Citation Nr: 1749128	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-01 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for residuals of a left second toe injury.

2.  Entitlement to service connection for erectile dysfunction.  

3.  Entitlement to a compensable rating for a left great toe disorder. 


REPRESENTATION

Appellant represented by:	Jan Dils, Attorney at Law


ATTORNEY FOR THE BOARD

A. Cryan, Counsel



INTRODUCTION

The Veteran served on active duty from June 1976 to March 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In October 2015, the Veteran was scheduled for a videoconference hearing before the Board.  In October 2015, the Veteran, through his representative, offered argument in lieu of a hearing and withdrew his personal hearing request.  In a December 2016 statement, the Veteran's attorney stated that the Veteran had a Board hearing in October 2015.  However, this was in error.  In fact, the Veteran has neither offered good cause for the failure to report for the earlier Board hearing nor has he sought another hearing.  As such, the request for a hearing is deemed withdrawn.  

In March 2017, the Board remanded the Veteran's claims for additional development.  At that time, the Board erroneously assumed jurisdiction of a claim for entitlement to a total rating based on individual unemployability (TDIU) prior to August 11, 2014.  Of note, entitlement to a TDIU was granted in a June 2015 rating decision and an effective date of August 11, 2014, was assigned.  The Veteran has not expressed disagreement with the effective date assigned.  As such, Board does not have jurisdiction of a claim for entitlement to a TDIU prior to August 11, 2014, and that issue is not currently on appeal.  

Subsequent to a June 2017 supplemental statement of the case, additional VA and private treatment reports were associated with the claims file, some with a waiver of consideration by the Agency of Original Jurisdiction (AOJ).  Although a waiver was not issued with regard to all of the records, the records are unrelated to or are cumulative of other records already considered by the AOJ.  As such, the Veteran is not prejudiced by the Board's adjudication of the issues on appeal.  


FINDINGS OF FACT

1.  The Veteran's claimed residuals of a left second toe injury are not attributable to his active duty service.

2.  The Veteran's erectile dysfunction is not attributable to his active duty service or to a service-connected disability.

3.  The Veteran's residuals of a left great toe disorder are manifested by severe hallux valgus.  


CONCLUSIONS OF LAW

1.  Criteria for service connection for residuals of a left second toe injury have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).

2.  Criteria for service connection for erectile dysfunction have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016).

3.  Criteria for a rating of 10 percent for a left great toe disorder are met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5280 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided.  Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.   See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claims at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records, VA treatment records, and private treatment records have been obtained. 

With regard to the claims being decided herein, the Board last remanded the claims for review of additional evidence by the Agency of Original Jurisdiction (AOJ).  This was accomplished in a June 2017 supplemental statement of the case.  Neither the Veteran nor his representative asserted that any records remained outstanding that were needed to give fair consideration to the Veteran's claims.  As such, because the Board's order was fully complied with, there is no prejudice for the Board to proceed.  See Stegall v. West, 11 Vet. App. 268 (1998). 

The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file) and a medical specialist issued a medical opinion with regard to the erectile dysfunction claim, which the Board finds to be adequate for rating purposes.  Additionally, the VA examiners had a full and accurate knowledge of the Veteran's disabilities and contentions, and grounded the findings on objective testing and the evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.


Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304. 

The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition.  That evidence must be medical unless it relates to a condition as to which lay observation is competent.  38 C.F.R. § 3.303(b).

Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

Residuals - Left Second Toe Injury

Historically, the Veteran submitted a claim of entitlement to residuals of a left second toe injury in January 2010.  The claim was denied in an October 2010 rating decision.  The Veteran disagreed with the denial of his claim and this appeal ensued.  

A review of the Veteran's service treatment reports reflects that the Veteran sustained an injury to his left great and left second toe in November 1981.  A March 1983 clinical evaluation of the feet was normal.  

At a VA examination dated in August 2010, the examiner reviewed the Veteran's relevant medical history and noted the Veteran's injury to his first and second left toes during service.  Following a physical examination of the left foot and toes including X-rays of the left foot, the examiner indicated that the Veteran's left second toe was normal.  

A review of the various private and VA outpatient treatment reports of records does not reveal treatment for the left second toe.  

In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for residuals of a left second toe injury

The Board acknowledges that the Veteran is competent to report that the symptoms he attributes to his left second toe.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted.  Layno v. Brown, 6 Vet. App. 465 (1994).  It is within the Veteran's realm of personal knowledge whether he experienced pain. 

However, in all claims for service connection, the threshold requirement is evidence of a currently diagnosed disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Neither the VA nor private treatment reports of record reflect a diagnosis of any disability of the left second toe.  Additionally, when examined by VA, the left toe examination, including diagnostic testing, was normal.  Consequently, the objective findings do not support a diagnosis of any left second toe disability.  Symptoms alone, such as pain, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability.  Without a pathology to which such symptoms can be attributed, there is no basis upon which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). 

Accordingly, the claim for service connection for residuals of a left second toe disability is denied.

Erectile Dysfunction

In addition to the regulations cited above, service connection may also be granted on a secondary basis when a disability which is proximately due to, or the result of, a service-connected disorder.  38 C.F.R. § 3.310(a).  Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition.

Historically, a claim of entitlement to service connection for erectile dysfunction was denied in a June 2013 rating decision.  The Veteran disagreed with the denial of his claim and this appeal ensued.  

A review of the Veteran's service treatment reports does not reflect any complaints, findings, or treatment for erectile dysfunction.  

A review of various post-service private and VA outpatient treatment reports reflects a diagnosis of erectile dysfunction.  

In February 2013, a VA clinician reviewed the claims file and the relevant evidence of record and opined that it is less likely than not that the Veteran's erectile dysfunction is proximately due to or the result of the service-connected lumbar spine disability.  The examiner's rationale was that a 2011 neurological examination of the Veteran's lower extremities was normal.  Specifically, deep tendon reflexes and sensory examination were normal.

In December 2015, a medical expert opinion was obtained from a specialist.  A Board Certified Internal Medicine and Geriatrics specialist opined that the Veteran's erectile dysfunction is not caused or aggravated by the Veteran's service-connected disabilities or medication used to treat his service-connected disabilities.  The examiner reviewed the Veteran's claims file and relevant medical records and cited to Up To Date to support his rationale.  The specialist noted that the neither the Veteran's cervical or lumbar spine disabilities, including any surgeries or radiculopathy, inherently cause erectile dysfunction since the nerves affecting erectile function are not involved in those conditions or surgery therefor.  The examiner noted that a magnetic resonance imaging (MRI) of the cervical and lumbar spine did not show pathology which would inherently cause erectile dysfunction.  The specialist indicated that while pain from the cervical and lumbar spine disabilities as well as depression and/or the use of alcohol or opioids used to treat pain may inhibit sexual performance but they do not aggravate erectile dysfunction.  The specialist stated that it is far more likely that erectile dysfunction was both caused and/or aggravated by the Veteran's nonservice-connected diabetes or medications used to treat his nonservice-connected prostate condition and nonservice-connected hypertension.  The specialist noted that using medications to treat depression, anxiety, and pain in the cervical and lumbar spine are more likely to improve sexual performance and could even somewhat ameliorate the effects of the Veteran's erectile dysfunction.        

In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for erectile dysfunction.

The Board will first address direct service connection.  Of note, the Veteran does not contend that his erectile dysfunction resulted directly from service.  The Board finds that the competent evidence of record does not show a relationship between the Veteran's erectile dysfunction and his period of active service.  The Veteran has not submitted any competent evidence which provides a basis for the conclusion that erectile dysfunction is related to his period of service.  As such, service connection is not warranted on a direct basis.

The Board will next address secondary service connection.  The Board finds that the competent evidence of record does not show a relationship between the Veteran's erectile dysfunction and any service-connected disability.  The only medical opinions of record indicate that it is less likely than not that the Veteran's erectile dysfunction was caused or aggravated by his service-connected disabilities or any medication used to treat those disabilities.  The clinicians of record reviewed the claims file and relevant medical evidence, considered the Veteran's contentions, and provided a rationale to support the opinions.  There is no competent evidence to contradict these opinions.  The Veteran has not submitted any competent evidence which provides a basis for the conclusion that erectile dysfunction is caused or aggravated by any service-connected disability or medications used to treat those disabilities. 

Although the Veteran contends that he has erectile dysfunction related to service-connected disabilities or medications used to treat those disabilities, the Veteran has submitted no competent medical evidence or opinions to corroborate those contentions.  38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). 

The Veteran's opinion is not competent to provide the requisite etiology of erectile dysfunction because such a determination requires medical expertise.  As a lay person, the Veteran is considered competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of erectile dysfunction.  See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with erectile dysfunction.  As such, the Veteran's opinion on its own is insufficient to provide the requisite nexus between his erectile dysfunction and any service-connected disability. 

Therefore, the lay statements regarding the Veteran's erectile dysfunction being related to a service-connected disability or any medications used to treat such disabilities are not competent as the Veteran is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for erectile dysfunction, and the claim is denied.

Increased Rating - Left Great Toe

The Veteran's submitted a claim for an increased rating for his service-connected residuals of a left great toe injury in January 2010.  In an October 2010 rating decision, a noncompensable rating was continued.  The Veteran disagreed with the denial of his claim and this appeal ensued.  

At a January 2010 VA examination, the Veteran denied surgery on his left foot.  He reported pain and swelling while walking and redness of the left great toe.  The examiner indicated that there was no evidence of swelling, instability, weakness, or abnormal weight-bearing of the left or right foot and no evidence of painful motion or tenderness of the right foot.  The Veteran endorsed painful motion and tenderness of the left foot.  X-rays of the left foot revealed moderate to advanced hallux valgus deformity with degenerative changes of the lateral joint and some new bone formation of the medial distal first metatarsal.  The examiner assessed the Veteran with left great toe degenerative joint disease with moderate to advanced hallux valgus deformity.  

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Veterans Appeals (Court) held that 38 C.F.R. § 4.59 pertains to painful motion of the musculoskeletal system generally, and is not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements.  In other words, Section 4.59 does not condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that Diagnostic Code; rather, it conditions the award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic criteria.  See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (providing that Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements).

The Veteran's residuals of a left great toe disability are rated as noncompensably disabling pursuant to Diagnostic Codes 5284-5280.  See 38 C.F.R. § 4.71a.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2016).

Under Diagnostic Code 5280, unilateral hallux valgus is rated 10 percent if severe, if equivalent to amputation of the great toe, or if operated on with resection of the metatarsal head.  See 38 C.F.R. § 4.71a.

Under Code 5284, a 10 percent rating is warranted for other foot injuries that are moderate.  Other foot injuries that are moderately severe and severe are to be rated 20 percent and 30 percent, respectively.  A note to Code 5284 provides that a 40 percent rating will be assigned where there is an actual loss of use of the foot.  See 38 C.F.R. § 4.71a.

Having reviewed the relevant evidence of record and the applicable laws and regulations and affording the Veteran the benefit of the doubt, the Board concludes that the Veteran's residuals of a left great toe disability warrant a rating of 10 percent and no more for severe hallux valgus.  The Veteran's left foot disability is manifested by moderate to advanced hallux valgus, as noted on examination.  The criteria for the highest possible rating of 10 percent for the hallux valgus aspect of the Veteran's service-connected left great toe disability will be awarded throughout the appeal period.  

The Board does not find that a higher rating is warranted under Diagnostic Code 5284 for other foot injuries.  The Veteran's residuals of a left foot disability are manifested by hallux valgus which is listed as a specific diagnostic code.  As such, Diagnostic Code 5280 is the most appropriate diagnostic code to rate this disability.  Moreover, even considering the results of the January 2010 VA examination, the Board finds that the clinical findings noted on examination are tantamount to no more than a moderate foot injury which equates to a 10 percent rating pursuant to Diagnostic Code 5284.  

Therefore, while a higher 10 percent rating is warranted, the preponderance of the evidence is against a rating in excess of 10 percent.  

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 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to service connection for residuals of a left second toe injury is denied.

Entitlement to service connection for erectile dysfunction is denied.  

Entitlement to a 10 percent rating for a left great toe disorder is granted. 



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

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