Citation Nr: 21022271 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-25 084A DATE: April 15, 2021 ORDER A 10 percent rating for urethral stricture from June 1, 2016, to January 24, 2017 is granted. A 10 percent rating for right heel disorder prior to August 1, 2013 is granted. A 20 percent rating for a lumbar spine disorder from February 6, 2020 is granted. A rating higher than 10 percent for right great toe disorder is denied. REMANDED A compensable rating for the period prior to April 28, 2014, for urethral strictures is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. For the period from June 1, 2016, to January 24, 2017, the Veteran’s urethral stricture more closely approximates occasional attacks of colic, not infected, and not requiring catheter drainage. 2. Prior to August 1, 2013, the Veteran’s right heel disability more closely approximates a moderate disability; a moderately severe or severe disability was not shown. 3. As of February 6, 2020, the Veteran’s lumbar spine disability more closely approximates limitation of flexion to 60 degrees. 4. Throughout the course of the appeal, the Veteran’s right great toe more closely approximates mild incomplete paralysis; moderate of severe incomplete paralysis was not shown. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent for urethral strictures from June 1, 2016, to January 24, 2017, are met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R.§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.115a, 4.115b, Diagnostic Codes (DCs) 7509, 7511, 7518. 2. The criteria for 10 percent rating for right heel disability prior to August 1, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5284. 3. The criteria for a 20 percent rating for lumbar spine disability from February 6, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 4. The criteria for a rating higher than 10 percent for right great toe disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to July 2012. These matters have a procedural history which includes prior Board remands, a Board Decision in September 2018, and an April 2020 Memorandum Decision of the Court of Appeals for Veterans Claims (Court) which vacated portions of the September 2018 Decision regarding denial of higher ratings for the Veteran’s urethral stricture. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that pertaining to the Veteran’s right heel and lumbar spine, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. However, the rating criteria pertaining to the Veteran’s heel and spine disabilities were not revised. Urethral Stricture from June 1, 2016, to January 24, 2017 The Veteran’s urethral stricture disability has been rated under the provisions of 38C.F.R.§§ 4.115a, 4.115b, Diagnostic Codes (DCs) 7511 and 7518. DC 7511 calls for evaluation of stricture of the ureter to be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: 1) diet therapy, 2) drug therapy, and 3) invasive or non-invasive procedures more than two times/year. The criteria for hydronephrosis are found at DC 7509 and assign a 10 percent rating for only an occasional attack of colic, not infected and not requiring catheter drainage; a 20 percent rating for frequent attacks of colic, requiring catheter drainage; a 30 percent rating for frequent attacks of colic with infection (pyonephrosis), kidney function impaired; and, severe hydronephrosis is rated as renal dysfunction (found at 38C.F.R.§4.115a). DC 7518 calls for stricture of the urethra to berated as a voiding dysfunction (urine leakage, frequency, or obstructed voiding). For urine leakage, a 20 percent evaluation is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent material which must be changed less than 2 times per day. A 40 percent rating is assigned where the wearing of absorbent materials must be changed 2 to 4 times per day. The maximum rating of 60 percent is warranted when there is urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Increased urinary frequency is rated as follows: a 10 percent rating is assigned for daytime voiding interval between two and three hours, or awakening to void two times per night; a 20 percent rating is assigned for daytime voiding interval between one and two hours, or awakening to void three to four times per night; and, a 40 percent rating is assigned for daytime voiding interval less than one hour, or awakening to void five or more times per night. For obstructed voiding, a noncompensable rating is assigned for obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. A 10 percent rating is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1) postvoid residuals greater than 150 cc; 2) uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); 3) recurrent urinary tract infections secondary to obstruction; or, 4) stricture disease requiring periodic dilatation every two to three months. A 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. In the April 2020 Memorandum Decision, the Court direct the Board to address the Veteran’s June 2016 VA examination in which he reported no further voiding issues or other symptoms post-surgery but did report that he had residual pain after his March 2016 surgery. The Board finds, that resolving all reasonable doubt in favor of the Veteran, his report of residual pain post-surgery is more closely approximated to occasional attacks of colic not infected and not requiring catheter drainage. The Veteran did not report, and medical records of evidence do not show that during this time period the Veteran had catheterization or infection associated with his urethral stricture. His symptom report in the July 2016 VA examination identified residual minimal pain as his only symptom. The Board finds this approximates occasional colic, which warrants a 10 percent rating from June 1, 2016, to January 24, 2017, under DC 7509. There are no treatment records that demonstrate any complaints or symptoms related to his urethral stricture disability during this time. As the Veteran did not endorse and the examination did not find any current voiding dysfunction or symptomology, DC 7518 is inapplicable to the Veteran’s urethral stricture during this time period. Furthermore, there is no evidence that the Veteran’s reports of mild residual pain more closely approximated frequent attacks of colic, requiring catheter drainage, which is necessary for a rating higher than 10 percent. As such, the Board finds that a 10 percent rating, but no higher, from June 1, 2016, to January 24, 2017, is warranted. Right Heel The Veteran’s right heel disability is rated under DCs 5015 and 5284 since his August 2012 grant of service connection. Prior to August 1, 2013, the Veteran’s heel was assigned a noncompensable (0%) rating under DC 5015; as of August 1, 2013, the Veteran was assigned a 10 percent rating under DC 5284. DC 5015 addresses benign neoplasms of the bone and directs that such a disorder be evaluated under diagnostic codes 5013 through 5024 as degenerative arthritis, based on limitation of motion of the affected parts. Under DC 5284, other foot injuries are rated 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. Diagnostic Code 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code, such as in this case. Words such as "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 as contemplated by the requirements of the law." 38 C.F.R. § 4.6. The medical records of evidence for the period prior to August 1, 2013, show that the Veteran reported dull heel pain which was a 5 out of 10 every day with normal activity. See March 2012 VA examination. The Veteran’s heel was tender to palpitation. The Veteran’s VA records show that he reported heel pain and his heel had begun to bother him in November 2012 and a report of foot pain in April 2013. As such, the Board finds that the Veteran’s right heel disability more closely approximated a moderate disability under DC 5284, which provides for a 10 percent rating. However, at no time during the period on appeal does the Board find that the evidence of record supports a finding higher than 10 percent under DC 5284. There are no records which indicate the Veteran’s heel pain interfered with his mobility, activities of daily living, or other findings which would more closely approximate a moderately severe or severe disability. Private medical records from 2014 and 2015 show that the Veteran denied joint pain or any difficulties walking. See October 2014 and February 2015 private medical records. The Veteran’s July 2016 VA examination noted the Veteran’s complaints of pain and occasional limp due to pain as well as reported flare-ups depending on how much the Veteran was walking. But, the examination did not note functional limitations or other restrictions which would indicate a more severe disability. The Veteran’s February 2020 VA examination noted the Veteran’s complaints of sharp pain intermittently which was aggravated by frequent walking and going up and down ladders/stairs. The Veteran complained of limited motion in the ankle with plantar flexion and popping in the ankle. His plantar flexion was limited to 35 degrees but was not found to cause functional loss. His pain did not cause functional loss and the examiner noted it to be moderate. No loss of motion was anticipated during a flare-up. Thus, the Board does not find that the Veteran’s right heel disability more closely approximated a moderately severe or severe disability. The Veteran did note pain and discomfort, but there were no indications that he was prevented or hindered in activity due to his pain, including his pain on flare-ups. As such, a rating higher than 10 percent is not supported by the record. The Board has considered the Veteran’s lay statements. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for such, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. Lumbar Spine The Veteran’s lumbar spine disability was assigned a 10 percent rating as of his August 2012 grant of service connection, pursuant to DC 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a. Under this formula, a 10 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when there is 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 for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent rating is assigned if there is unfavorable ankylosis of the entire spine (when considering all segments - cervical, thoracic, and lumbar (thoracolumbar)). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note (2). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See 38 C.F.R. § 4.45. See also DeLuca v. Brown, 8 Vet. App. 202. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited pursuant to the schedular criteria. In other words, a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered and is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range-of-motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. After review of the record, the Board does not find that the evidence supports a rating higher than 10 percent for the Veteran’s lumbar spine disability prior to the Veteran’s February 6, 2020, VA examination. Prior to the 2020 examination, the Veteran’s flexion was documented at 90 degrees. See March 2012 VA examination. In the March 2012 examination, the Veteran also had report of pain 15 days out of the month at 8 out of 10, with no abnormal gait, activities of daily living intact, and no functional impact noted. VA medical records show that the Veteran reported back pain in 2013, see April and August 2013 VA medical record, and increases in pain in 2015 and 2016, but no records showed the Veteran’s range of motion limited to 60 degrees or less or that he had an abnormal gait or spinal contour. Additionally, there are private medical records and VA treatment records which show the Veteran denied back pain during this period. See September 2014, October 2014, and February 2015 private medical records and March 2017 VA medical record. A July 2016 VA examination noted the Veteran had pain and flare-ups, but his range of motion was normal. There was no indication throughout the course of the Veteran’s medical treatment, including his VA examinations, that his lumbar spine disability cased muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis. Thus, there are no records of evidence prior to the Veteran’s February 2020 examination, which indicate that his lumbar spine disability had increased in severity to a degree which more closely approximated a limitation of flexion to 60 degrees or less or caused muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, which is mandated by the rating criteria for a rating higher than 10 percent. As such, a rating higher than 10 percent for the period prior to February 6, 2020, is denied. As of the February 6, 2020, VA examination, however, the Veteran’s lumbar spine disability more closely approximated a limitation of flexion to 60 degrees, which does warrant a 20 percent rating. Though the examination showed limitation of flexion to 65 degrees, the examination also noted the Veteran experienced daily pain and flare-ups which last for several hours. The Veteran’s flare-ups caused functional loss which limited his sitting, standing, and prolonged walking. Though the examiner was unable to ascertain additional range of motion loss during a flare-up or repetitive use, the Board resolves any reasonable doubt in favor of the Veteran and finds that his lumbar spine flare-ups more likely than not caused an additional 5 degree limitation necessary to support a 20 percent raring. The Board did not find any evidence of record which supported a rating higher than 20 percent at any time during the period on appeal, as there were no records which showed the Veteran’s lumbar spine more closely approximated a limitation of flexion to 30 degrees or less, or that that the Veteran had any degree of ankylosis. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. In sum, a rating higher than 10 percent prior to February 6, 2020, is denied; a 20 percent rating as of February 6, 2020, is granted for the Veteran’s lumbar spine disability. Right Great Toe The Veteran’s right toe disability is assigned a 10 percent rating as of his August 2012 grant of service connection pursuant to DCs 5003-8521. DC 5003 addresses degenerative arthritis and DC 8521 addresses paralysis of the external popliteal (common peroneal) nerve. Under DC 8521, mild incomplete paralysis of the external popliteal (common peroneal) nerve is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, food drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost, adduction weakened, anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. 38 C.F.R. § 4.124a, DC 8521. The evidence of record shows the Veteran has consistently reported numbness of his right great toe. The March 2012 VA medical examination showed the Veteran with a normal examination of the right great toe, 0/10 pain, and just numbness 2 to 3 times per week with prolonged standing or walking. In April 2015, VA medical records showed the Veteran had full range of motion of his right great toe and the toe was nontender, but that the toe was numb, and pain radiated into his foot. A July 2016 VA examination showed the Veteran reported toe flare-ups with numbness once or twice a month. The Veteran’s February 2020 VA examination showed that the Veteran reported his right great toe symptomology was numbness. Upon examination the examiner noted moderate numbness of the right great toe. The examiner found that the Veteran’s right great toe injury was a possible injury to right great toe medial plantar nerve with mild incomplete paralysis. No functional impact or limitation due to the right great toe disability was found or noted. Though the February 2020 examiner noted moderate numbness, the examiner did not find that the totality of the Veteran’s right great toe symptoms caused moderate incomplete paralysis. Thus, the evidence of record does not support a rating higher than 10 percent for the Veteran right great toe disability. Throughout the course of the appeal the Veteran’s right great toe symptomology has predominantly been numbness. There is no evidence which indicated the Veteran’s right great toe caused functional loss or impairment which could be characterized as moderate or severe and there is no evidence that the Veteran’s toe symptomology closely approximated moderate incomplete paralysis or more. As such, a rating higher than 10 percent for a right great toe disability is denied. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Increased Rating for Urethral Stricture prior to April 28, 2014 The Court’s April 2020 Memorandum Decision vacated the Board’s denial of a compensable rating for the Veteran’s urethral stricture prior to April 28, 2014, on the basis of the Veteran’s statements in an April 2014 private medical records that his increase in symptomology began a year prior. Review of the private medical records indicated that the Veteran was referred to the private provider by a VA medical facility in Fayetteville, Arkansas. Review of the records from that provider do no show treatment for the Veteran within close proximity to his referral date or an actual referral to the private provider. Indeed, medical records from VA Fayetteville in April and August 2013 indicate that while the Veteran had complaint and symptoms associated with other ailments, he did not report any urethral stricture complaints and symptomology. As the record does not contain the stated referral or other medical records in close proximity to his April 2014 private medical care, the Board finds it possible that complete medical records from the VA facility in Fayetteville are not of record. As the Board cannot adequately assess when the Veteran first began experiencing symptoms associated with his urethral stricture, remand is necessary to ensure a complete copy of his VA medical records from 2013 to 2014 are a part of the record. Service Connection for Hypertension The Board regrets additional delay. However, the Board’s September 2018 remand provided specific instruction as to evidence to be considered in assessing the etiology of the Veteran’s hypertension. The VA examination conducted in March 2020 did not address the referenced evidence. As such, the Board finds the examination inadequate for adjudication purposes and that a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain all the records of treatment or examination from the VA medical facility located in Fayetteville, Arkansas where the Veteran’s sought treatment for the years 2013-2014. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain the records, they are not able to be secured, or no records of any such treatment are available, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Obtain a VA opinion from a qualified physician that addresses the nature and etiology of the Veteran’s hypertension. The entire claims file must be made available to the physician for review, and the provided report should include a discussion of the Veteran’s documented medical history and assertions. [If deemed necessary by the examiner, schedule the Veteran for an examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.] The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was incurred in, or is due to, military service. In providing this opinion, the examiner must address the Veteran’s elevated blood pressure readings during his active duty service, his in-service diagnosis, as well as those elevated and hypertensive readings in the year following his separation from service. See February 2012 service treatment records (STRs), pg. 18, 37, 49, 52, 60, 72, 78, 81, 89, 92, 96, 100, 103, 105, 107, 110, 115, 121, 141; February 2012 STRs, pp. 22, 24, 26, 29, 33, 80, 88, 91, 93, 97; July 2016 VA Treatment Records, pg. 26; February 2012 STRs, pg. 33. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.