DATE: November 28, 2018 ORDER Entitlement to service connection for lumbar spine osteoarthritis is granted. Entitlement to a compensable rating for right fourth toe arthroplasty is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a compensable rating for left eye pterygium is remanded. Entitlement to a compensable rating (prior to December 7, 2011) and a rating in excess of 10 percent (from December 7, 2011) for left third finger scar from ganglion cyst excision is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine osteoarthritis is attributable to service. 2. For the entire period of claim, the Veteran’s right fourth toe arthroplasty disability has already been assigned the highest rating available under the law (i.e., 0 percent) without violating the Amputation Rule. CONCLUSIONS OF LAW 1. Lumbar spine osteoarthritis was incurred in peacetime service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). 2. A compensable rating for right fourth toe arthroplasty is precluded by the Amputation Rule. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes (DCs) 5172 (Amputation Rule) and 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to November 1970 and from May 1974 to May 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and June 2010 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). The Veteran testified before the undersigned Veterans Law Judge at an April 2015 hearing. A transcript of that hearing has been associated with the record. In March 2016, the Board remanded the current issues for additional development. [In July 2015, the Veteran filed a notice of disagreement (NOD) appealing the denial of service connection for prostate cancer and for bladder cancer in a June 2015 rating decision. Thereafter, the RO took action in accordance with 38 C.F.R. § 19.26(a) by sending him an appeals process explanation letter in July 2015, acknowledging receipt of his July 2015 NOD therein. The record reflects that the RO is currently undertaking development regarding these issues (including as recently as October 2018) to allow for issuance of a statement of the case (SOC) addressing these issues, and such action precludes the need for the Board to remand the matters for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).] 1. Entitlement to service connection for a low back disability, diagnosed as lumbar spine osteoarthritis. In a March 2016 decision, the Board reopened a previously denied claim for entitlement to service connection for a low back disability. The Veteran contends that he currently has a low back disability which began during his military service and has continued to the present. The medical evidence of record, including the report of an August 2016 VA spine examination, shows that the Veteran has lumbar spine osteoarthritis. The Veteran’s service treatment records (STRs) include a March 1992 Report of Medical History which indicated that he had a history of recurrent back pain, described as “Occasional musculoskeletal LBP [low back pain].” Seven months after his May 1992 service discharge, the Veteran underwent a VA spine examination in December 1992. On that occasion, he reported that his low back pain had begun in service in 1976 and that he had back pain about once a month lasting for two to three hours. The VA examiner diagnosed him with low back pain, very mild, muscular. Contemporaneous x-rays of his lumbar spine in December 1992 revealed suspect minimal sclerosis of the upper sacroiliac joints bilaterally and minimal productive change of the sacrococcygeal joint at L5. At an August 2016 VA spine examination, the Veteran reported that his back pain started when he was in the service, and that since his service discharge he had had pain on both sides of his lower back. The VA examiner diagnosed him with lumbar spine mild osteoarthritis, scoliosis, and intervertebral disc degeneration, and the date of diagnosis for the osteoarthritis was noted to be 1992 (based on the Veteran’s report). In an accompanying medical opinion in August 2016, the VA examiner opined that the Veteran’s lumbar spine osteoarthritis was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury or event. For rationale, the VA examiner noted that the Veteran’s STRs showed low back pain, likely muscular; in addition, the VA examiner noted that, because the December 1992 x-ray findings were “suggestive of osteoarthritis” and were “so close to his date of separation, it’s at least as likely as not that the degenerative changes were present in service.” The Board finds that the favorable medical opinion provided by the VA examiner in August 2016 is supported by a thorough rationale for the conclusion reached, as this rationale took into account the Veteran’s in-service low back pain (as documented on his March 1992 Report of Medical History therein), the pertinent x-ray evidence in December 1992 (i.e., within one year of the Veteran’s service discharge), and the continuity of his low back symptoms from the time of his service to the present. Therefore, the Board finds that the August 2016 medical opinion is entitled to substantial probative weight and is persuasive of a conclusion that the Veteran’s current lumbar spine osteoarthritis was incurred during his active service. In light of the foregoing, the Board concludes that service connection for a low back disability, diagnosed as lumbar spine osteoarthritis, is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(b). [The Board also finds that the instant decision applies to – and resolves – all pending claims of service connection for a low back disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).] 2. Entitlement to a compensable rating for right fourth toe arthroplasty. Generally, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria 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. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate “staged” ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s right fourth toe arthroplasty disability has been rated under DC 5284, which provides that a 10 percent rating is warranted for other foot injuries that are moderate, a 20 percent rating is warranted for other foot injuries that are moderately severe, and a 30 percent rating is warranted for other foot injuries that are severe. A Note states that, for other foot injuries with actual loss of use of the foot, a 40 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5284. [While the Veteran was diagnosed at a September 2013 VA foot examination with additional right foot disabilities, including metatarsalgia, hammer toes, and hallux valgus, a VA physician opined in February 2014 that all of these disabilities were less likely than not related to the Veteran’s right fourth toe arthroplasty. Therefore, the criteria for rating such unrelated foot disabilities (under 38 C.F.R. § 4.71a, DCs 5279, 5280 and 5282), as well as the criteria for rating any foot disabilities which are not shown to be present (under 38 C.F.R. § 4.71a, DCs 5276, 5277, 5278, 5281, and 5283) need not be discussed.] Under the Amputation Rule, the total combined rating for any extremity shall not exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. DC 5172 provides that a 0 percent rating is warranted for amputation of toes (other than the great toe) without metatarsal involvement, and a 20 percent rating is warranted for amputation of one or two toes (other than the great toe) with removal of the metatarsal head. 38 C.F.R. § 4.71a, DC 5172. The Veteran’s November 1988 right fourth toe arthroplasty did not include metatarsal involvement. As such, a rating for the Veteran’s right fourth toe arthroplasty disability cannot exceed 0 percent, in accordance with the Amputation Rule. See id. The Board has considered the pertinent evidence of record during the appeal period, including the reports of VA foot examinations in September 2013 (wherein the Veteran described his right foot pain as “constant sharp cramping pain”) and in January 2017 (wherein the VA examiner characterized the severity of the Veteran’s right foot symptoms as “Moderate”). However, as outlined above, the Amputation Rule precludes a compensable rating under any diagnostic code (including DC 5284) as well as on the basis of limitation of motion (pursuant to 38 C.F.R. §§ 4.10, 4.40, and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995)). Accordingly, the Board finds that a compensable rating for the Veteran’s right fourth toe arthroplasty disability must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for hypertension. In a March 2016 decision, the Board reopened a previously denied claim for entitlement to service connection for hypertension, upon finding that new and material evidence had been received which was sufficient to reopen such claim. The Veteran contends that he currently has hypertension which began during his military service (evidenced, according to him, by symptoms such as headaches and vomiting) and has continued to the present. The Veteran’s STRs do not document any complaints, findings, diagnosis, or treatment of hypertension during his military service. His STRs do note his complaints of headache symptoms (including in March 1975 and October 1976) as well as nausea and vomiting (including in February 1981). At his March 1992 service separation examination, his sitting blood pressure measured 130/68. On the same date, a March 1992 Report of Medical History indicated a response of “don’t know” as to whether he had a history of high or low blood pressure; in addition, it was indicated “yes” that he had a history of frequent or severe headache (described as “Mild occasional tension headaches – Frontal – relieved [with] Tylenol”) as well as a history of car/train/sea/air sickness. Three weeks after his May 1992 service discharge, a June 1992 VA treatment record noted the Veteran’s complaints of dizziness and headache, and it was noted that he was concerned about recent increase in his blood pressure. He reported that he had had headaches on and off for two years, and that two weeks ago on a physical examination his blood pressure was up. At the present examination in June 1992, his blood pressure measured 140/90. He was assessed with hyperlipidemia, and it was noted that he had “borderline blood pressure” and that his blood pressure should be rechecked in three months. Thereafter, a July 1993 VA treatment record noted the Veteran’s history of borderline hypertension. A May 1996 VA treatment record noted his history of occasional increased blood pressure, as well as his history of occasional headaches off and on “esp[ecially] when his blood pressure goes up.” One day later in May 1996, he was diagnosed with hypertension. Subsequent treatment records have documented his ongoing treatment for hypertension. At an August 2016 VA hypertension examination, the Veteran reported that he had been diagnosed with hypertension in 1992, after he was discharged from service, but he stated that he “must have had it in the service because he had symptoms of headache and vomiting, which he thought was the flu.” The VA examiner diagnosed him with hypertension, and the date of diagnosis was noted to be 1992 (based on the Veteran’s report). In an accompanying medical opinion in August 2016, the VA examiner opined that the Veteran’s hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. For rationale, the VA examiner noted that the Veteran’s blood pressure at his March 1992 service separation examination was normal and that his blood pressure reading of 140/90 in June 1992 (when he was assessed with borderline hypertension) was “the upper limit of normal.” The VA examiner concluded: “I don’t see any evidence of sustained elevated blood pressure in the service to connect with his current HTN [hypertension].” The VA examiner went on to opine that the reported in-service symptoms of “headache with vomiting, are not typical HTN symptoms (headaches can be, but not with vomiting).” The Board notes that the VA examiner did not address the multiple occasions documented in service and in the year following service when the Veteran complained of headaches without vomiting, as outlined in detail above. On remand, after all outstanding pertinent treatment reports have been associated with the record (to include those pertaining to a March 2016 referral through the Veterans Choice Program for cardiopulmonary exercise testing at the University of California San Diego (UCSD), the Veteran’s heart transplant at UCSD in October 2016, and his cardiac rehabilitation at Tri-City Medical Center which was noted to be ongoing in September 2017), an addendum medical opinion should be obtained to address any relationship between the Veteran’s current hypertension and his history of in-service and post-service headaches. 2. Entitlement to a compensable rating for left eye pterygium. During the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes). See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018). Under the version of DC 6034 in effect prior to May 13, 2018, pterygium is to be evaluated based on visual impairment, disfigurement (under DC 7800), conjunctivitis (under DC 6018), etc., depending on the particular findings. Under the version of DC 6034 in effect as of May 13, 2018, pterygium is to be evaluated under the General Rating Formula for Diseases of the Eye, disfigurement (under DC 7800), conjunctivitis (under DC 6018), etc., depending on the particular findings, and combined in accordance with 38 C.F.R. § 4.25. At a September 2013 VA eye examination, it was noted that the Veteran did have conjunctivitis; however, no answer was provided with regard to type, activity, or side affected. It was also noted at the September 2013 VA eye examination that the Veteran’s left eye pterygium did cause scarring or disfigurement; however, no answer was provided with regard to scar attributes. It was further noted that he did not have diplopia, and the VA examiner opined that he did not have any visual acuity impairment or visual field impairment attributable to the left eye pterygium. At an August 2016 VA eye examination, it was again noted that the Veteran did have conjunctivitis; however, no answer was provided with regard to type, activity, or side affected. It was also noted at the August 2016 VA eye examination that the Veteran’s left eye pterygium did not cause scarring or disfigurement; however, no opinion was provided to address the scarring/disfigurement finding at the September 2013 VA eye examination. It was further noted that he did not have diplopia, and the VA examiner opined that he did not have any visual acuity impairment or visual field impairment attributable to the left eye pterygium. Thereafter, a September 2017 VA treatment record noted the Veteran’s report that his eyes “itch a lot” and that “I see double when I am watching T.V. [I]f I shake my eyes a little it goes away but then it comes right back.” On remand, after all outstanding pertinent treatment reports have been associated with the record (to include any private treatment for his eyes, as VA treatment records as recently as April 2017 have documented that his active non-VA prescription medications include eyedrops), a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected left eye pterygium, as there is an indication that the current record does not adequately reflect the severity of his condition. The examiner should consider all applicable versions of the pertinent eye rating criteria during the appeal period. The examiner should also provide an opinion as to whether the Veteran’s left eye pterygium has been manifested by conjunctivitis (noted at the September 2013 and August 2016 VA eye examinations), scarring/disfigurement (noted at the September 2013 VA eye examination), and/or diplopia (indicated in the September 2017 VA treatment record) at any time during the appeal period; and if so, then the severity of each associated symptom should be described in accordance with the pertinent rating criteria. 3. Entitlement to a compensable rating (prior to December 7, 2011) and a rating in excess of 10 percent (from December 7, 2011) for left third finger scar from ganglion cyst excision. During the course of the current appeal, a March 2013 rating decision granted an increased rating of 10 percent for the Veteran’s left third finger scar from ganglion cyst excision, effective December 7, 2011 (i.e., the date of a VA scars examination). As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). At the Veteran’s April 2015 Board hearing, the undersigned Veterans Law Judge did not take testimony on the issue of an increased rating for left third finger scar from ganglion cyst excision, because this issue had not yet been certified to the Board at that time. Thereafter, in a May 2018 written statement, the Veteran’s attorney notified the Board that the Veteran no longer wished to have a Board hearing regarding this issue. The Veteran’s most recent VA scars examination was conducted in December 2014, nearly four years ago. Thereafter, VA treatment records in August 2016 and September 2016 document that he was approved for private treatment through the Veterans Choice Program for occupational therapy for his left ring [third] finger. The records of such private treatment are not currently associated with the record and may be pertinent to the increased rating claim on appeal for his left third finger scar disability. On remand, after all outstanding pertinent treatment reports have been associated with the record, a new VA scars examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected left third finger scar from ganglion cyst excision. The examiner should consider all pertinent scars rating criteria during the appeal period. 4. Entitlement to a TDIU rating. The above decision awarded service connection for a low back disability (diagnosed as lumbar spine osteoarthritis). This award, including the rating assigned by the RO in implementing the above decision, may affect whether the Veteran meets the schedular criteria for a TDIU rating. Additionally, because a decision on all of the other issues being remanded in this case could significantly impact a decision on the issue of entitlement to a TDIU rating, the issues are inextricably intertwined. For these reasons, a remand of the TDIU rating claim is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities during the appeal period, including all records of his treatment through the Veterans Choice Program (as noted above) as well as all pertinent records from UCSD and Tri-City Medical Center. Make requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. 3. After all requested records have been associated with the record, obtain an addendum opinion from an appropriate clinician as to the following question after review of the electronic claims file: Is it at least as likely as not that hypertension developed during his service or within one year of service discharge, or is otherwise related to any incident of his service (with specific consideration given to the pertinent STRs noting headaches, his post-service treatment for elevated blood pressure and headaches, and his reports of continuity of symptomatology since service)? A complete rationale for all opinions must be provided. 4. After all requested records have been associated with the record, schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected left eye pterygium and his service-connected left third finger scar from ganglion cyst excision. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed and the results reported. All pertinent symptomatology and findings must be reported in detail. The eye examiner should give consideration to all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and since May 13, 2018). The eye examiner should also provide an opinion as to whether the Veteran’s left eye pterygium has been manifested by conjunctivitis (noted at the September 2013 and August 2016 VA eye examinations), scarring/disfigurement (noted at the September 2013 VA eye examination), and/or diplopia (indicated in the September 2017 VA treatment record) at any time during the appeal period; and if so, then the severity of each associated symptom should be described in accordance with the pertinent rating criteria. 5. If any benefit sought on appeal remains denied, in whole or in part, a supplemental SOC (SSOC) must be provided to the Veteran and his attorney. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel