Citation Nr: 0005822 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-05 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for residuals of a left ankle and foot injury, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable rating for a left hydrocele. 3. Entitlement to a compensable rating for an enlarged right epididymis. ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from December 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO) which continued a 10 percent disability rating for residuals of a left ankle and foot injury, and which continued noncompensable ratings for a left hydrocele and for an enlarged right epididymis. FINDINGS OF FACT 1. The record includes all evidence necessary for the equitable disposition of this appeal. 2. The veteran's service-connected residuals of a left ankle and foot injury are manifested by limitation of left ankle motion to 10 degrees of dorsiflexion and 30 degrees of plantar flexion with foot and ankle pain, some slight swelling, soreness, tenderness and edema. 3. The veteran's service-connected left hydrocele is asymptomatic. 4. The veteran's service-connected enlarged right epididymis is asymptomatic. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of a left ankle and foot injury have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (1999). 2. The criteria for a compensable evaluation for a left hydrocele have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.115b, Diagnostic Code 7525 (1999). 3. The criteria for a compensable evaluation for an enlarged right epididymis have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.115b, Diagnostic Code 7525 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to a higher evaluation for his service-connected residuals of a left ankle and foot injury and to compensable ratings for his service-connected left hydrocele and enlarged right epididymis because all of these disorders are more disabling than contemplated by their current ratings. A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claim for an increased rating based upon an alleged increase in the severity of his service-connected disability is well grounded. Once a claimant presents a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more nearly the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Evaluation of residuals of a left ankle and foot injury A disability of the musculoskeletal system is primarily a damage- or infection-caused inability of a body part to move with normal excursion, strength, speed, coordination and endurance. A ratings examination must fully describe anatomical damage and functional loss in each of these areas. A functional loss may result from absence of a bone, joint, muscle or associated structure, or to a deformity, adhesion, defective innervation or other pathology, or it may be due to pain, provided claimed pain is supported by evidence of pathology and visible behavior of the claimant while undertaking the motion. Weakness is as effective an indicator of disability as limitation of motion and a body part which becomes painful on use is seriously disabled. 38 C.F.R. §§ 4.40, 4.45. In addition to applying schedular criteria, VA may consider granting a higher rating when the veteran is rated under a code that contemplates limitation of motion and additional functional loss due to pain or weakness is demonstrated. DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The RO granted service connection for residuals of a left ankle and foot injury in May 1965 and assigned a noncompensable rating by analogy pursuant to Diagnostic Code (DC) 5299. In December 1995 the RO increased the rating to 10 percent pursuant to DC 5284. Under 38 C.F.R. § 4.71a, DC 5284, pertaining to foot injuries, loss of use of the foot warrants a 40 percent rating, severe disability warrants a 30 percent rating, moderately severe disability warrants a 20 percent rating and moderate disability warrants a 10 percent rating. The veteran underwent private hospitalization and treatment from November 1994 to March 1995 and VA examinations in September 1995. Private examination, evaluation and hospitalization records from this period do not address a left foot or ankle disorder. During a VA joints examination the veteran reported having sustained a left foot and ankle injury in service after having been run over by a truck. Examination of the left foot and ankle disclosed no swelling, deformity or laxity. Range of motion was limited to 25 degrees of plantar flexion and 5 degrees of dorsiflexion with pain, there were no distal pulses, slow capillary refill and decreased sensation upon light touch around the foot. X-rays disclosed arthritis and mild hallux valgus. The diagnosis included suspected post-traumatic degenerative arthritis of the left foot and ankle. The report of a contemporaneous aid and attendance/housebound examination notes some functional restriction resulting from the amputation of the veteran's right leg below the knee but no functional loss in the lower left extremity. VA treatment records from January 1996 to January 1997 include a single reference to residuals of a left foot and ankle injury. The veteran reported no ankle or foot discomfort. Findings included absence of left foot lesions or ulcers, slight left ankle edema, distal hair loss and thickened, mycotic toe nails. A VA physician who examined the veteran's feet in March 1997 noted his report of persistent ankle pain and soreness with occasional swelling, especially upon prolonged standing and walking. Examination disclosed left ankle tenderness, soreness and some pain upon motion but no instability. Range of motion was 10 degrees of dorsiflexion and 30 degrees of plantar flexion with slight swelling. The examiner also noted scars around the left ankle where the veteran had a vein graft for open heart surgery. VA treatment records disclosed a trace of lower left extremity pitting edema in May 1997, diminished left ankle pulses and the skin diseases onychomycosis and xerosis in June and September 1997, and absence of left foot or ankle pain or lesions in March 1998. During a November 1998 VA examination the veteran repeated prior complaints of left foot and ankle discomfort. Although he reported no specific flare-ups, the report notes that the veteran's left ankle and foot disability made daily activities more difficult. The examining physician found chronic left foot and ankle swelling, pain and tenderness and range of plantar flexion to 30 degrees but no additional deformity. The examiner also noted that the veteran found some pain relief by wearing orthotics in his left shoe. X- rays disclosed minimal degenerative arthritis and osteoporosis. In the Board's judgment, review of the totality of the medical evidence fails to demonstrate that the veteran's left foot and ankle disorder warrants an evaluation in excess of 10 percent. Medical evidence shows that the veteran's symptomatology includes limitation of left ankle motion to 10 degrees of dorsiflexion and 30 degrees of plantar flexion with foot and ankle pain, slight swelling, soreness, tenderness and edema. Normal range of motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The Board finds that the veteran presents no more than moderate limitation of motion under this regulation. Although a VA examiner found that the veteran's mobility was affected by his left foot and ankle disorder, there is no medical evidence of functional loss due to pain. Therefore, a higher evaluation for pain is not appropriate. See DeLuca v. Brown, 8 Vet. App. at 206-207. In light of the foregoing, the Board finds that the severity of the veteran's left ankle and foot disability is no more than moderate, consistent with a 10 percent rating under DC 5284. Analysis of the veteran's symptoms under other provisions including DCs pertaining to ankle or foot disorders cannot provide a higher evaluation for the veteran's disorder. For example, because the limitation of left ankle motion is moderate but not marked, a higher evaluation is not available under DC 5271. Furthermore, as the veteran is not shown to have left ankle ankylosis, malunion of the os calsis or astragalus, or astragalectomy, DCs 5270 to 5274 are not appropriate. Similarly, the veteran is not diagnosed with flatfoot, weak foot, claw foot, or malunion or nonunion of tarsal or metatarsal bones, so DCs 5276, 5277, 5278, and 5283 are not appropriate. Therefore, the Board finds that the evidence of record supports an evaluation of no more than 10 percent for a left ankle and foot disability. B. Evaluation of a left hydrocele and an enlarged right epididymis The RO granted service connection for a left hydrocele in May 1965 and assigned a noncompensable disability rating by analogy under DC 7599, later changed to DC 7525. The RO granted service connection for an enlarged right epididymis in December 1995 and also assigned a noncompensable disability rating by analogy under DC 7525. DCs for a left hydrocele and an enlarged right epididymis are not specifically listed in the rating schedule. Therefore, these disabilities must be evaluated by analogy. See 38 C.F.R. § 4.20, 4.27 (1999). When a disability is not listed in the diagnostic code, the VA may assign a rating pursuant to a code provision pertaining to a related disorder for which affected functions, anatomical localization and symptomatology are similar. Lendenmann v. Principi, 3 Vet. App. 345, 349- 350 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Evaluation of the veteran's left hydrocele and enlarged right epididymis under 38 U.S.C.A. § 4.115b, DC 7525, pertaining to epididmo-orchitis, is appropriate because the symptomatology for these disorders is similar and affects the same functions and anatomical areas. Under 38 C.F.R. § 4.115b, DC 7525, epididmo-orchitis is rated as a urinary tract infection. Under 38 C.F.R. § 4.115a, a 30 percent evaluation is warranted for a recurring urinary tract infection requiring drainage or hospitalization more than twice a year, or continuous intensive management; a 10 percent evaluation is warranted for a urinary tract infection requiring long-term drug therapy and one or two hospitalizations a year, or intermittent intensive management. The veteran underwent VA physical and radiological examinations and treatment from 1995 to 1999. September 1995 examination records note the veteran's report of having a repaired left hydrocele and absence of obstructive or irritative voiding symptoms or dysuria, hematuria, incontinence or urinary tract infections. Examiners found bilateral testicular calcifications, thickening of the scrotum wall and prominent right epididymis consistent with the veteran's history of recurrent inflammatory process. Treatment records from January 1996 to January 1997 document a painful urinary tract infection that resolved with conservative treatment, nocturia twice nightly, an improved urinary stream, a history of epididymitis, an enlarged left testicle, a tender right testicle and no lesions or ulcers. An April 1997 examination confirmed the veteran's report of right testicular pain and tenderness in the right spermatic cord. The veteran also complained of urinary hesitancy. Objective findings included an atrophied right testicle, absence of dysuria, hematuria, penile discharge or urinary tract infection. Treatment records from April 1997 to March 1998 attribute urinary hesitancy, diminished urinary stream and nocturia three or four times a night to benign prostatic hypertrophy. At VA examinations in November 1998 and February 1999 the veteran reported decreased stream force, daily urination every two or three hours, nocturia three or four times a night, hesitancy, dribbling, dysuria, and a history of urinary tract infections. He denied incomplete emptying, hematuria and incontinence. Physical and radiological examinations disclosed epididymal calcifications on the right. Diagnoses included moderate obstructive uropathy which responded well to medication. No medical records associated with the claims file include current findings pertaining to a left hydrocele. Although medical evidence confirms the urinary tract symptomatology described above, an opinion from a VA physician who reviewed the claims file states that none of the current symptoms are attributable to a service-connected disorder. Instead a May 1999 evaluation report states that symptomatology associated with the veteran's obstructive uropathy are attributable solely to a nonservice-connected prostate disorder and "are not related to his service- connected hydrocele or epididymis." There is no evidence in the claims file contradicting the opinion or suggesting that it is unreliable, incompetent or otherwise not creditable. In consideration of the foregoing, the Board finds that the veteran's left hydrocele and enlarged right epididymis are asymptomatic and warrant no more than noncompensable ratings. C. Conclusion In reaching its decision, the Board has carefully considered the history of the veteran's residuals of a left ankle and foot injury, a left hydrocele and an enlarged right epididymis and possible application of other provisions of 38 C.F.R., Parts 3 and 4 (pertaining to extra-schedular evaluation), notwithstanding whether the veteran or his representative requested such consideration. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (1991). However, the Board finds that the record does not show these disabilities to be so exceptional or unusual, with factors such as marked interference with employment or repeated hospitalization, as to render application of the regular schedular standards impractical and warrant extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The appeal is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals