Citation Nr: 21040500 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 13-21 717 DATE: July 5, 2021 ORDER Service connection for a bilateral foot disorder is denied. For the rating period prior to August 2, 2019, a 10 percent rating, but no higher, for recurrent episodes of urethritis is granted. For the rating period beginning August 2, 2019, a rating in excess of 10 percent for recurrent episodes of urethritis is denied. FINDINGS OF FACT 1. The Veteran's bilateral foot disorders, diagnosed as hammertoes, left hallux valgus, left foot degenerative arthritis, bilateral bunions, were first demonstrated years after service and are not etiologically related to any incident in service. 2. Throughout the rating period on appeal, the Veteran's urethritis has resulted in episodes of decreased force of stream with recurrent urinary tract infections secondary to obstruction requiring intermittent intensive management. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral foot disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309. 2. For the rating period prior to August 2, 2019, the criteria for a 10 percent rating, but no higher, for recurrent episodes of urethritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.115a, 4.115b, Diagnostic Code 7512. 3. For the rating period beginning August 2, 2019, the criteria for a rating in excess of 10 percent for recurrent episodes of urethritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.20, 4.115a, 4.115b, Diagnostic Code 7512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from the May 2010 and November 2011 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran and his spouse testified regarding these matters at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The issues on appeal were previously remanded by the Board in April 2018 and August 2020. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bilateral Foot Disorder The Veteran maintains that he had bilateral foot problems during service. He has indicated that his foot problems were caused by continual stress from walking and carrying heavy items. Initially, the Board finds that the Veteran has a bilateral foot disability, diagnosed as hammertoes, left hallux valgus, left foot degenerative arthritis, bilateral bunions. See June 2015 VA examination report. Next, a review of the Veteran's service treatment records show that he complained of foot pain on one occasion. Specifically, in January 1970, the Veteran complained of tenderness to the left medial malleolus and the Achilles tendon after jumping and landing flat on his feet. The impression noted was "sprained ankle" and the Veteran was given an ace wrap. No further treatment records show any complaints, diagnoses, or treatment for a foot condition. During Reports of Medical Examinations, conducted in April 1969 and at service separation in February 1970, the Veteran was not found to have any foot problems. The Veteran also denied having any "foot trouble" in April 1969 and February 1970 Reports of Medical History. The Board finds that the Veteran's service treatment records, including the separation examination report, are probative as to his subjective reports and their resulting objective findings, and was generated with a view towards ascertaining the Veteran's then-state of physical fitness and is akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Post-service VA treatment records show that the Veteran first had foot surgery in 2010 (bunionectomy), approximately 40 years following service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). The Veteran has indicated that he has experienced foot pain since service, which progressively worsened over time, and he is competent to report such. However, the remaining evidence of record does not support this contention. In this regard, the Veteran has sought service connection for various other disorders since service separation and, at no time during these prior claims, did the Veteran mention any symptoms relating to his foot disorders. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which she is experiencing symptoms that she believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting rather than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a foot disorder, when viewed in the context of his actions regarding his other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a foot disorder in service. The Board finds that this evidence weighs against a finding of continuous foot symptoms since service separation. The Veteran was afforded a VA foot examination in June 2015. At that time, the examiner diagnosed the Veteran with bilateral hammertoes, left hallux valgus, left foot degenerative arthritis, bilateral bunions. The examiner rendered a negative nexus opinion and stated that service records were silent for foot problems except for one note in January 1970. However, a medical note in February 1970 indicated that the Veteran's feet were normal. Moreover, the examiner stated that the Veteran's major foot issues occurred in 2010 (more than 40 years after service). The examiner further indicated that the Veteran's bilateral hammertoes were asymptotic and had existed since childhood. The Board finds the June 2015 VA medical opinion to be of reduced probative value. In this regard, although the examiner indicated that the Veteran's hammertoes had been present since childhood, no supporting information was provided. In this regard, service records do not include an entrance examination report; however, an April 1969 report of medical examination (conducted one year following service entrance) showed that the Veteran's feet were normal, and hammertoes were not noted. Further, the examiner specifically indicated that the February 1970 service treatment note found that the Veteran's feet were normal. In other words, had the Veteran's hammertoes existed since childhood, it is likely that this condition would have been noted on service entrance, at the annual examination in April 1969, or during the February 1970 service treatment note which provided treatment for the Veteran's foot injury. Pursuant to the Board's remand, another medical opinion was obtained in September 2020. At that time, the examiner opined that the Veteran's bilateral foot disorder was not related to service. In support of this opinion, the examiner stated that the April 1969 and February 1970 Reports of Medical History documented normal foot examinations and did not reveal a history or physical examination of ongoing or acute treatment for a bilateral foot disorder. The examiner also indicated that, a review of the available medical records, did not show continuous medical treatment for a foot disorder since service. The Board finds that the September 2020 VA medical opinion discussed above is probative as to whether the Veteran's currently diagnosed bilateral foot disorder is related to service. The examiner reviewed and discussed service records, post-service medical evidence, and the Veteran's history. Moreover, the medical opinion was supported by a well-reasoned rationale, which was consistent with the medical evidence of record. The Board has also considered the Veteran's statements regarding his belief that his foot disorder is related to service. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the etiology of his medically complex foot disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). The Veteran's foot disorders are medically complex process because of their multiple possible etiologies and require specialized testing to diagnose (e. g., x-rays and/or MRI). Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 4.71a, Diagnostic Code 5003 (arthritis is shown by x-rays). For these reasons, and based on the evidence of record, the Board finds that the weight of the competent, credible, and probative evidence is against a finding of relationship between the Veteran's bilateral foot disorders and service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Urethritis RatingLaws and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's chronic urethritis is rated under Code 7512, (for chronic cystitis), which provides for rating as voiding dysfunction. The Board will (as provided in 38 C.F.R. § 4.115 (b) consider alternately rating the disability as urinary frequency, obstructed voiding, and urinary tract infection. For voiding dysfunction, a 20 percent rating is warranted when wearing of absorbent materials which must be changed less than 2 times per day is required. A 40 percent rating is warranted for when absorbent materials must be changed 2 to 4 times per day. A 60 percent rating is warranted when use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is required. For urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or awakening three to four times per night. A 40 percent rating is warranted for daytime voiding interval less than one hour, or awakening to void five or more times per night. For obstructed voiding, a 0 percent rating is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating is warranted for marked obstructive symptomatology such as hesitancy, slow or weak stream, or decreased force of stream (with one or a combination of: post-void residuals greater than 150 cc; markedly reduced peak flow rate on uroflowmetry; recurrent urinary tract infection secondary to obstruction; or stricture requiring periodic dilatation. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Pursuant to an August 2019 VA urinary tract conditions examination report, the Veteran was noted to have urethritis since 2012. The Veteran reported decreased urine flow and infections. The examiner then indicated that the Veteran had obstructive voiding with markedly decreased force of stream resulting in recurrent urinary infections secondary to obstruction. The Veteran was not found to have urine leakage or increased urinary frequency. Additionally, the Veteran's urinary tract infections were noted to require intermittent intensive management (i. e., antibiotics). In a medical opinion obtained in November 2020, it was also noted that the Veteran had recurrent urinary tract infections as evidenced by his complaints and treatment in August 2010, August 2011, and December 2018. The examiner reviewed the claims file and opined that the Veteran's diagnosed benign prostate hypertrophy (BPH) was a medically separate and distinct condition from the service-connected urethritis, although symptoms of both conditions could overlap. It was further opined that the Veteran's BPH was not aggravated by his service-connected urethritis disability. In this regard, the medical evidence showed that the Veteran's urethritis symptoms were episodic and generally responded well to antibiotics. The Veteran's reported baseline for BPH symptoms (nocturia, retention, and dribbling) over the past 10 years did not change dramatically or beyond the expected gradual progression with aging after the discrete episodes of urethritis. Upon review of the evidence of record, the Board finds that a 10 percent rating for recurrent urethritis is warranted for the rating period prior to August 2, 2019. The Veteran has had documented urinary tract infections (treatment with antibiotics) throughout the entire rating period on appeal. The August 2019 VA examiner specifically indicated that the Veteran had urinary tract infections that required intermittent intensive management (i. e., antibiotics). This warrants a 10 percent rating under 38 C.F.R. § 4.115 (b) for urinary tract infections. The Board next finds that a rating in excess of 10 percent is not warranted for the entire rating period on appeal. The Veteran has not been found to have urine leakage or increased urinary frequency as due to his urethritis disability. Further, his urinary tract infections have not resulted in renal dysfunction and have not required drainage, hospitalization, or continuous intensive management, as required for higher rating under the criteria for urinary tract infections. The Board acknowledges that the Veteran has complained of nocturia; however, these symptoms have not been related to his service-connected urethritis disability. Notably, the Veteran is not service connected for BPH at this time. For these reasons, the Board finds that a rating in excess of 10 percent for recurrent episodes of urethritis is not warranted for the entire rating period on appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.