Citation Nr: 1017483	
Decision Date: 05/12/10    Archive Date: 05/26/10

DOCKET NO.  07-01 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in 
Louisville, Kentucky


THE ISSUES

1.  Entitlement to an acquired psychiatric disorder, to 
include post-traumatic stress disorder (PTSD), depression, 
anxiety disorder, and panic attacks. 

2.  Entitlement to service connection for fatigue, sleeping 
disorder, and sleep apnea. 

3.  Entitlement to service connection for dizziness, vertigo, 
and balance problems. 

4.  Entitlement to service connection for respiratory 
problems, including asthma. 

5.  Entitlement to an evaluation in excess of 20 percent for 
residuals of surgery, left great toe. 

6.  Entitlement to an initial evaluation in excess of 10 
percent for polyarthralgias. 

7.  Entitlement to an initial evaluation in excess of 10 
percent for multi-focal tremors. 

8.  Entitlement to an initial evaluation in excess of 10 
percent for irritable bowel syndrome. 

9.  Entitlement to an increased (compensable) evaluation for 
bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel


INTRODUCTION

The Veteran served on active duty from November 1988 to 
October 1993.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Huntington, 
West Virginia and Louisville, Kentucky.  By a rating action 
in November 2004, Huntington, WV RO denied the claim for a 
rating in excess of 10 percent for residuals, surgery, left 
great toe.  Subsequently, in a January 2007 rating action, 
the Louisville, Kentucky RO increased the evaluation for 
residuals, surgery, left great toe from 10 percent to 20 
percent, effective June 3, 2004.  

By a rating action in July 2007, the RO denied the claims of 
entitlement to service connection for fatigue, joint pain, 
muscle pain, respiratory problems, and neurological symptoms, 
service connection for sleep disorder, vertigo, irritable 
bowel syndrome and PTSD.  A September 2008 rating decision 
granted service connection for polyarthralgias, rated as 10 
percent disabling; service connection as also granted for 
multi-focal tremors and irritable bowel syndrome, each 
evaluated as 10 percent disabling.  The Veteran perfected a 
timely appeal to those rating actions.  

In light of the recent decision of Clemens v. Shinseki, 23 
Vet. App. 1 (2009), in which it was determined the scope of a 
mental health disability claim includes any mental disability 
that may reasonably be accomplished by the claimant's 
description of the claim, reported symptoms, and other 
information of record, the Board considers the Veteran's 
claim of service connection for PTSD to be as styled on the 
title page.  

The issues of entitlement to service connection for an 
acquired psychiatric disorder to include PTSD and depression, 
service connection for respiratory problems to include 
asthma, and increased rating for residuals, surgery, left 
great toe are addressed in the REMAND portion of the decision 
below and is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1.  The Veteran had active service in the Southwest Asia 
Theater of operations during the Persian Gulf War.  

2.  The Veteran has been diagnosed as having obstructive 
sleep apnea and his complaints of problems with sleeping and 
fatigue have been attributed to this condition.  

3.  The preponderance of the evidence shows the Veteran did 
not have obstructive sleep apnea during service, or until 
more than ten years after his discharge, and that the 
condition is unrelated to his service.  

4.  The Veteran has been granted service connection for 
tinnitus based on exposure to acoustic trauma while he was on 
active duty.  

5.  An April 2007 VA examiner opined that the Veteran's 
development of benign paroxysmal vertigo was etiologically 
related to his tinnitus.  

6.  Polyarthralgia has not been manifested by objective 
episodic symptoms with exacerbations precipitated by 
environmental or emotional stress or by overexertion or being 
present more than one-third of the time; nor are they 
constant, or nearly so, and refractory to therapy.  

7.  The Veteran's multi-focal tremors are manifested by no 
more than moderate symptomatology.  

8.  Irritable bowel syndrome is manifested by alternating 
diarrhea and constipation but there is no reliable evidence 
that this condition is associated with more or less constant 
abdominal distress.  

9.  For the appellate period prior to September 18, 2008, the 
Veteran's had a Level II hearing loss in his right ear, and a 
Level I hearing loss in his left ear.  

10.  Audiometric testing on September 19, 2008 revealed that 
puretone thresholds at each of the four specified frequencies 
(1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more.  

11.  Using Table VIA, the September 2008 Audiological 
evaluation reveals the Veteran manifests Level V hearing in 
his right ear and level VI in his left ear.  


CONCLUSIONS OF LAW

1.  A sleep disorder and fatigue, claimed as obstructive 
sleep apnea, was not incurred in or aggravated by service; 
nor is it shown to be due to undiagnosed illness as a result 
of service in the Southwest Asia theater during the Persian 
Gulf War.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103(a), 5103A, 
5107 (West 2002 & Supp. 2009); 38 U.S.C.A. §§ 3.102, 3.159, 
3.303, 3.317 (2009).  

2.  Giving the benefit of the doubt to the Veteran, benign 
paroxysmal vertigo is proximately due to or the result of a 
service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 
5103, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.310 (2009).  

3.  The criteria for an initial evaluation in excess of 10 
percent for polyarthralgias have not been met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 
C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Codes 8850-5025 (2009).  

4.  The criteria for an initial rating in excess of 10 
percent for multi-focal tremors have not been met.  38 
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 
4.10, 4.20, 4.27, 4.124a, DCs 8881-8103 (2009).  

5.  The criteria for a rating in excess of 10 percent for 
irritable bowel syndrome have not been met.  38 U.S.C.A. 
§§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 
4.7, 4.114, Diagnostic Code (DC) 7319 (2009).  

6.  For the appellate period prior to September 19, 2008, the 
criteria for a compensable rating for bilateral hearing loss 
are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 
4.85, Diagnostic Code 6100 (2009).  

7.  As of September 19, 2008, the criteria for a 20 percent 
rating, but no more, for bilateral hearing loss have been 
met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.85-4.87, 
Diagnostic Code 6100 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist.

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 
C.F.R. §§ 3.159, 3.326(a) (2009).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant of the information and evidence not of record that 
is necessary to substantiate the claim; and to indicate which 
information and evidence VA will obtain and which information 
and evidence the claimant is expected to provide.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The U.S. Court of 
Appeals for Veterans Claims has held that VCAA notice should 
be provided to a claimant before the initial RO decision on a 
claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  
However, if VCAA notice is provided after the initial 
decision, such a timing error can be cured by subsequent 
readjudication of the claim, as in a statement of the case 
(SOC) or Supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 
Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. 
App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of 
letters dated in August 2004 and January 2007 from the RO to 
the Veteran which were issued prior to the RO decisions in 
November 2004, July 2007, and September 2008.  Additional 
letters were issued in May 2008 and November 2008.  Those 
letters informed the Veteran of what evidence was required to 
substantiate the claims and of his and VA's respective duties 
for obtaining evidence.  The Board finds that the content of 
those letters complied with the requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to 
notify and assist.  He was provided an opportunity at that 
time to submit additional evidence.  In addition, the January 
2007 SOC, the August 2008 SSOC, the September 2008 SOC, the 
February 2009 SOC, and the February 2009 SSOC provided the 
Veteran with an additional 60 days to submit additional 
evidence.  Thus, the Board finds that the purpose behind the 
notice requirement has been satisfied because the Veteran has 
been afforded a meaningful opportunity to participate 
effectively in the processing of his claims.  

It also appears that all obtainable evidence identified by 
the Veteran relative to his claim has been obtained and 
associated with the claims file, and that neither he nor his 
representative has identified any other pertinent evidence, 
not already of record, that would need to be obtained for a 
fair disposition of this appeal.  It is therefore the Board's 
conclusion that the Veteran has been provided with 
opportunity to submit evidence and argument in support of his 
claim, and to respond to VA notices.  

The Board is unaware of any outstanding evidence or 
information that has not already been requested.  Therefore, 
the Board is satisfied that the RO has complied with the duty 
to assist requirements of the VCAA and the implementing 
regulations.  Neither the Veteran nor his representative has 
contended that any evidence relative to the issues decided 
herein is absent from the record.  The Veteran has been 
afforded examinations on the issues decided herein.  McLendon 
v. Nicholson, 20 Vet. App. 79 (2006).  Significantly, the 
Veteran was afforded examinations in September 2004, April 
2007, and September 2008.  The reports reflect that the 
examiners solicited symptoms from the Veteran, examined the 
Veteran, and provided diagnoses consistent with the record.  
Therefore, these examinations are adequate.  Nieves- 
Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Accordingly, the Board finds that VA has satisfied its duty 
to assist the Veteran in apprising him as to the evidence 
needed, and in obtaining evidence pertinent to his claim 
under the VCAA.  Therefore, no useful purpose would be served 
in remanding this matter for yet more development. Such a 
remand would result in unnecessarily imposing additional 
burdens on VA, with no additional benefit flowing to the 
Veteran.  The Court of Appeals for Veterans Claims has held 
that such remands are to be avoided.  Sabonis v. Brown, 6 
Vet. App. 426, 430 (1994).  


II.  Factual background.

The record indicates that the Veteran served on active duty 
from November 1988 to October 1993.  The Veteran's DD Form 
214 indicates that he was awarded the National Defense 
Service Medal, the Kuwait Liberation Medal, and the Southwest 
Asia Service Medal with 3 Bronze stars.  

The service treatment reports, including his November 1988 
enlistment examination and July 1993 discharge examination, 
are completely silent with respect to any complaints, 
findings or diagnoses of a sleeping disorder.  The STRs show 
that the Veteran suffered fracture of the distal phalanx, 
left great toe.  He was diagnosed with hallux valgus 
deformity with questionable bunion formation, first 
metatarsophalangeal joint.  

On the occasion of an initial VA examination in May 1994, the 
Veteran was diagnosed with bilateral high frequency hearing 
loss, more impaired in the left than the right ear.  He was 
also diagnosed with status post bunionectomy and osteotomy of 
the left great toe, with subjective complaints of continued 
pain.  

The Veteran was afforded another VA Audiological evaluation 
in September 2004.  On the authorized Audiological 
evaluation, pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

20
20
20
50
LEFT

15
30
60
60

Speech audiometry revealed speech recognition ability of 96 
percent in the right ear and of 96 in the left ear.  The 
examiner stated that hearing test results revealed normal 
hearing through 3000 Hz with a moderate sensorineural hearing 
loss at 4000 Hz in the right ear.  For the left ear, there 
was normal hearing through 1000 Hz with a mild to moderately 
severe sensorineural hearing loss from 2000 to 4000 Hz.  
Speech was recognition ability was excellent bilaterally.  It 
was the opinion of the licensed audiologist based on review 
of the claims file, specifically the information referenced 
in the review of medical records section, and based on the 
Veteran's reported history, that his hearing loss in the 
right ear and his tinnitus are at least as likely as not a 
result of or aggravated by his noise exposure while in 
military service.  

The Veteran was also afforded a VA examination for evaluation 
of his feet in September 2004.  The Veteran indicated that 
the pain in his left great toe is worse; he stated that he is 
trying to cope with his great toe during his everyday life 
with physical activity.  He reported constant pain in the 
great toe of the left foot, as well as stiffness, swelling 
with prolonged weightbearing, redness, fatigability, and lack 
of endurance.  He is limited with flare-up, in that he has to 
sit down and get off the foot.  He denied the use of a brace 
or orthotics.  He denied the use of external devices.  He 
stated that he tries to stay in a soft shoe.  On examination, 
it was noted that his gait is with a left leg limp.  He had a 
normal longitudinal arch bilaterally with normal Achilles 
tendon alignment.  Heel walk was normal.  Tandem walk was 
slightly unsteady.  He had a well-healed first foot left 
great dorsal metatarsal longitudinal scar.  He had normal 
pedal pulses and posterior tibial pulses.  He was able to 
supinate and pronate without any difficulty.  Sensation was 
decreased to pinprick and soft touch.  There was no left 
great toe deformity or discoloration.  There was no atrophy 
of the feet.  Active flexion and hyperextension of the left 
great toe metatarsophalangeal joint was 0 degrees with 
attempt.  Left great toe passive metatarsophalangeal joint, 
interphalangeal joint flexion was 30 degrees of the left 
great toe.  Dorsiflexion was 15 degrees with pain.  His left 
great toe range of motion was additionally limited by pain 
following attempted use with repetitive motion.  The 
pertinent diagnoses were status post left great toe 
bunionectomy per history, and status post left great toe 
fusion per history.  

VA progress notes dated from November 2004 through October 
2006 reflect diagnoses of tinnitus, vertigo, hearing loss, 
gastroesophageal reflux disease and depression.  Progress 
notes in September 2006 reflect diagnoses of tinnitus, 
vertigo, and hearing loss.  A primary care note, dated in 
October 2006 indicates that the Veteran had an MRI of the 
brain done for vertigo symptoms; this was normal.  

The Veteran was afforded a Gulf War examination in April 
2007.  The Veteran complained of fatigue; he stated that 
symptoms of fatigue became noticeable in April 1991.  The 
Veteran indicated that many people tell him that he snores 
loud.  He also reported restlessness of his legs.  The 
Veteran also complained of abdominal pain, nausea, diarrhea 
and bloating, brain fog, shortness of breath with rest, 
visual disturbances, dizziness, and balance problems.  The 
Veteran reported symptoms of alternation of constipation and 
diarrhea on a daily basis.  He also reported daily abdominal 
pain with cramping.  The veteran stated that he has a bloated 
feeling at times.  

The examiner reported a diagnosis of fatigue, by history, 
with pulmonary sleep study report and evidence of mild 
obstructive sleep apnea, which is likely the cause of the 
Veteran's fatigue since this is not treated.  Symptom 
associated with this diagnosis was reported as fatigue.  The 
examiner also reported a diagnosis of bilateral knee and 
elbow pain by history.  Symptoms associated with this 
diagnosis were pain and stiffness.  Another reported 
diagnosis was irritable bowel syndrome.  The examiner noted 
that the Veteran's service treatment records with abdominal 
complaints were associated with a diagnosis of peptic acid 
disease.  The effect of this disease is that the Veteran has 
to constantly go to the bathroom and it could be sudden.  The 
examiner also reported a diagnosis of myofascial pain by 
history.  A respiratory condition by history.  There was no 
current medical evidence to demonstrate a disability.  
Tremors by history; there were no current medical evidence to 
demonstrate a disability.  The Veteran reported a diagnosis 
of mild obstructive apnea.  

On the authorized Audiological evaluation in April 2007, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

30
30
25
55
LEFT

20
35
65
65

Speech audiometry revealed speech recognition ability of 88 
percent in the right ear and of 92 in the left ear.  The 
examiner noted that the Veteran had normal to moderately 
severe sensorineural hearing loss in the right ear and normal 
to moderately severe sensorineural hearing loss in the left 
ear.  The examiner stated that, based upon discussion with 
the Veteran regarding vertigo, stated as secondary to his 
tinnitus, is related to military service.  

On the occasion of another authorized Audiological evaluation 
in September 2008, pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT

55
60
70
75
LEFT

55
65
85
85

Speech audiometry revealed speech recognition ability of 72 
percent in the right ear and of 80 in the left ear.  (average 
65 dc in the right and 72.5 in the left).  The pertinent 
diagnoses were moderate to severe sensorineural hearing loss 
in both ears.  The examiner stated that the test results were 
of poor consistency and were not felt to be a true 
representation of the Veteran's hearing ability.  

The examiner was also afforded a Gulf War examination in 
September 2008.  The examiner noted that the Veteran has been 
evaluated by a neurologist who defined his complained of 
generalized joint and muscle pain as polyarthralgias, and has 
suggested Tylenol arthritis medication which has been helpful 
in improving his symptoms.  The rheumatologist did not 
suggest the possibility of fibromyalgia.  The Veteran 
indicated that he has had problems with unexplained tremors, 
which seems most pronounced in his right hand.  The Veteran 
indicated that the problem is most embarrassing since it can 
last 30-45 minutes; he tries to eat, he cannot hold any food.  
The Veteran indicated that he used to have extreme cramps of 
the stomach; after the cramping was present for several 
minutes to 10 minutes or so, he would get the feeling that 
diarrhea was coming on, and he would have to get to the 
bathroom.  The Veteran indicated that he has currently 
started treatment with medications to calm his stomach, and 
bowels and has done much better.  His incidence of cramping 
and diarrhea are very infrequent.  The Veteran also indicated 
that he has been treated for vertigo and dizziness for many 
years; he noticed that this started after he was on active 
duty.  

Following an evaluation, the examiner reported diagnosis of 
polyarthralgias, associated with generalized joint and muscle 
pain.  The examiner also reported a diagnosis of multi-focal 
tremors, which causes decreased manual dexterity.  The 
examiner stated that he did not feel that an EMG/NCV were 
appropriate since the situation occurs at unknown intervals, 
and does not cause paralysis, or loss of function.  Irritable 
bowel syndrome; he noted that the Veteran was doing well with 
his symptoms; when they do occur, he experiences severe 
cramping of the abdomen.  The examiner also reported a 
diagnosis of benign paroxysmal vertigo.  


III.  Legal analysis-Service Connection.

An award of service connection is warranted for a disability 
"resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty."  38 U.S.C.A. §§ 1110, 1131.  To establish a right to 
compensation for a present disability, a Veteran must show: 
"(1) the existence of a present disability; (2) in-service 
incurrence or aggravation of a disease or injury; and (3) a 
causal relationship between the present disability and the 
disease or injury incurred or aggravated during service"--the 
so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 
1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 
1362 (2009).  

In addition, the law provides that, where a Veteran served 
ninety days or more of active military service and an organic 
disease of the nervous system becomes manifest to a degree of 
10 percent within one year from the date of termination of 
such service, such disease shall be presumed to have been 
incurred in service, even though there is no evidence of such 
disease during the period of service.  38 U.S.C.A. §§ 1101, 
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  While the 
disease need not be diagnosed within the presumption period, 
it must be shown, by acceptable lay or medical evidence, that 
there were characteristic manifestations of the disease to 
the required degree during that time.  Id.  

For a showing of chronic disease in service, there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required where 
the condition noted during service is not, in fact, shown to 
be chronic or where the diagnosis of chronicity may be 
legitimately questioned.  If the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b) (2009).  

Service connection may also be established for disability 
that is proximately due to or the result of a service- 
connected disease or injury.  38 C.F.R. § 3.310(a) (2006); 
See Harder v. Brown, 5 Vet. App. 183, 187 (1993).

Prior to October 10, 2006, the provisions of 38 C.F.R. § 
3.310 directed, in pertinent part, that: Except as provided 
in § 3.300(c), disability which is proximately due to or the 
result of a service- connected disease or injury shall be 
service-connected. When service connection is thus 
established for a secondary condition, the secondary 
condition shall be considered a part of the original 
condition.

The Court clarified that service connection shall be granted 
on a secondary basis under the provisions of 38 C.F.R. 
§ 3.310(a) where it is demonstrated that a service-connected 
disorder has aggravated a nonservice-connected disability.  
Allen v. Brown, 7 Vet. App. 439 (1995).  The term, 
"disability", as contemplated by the VA regulations, means 
"impairment in earning capacity resulting from . . . [all 
types of] diseases or injuries [encountered as a result of or 
incident to military service] and their residual conditions. 
. . ." 38 C.F.R. § 4.1 (1990).  

Pursuant to § 1110 and § 3.310(a), when aggravation of a 
Veteran's non-service-connected condition is proximately due 
to or the result of a service-connected condition, such 
Veteran shall be compensated for the degree of disability 
(but only that degree) over and above the degree of 
disability existing prior to the aggravation.  Cf. 38 C.F.R. 
§ 3.322 (1994) (in compensating for aggravation of a 
preservice disability by active service, it "is necessary to 
deduct from the present evaluation the degree, if 
ascertainable, of the disability existing at the time of 
entrance into active service, in terms of the rating schedule 
. . .").  Allen v. Brown, 7 Vet. App. 439 (1995).  

The amendment of October 2006 to 38 C.F.R. § 3.310 sets a 
standard by which a claim based on aggravation of a non- 
service-connected disability by a service-connected one is 
judged.  Although VA has indicated that the purpose of the 
regulation was merely to apply the Court's ruling in Allen v. 
Brown, 7 Vet. App. 439 (1995) (which allowed for secondary 
service connection on an aggravation basis), it was made 
clear in the comments to the regulation that the changes were 
intended to place a burden on the claimant to establish a 
pre-aggravation baseline level of disability for the non- 
service-connected disability before an award of service 
connection based on aggravation may be made.  This had not 
been VA's practice, which strongly suggests that the recent 
change amounts to a substantive change in the regulation. 
Given what appear to be substantive changes, and because the 
veteran's claim was pending before the regulatory change was 
made, the Board will consider the version of 38 C.F.R. 
§ 3.310 in effect before the change, which version favors the 
claimant.  38 C.F.R. § 3.310 (2009).  

Service connection may be granted to a Persian Gulf veteran 
who exhibits objective indications of chronic disability 
resulting from an undiagnosed illness or a medically 
unexplained chronic multi-symptom illness (such as chronic 
fatigue syndrome, fibromyalgia, and irritable bowel syndrome) 
that is defined by a cluster of signs or symptoms, or 
resulting from an illness or combination of illnesses 
manifested by one or more signs or symptoms such as those 
listed below.  

The symptoms must be manifest to a degree of 10 percent or 
more during the presumptive periods prescribed by the 
Secretary or by December 31, 2011.  By history, physical 
examination and laboratory tests, the disability cannot be 
attributed to any known clinical diagnosis.  Objective 
indications of chronic disability include both "signs" in the 
medical sense of objective evidence perceptible to an 
examining physician, and other, non-medical indicators that 
are capable of independent verification.  Disabilities that 
have existed for 6 months or more and disabilities that 
exhibit intermittent episodes of improvement and worsening 
over a 6-month period will be considered chronic.  

The signs and symptoms which may be manifestations of 
undiagnosed illness or a chronic multi-symptom illness 
include, but are not limited to: (1) fatigue, (2) signs or 
symptoms involving the skin, (3) headaches, (4) muscle pain, 
(5) joint pain, (6) neurologic signs or symptoms, (7) 
neuropsychological signs or symptoms, (8) signs or symptoms 
involving the respiratory system (upper or lower), (9) sleep 
disturbance, (10) gastrointestinal signs or symptoms, (11) 
cardiovascular signs or symptoms, (12) abnormal weight loss, 
or (13) menstrual disorders.  38 U.S.C.A. §§ 1117, 1118 (West 
2002); 38 C.F.R. § 3.317 (2009).  

The Veteran can attest to factual matters of which she had 
first-hand knowledge, e.g., experiencing pain in service, 
reporting to sick call, being placed on limited duty, and 
undergoing physical therapy.  See Washington v. Nicholson, 19 
Vet. App. 362, 368 (2005).  However, the veteran as a lay 
person has not been shown to be capable of making medical 
conclusions, thus, her statements regarding medical causation 
are not competent.  Espiritu v. Derwinski, 2 Vet. App. 492, 
495 (1992).  Thus, while the veteran is competent to report 
what comes to her through her senses, she does not have 
medical expertise.  See Layno v. Brown, 6 Vet. App. 465 
(1994).  Therefore, she cannot provide a competent opinion 
regarding diagnosis and causation.  

However, the Federal Circuit has held that lay evidence is 
one type of evidence that must be considered and competent 
lay evidence can be sufficient in and of itself. The Board, 
however, retains the discretion to make credibility 
determinations and otherwise weigh the evidence submitted, 
including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 
1331, 1335 (Fed. Cir. 2006).  This would include weighing the 
absence of contemporary medical evidence against lay 
statements.  

In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), 
the Federal Circuit determined that lay evidence can be 
competent and sufficient to establish a diagnosis of a 
condition when (1) a layperson is competent to identify the 
medical condition (noting that sometimes the layperson will 
be competent to identify the condition where the condition is 
simple, for example a broken leg, and sometimes not, for 
example, a form of cancer), (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional.  The relevance of lay evidence is not 
limited to the third situation, but extends to the first two 
as well.  Whether lay evidence is competent and sufficient in 
a particular case is a question of fact.  

Once evidence is determined to be competent, the Board must 
determine whether such evidence is also credible.  See Layno, 
supra (distinguishing between competency ("a legal concept 
determining whether testimony may be heard and considered") 
and credibility ("a factual determination going to the 
probative value of the evidence to be made after the evidence 
has been admitted")).  Barr v. Nicholson, 21 Vet. App. 303 
(2007).  

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.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).  

A.  Sleep problems/fatigue/sleep apnea.

The Veteran claims that his sleep problems are due to an 
undiagnosed illness, which manifested after his return from 
Saudi Arabia.  In order for a disability to be awarded 
service connection under the provisions of 38 U.S.C.A. 
§ 1117; 38 C.F.R. § 3.317(a), the disorders may not be 
attributable to a known diagnosis.  

Here, the Board notes the Veteran's complaints of sleep 
problems, to include loud snoring and fatigue, have been 
attributed to a diagnosis of obstructive sleep apnea.  As 
this is a known clinical diagnosis, service connection is not 
warranted based on having an undiagnosed illness.  This does 
not preclude consideration of the Veteran's claim on a direct 
causation basis.  

While the record shows the Veteran has been diagnosed with 
sleep apnea, the preponderance of the evidence is against a 
finding that it is related to the Veteran's active duty 
service period.  

The Veteran's service treatment records are completely silent 
with respect to any complaints or findings of a sleep 
disorder.  Post service treatment records do not show any 
findings of obstructive sleep apnea until April 2007; 
moreover, there is no competent evidence that links it to 
service.  

In sum, the evidence is not in relative equipoise.  The file 
contains no record of sleep apnea diagnosed during service.  
It wasn't until April 2007 that he was diagnosed with OSA; 
however, the record does not contain any medical evidence 
linking sleep apnea to service.  Though the Veteran contends 
that he currently has sleep apnea that is related to his 
military service, there is no medical evidence on file 
supporting the Veteran's assertions and his statements do not 
constitute competent evidence of a medical nexus opinion.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  

In the Board's judgment, the disorder in question, which was 
diagnosed on the basis of clinical and laboratory 
examinations, is not the type of disability that can be 
diagnosed by a layman.  Jandreau, supra.  Thus, while the 
Veteran is competent to report sleep problems and fatigue, he 
does not have medical expertise to diagnose the underlying 
disability (sleep apnea).  See, e.g., Layno v. Brown, 6 Vet. 
App. 465 (1994).  The statements from the Veteran are not 
competent evidence on the question of medical causation, that 
is, the relationship between the current sleep apnea and his 
military service.  

In this case, a layperson cannot provide a competent opinion 
regarding diagnosis or causation.  For this reason, and 
because the presumption of service connection due to an 
undiagnosed illness is not applicable, service connection for 
obstructive sleep apnea is not warranted.  38 U.S.C.A. 
§§ 1110, 1117, 1118, 1131, 38 C.F.R. §§ 3.303, 3.317(a) (1).  
Thus, the preponderance of the evidence is against the claim 
and the appeal must therefore be denied.  38 U.S.C.A. 
§ 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 
2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  

B.  Vertigo.

As previously noted, the Board must determine whether the 
evidence supports the claim or is in relative equipoise, with 
the Veteran prevailing in either case, or whether the 
preponderance of the evidence is against the claim, in which 
case, service connection must be denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).  In weighing the evidence 
of record in the present case, the Board is of the opinion 
that the weight of the evidence is in equipoise as to a 
finding that the Veteran's benign paroxysmal vertigo is are 
causally related to his service-connected tinnitus.  

Tinnitus is "a sensation of noise (as a ringing or roaring) 
that is caused by a bodily condition (as wax in the ear or a 
perforated tympanic membrane").  Butts v. Brown, 5 Vet. App. 
532, 540 (1993).  Tinnitus is a noise in the ears, such as 
ringing, buzzing, roaring, or clicking.  YT v Brown, 9 Vet. 
App. 195, 196 (1996).  Tinnitus is a ringing, buzzing noise 
in the ears.  Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  
"Tinnitus can be caused by a number of conditions, including 
injuries, acute diseases, and drug reactions [but] 
disablement from tinnitus does not depend on its origin." 59 
Federal Register 17297 (April 12, 1994).

Moreover, tinnitus is one of the disabilities which the Court 
has specifically held the lay person is capable of observing.  
See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002); 
Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  

The records show that the Veteran is currently service 
connected for tinnitus.  And, clinical treatment records show 
several complaints of positional vertigo on a periodic basis 
and he has been given a variety of medications to treat the 
symptoms.  

Following a VA examination in April 2007, the VA examiner 
stated that, based upon discussion with the Veteran regarding 
the Vertigo, it was the opinion that it is not likely that 
vertigo, stated as secondary to his tinnitus, is related to 
military service.  

In light of the above statement, while the examiner stated 
that the Veteran's vertigo was not related to service, he 
also states that the Vertigo was secondary to tinnitus.  

In this regard, it is noteworthy that one qualified medical 
expert has held that the Veteran's benign paroxysmal vertigo 
is a probable result of his tinnitus, whether due to acoustic 
trauma or being exposed to toxic materials.  The Board finds 
that this a reasonable conclusion, based upon medical 
expertise and a credible, hands-on neurological and 
Audiological assessment of the Veteran's particular 
circumstances and clinical findings.  

Moreover, the Board notes that even in the Rating Schedule 
and other regulatory discussions of symptoms associated with 
a myriad of disabilities in which dizziness or vertigo may 
well be an integral component, e.g., in concussion injuries, 
hypertension, headaches, or in tinnitus which progresses to 
Meniere's disease.  In fact, dizziness which may be 
manifested as vertigo, positional or otherwise, is found as 
an integral component to variety of other disabilities, for 
several of which the Veteran already has service connection.  
Accordingly, it would be difficult to isolate benign 
positional vestibular disorder or vertigo as having a sole 
source in this case, and such specificity is unnecessary.  

Although the evidence is not unequivocal, the Board finds, 
without determining error in the action by the RO, that a 
reasonable doubt is raised which must be resolved in the 
Veteran's favor and that benign paroxysmal vertigo is either 
the result of service or cannot be dissociated from one or 
more of the Veteran's service-connected disability.  


IV.  Legal analysis-Higher Evaluations.

Disability evaluations are determined by evaluating the 
extent to which a Veteran's service-connected disability 
adversely affects his ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities (rating schedule).  38 
U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 
4.2, 4.10 (2009).  If two evaluations are potentially 
applicable, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that evaluation; otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7 (2009).  

A disability may require re-evaluation in accordance with 
changes in a Veteran's condition.  It is thus essential, in 
determining the level of current impairment, that the 
disability be considered in the context of the entire 
recorded history.  38 C.F.R. § 4.1.  However, where an award 
of service connection for a disability has been granted and 
the assignment of an initial evaluation is at issue, separate 
evaluations can be assigned for separate periods of time 
based on the facts found. In other words, the evaluations may 
be "staged."  Fenderson v. West, 12 Vet. App. 119, 126 
(2001).  

When all the evidence is assembled, the Board is then 
responsible for determining whether the evidence supports the 
claim or is in relative equipoise, with the appellant 
prevailing in either event, or whether the preponderance of 
the evidence is against the claim, in which case the claim is 
denied.  See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; and 
Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990).  

A.  Polyarthralgia.

The Veteran's service-connected polyarthralgias has been 
rated under the rpovisions of Diagnostic Code 5025, which 
addresses fibromyalgia.  When the symptoms associated with 
fibromyalgia require constant medication for control, a 10 
percent rating is for assignment.  When the symptoms are 
episodic, with exacerbations often precipitated by 
environmental or emotional stress or by overexertion, but are 
present more than one-third of the time, a 20 percent rating 
is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5025.  

After having carefully reviewed the evidence of record, the 
Board finds that the preponderance of the evidence is against 
an initial evaluation in excess of 10 percent for 
polyarthralgias since September 5, 2006.  While the record 
indicates that the Veteran has numerous areas of joint and 
muscle pain, his symptoms have improved with over the counter 
medication.  Moreover, the objective clinical findings do not 
show episodic symptoms with exacerbations precipitated by 
environmental or emotional stress or by overexertion or being 
present more than one-third of the time; nor are they 
constant, or nearly so, and refractory to therapy.  

In view of the foregoing, the preponderance of the competent 
medical evidence is against a higher rating for 
polyarthralgias at any time since September 5, 2006.  The 
Veteran does not meet the criteria for a higher rating under 
Diagnostic Code 5025.  While the Veteran has alleged having 
exacerbations of his disability, the 10 percent evaluation 
contemplates such exacerbations.  3 8 C.F.R. § 4.1 (degrees 
of disability are considered adequate to compensate for 
considerable loss of working time from exacerbations or 
illnesses proportionate to the severity of the several grades 
of disability).  The September 2008 VA examination occurred 
after the claimed instances of that his disability was 
exacerbated.  The clinical findings do not show that the 
service-connected disability sustained a permanent worsening 
to warrant an evaluation in excess of 10 percent under 
Diagnostic Code 5025.  See 38 C.F.R. § 4.71a, Diagnostic Code 
5025.  

In evaluating the Veteran's service-connected 
polyarthralgias, the Board is cognizant of the provisions of 
38 C.F.R. §§ 4.40, 4.45, and 4.59, as well as the holding in 
DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  There is, 
however, no evidence of such objective signs as disuse 
atrophy, abnormal movement, weakness, or pain on motion 
against resistance which would support an increased rating 
under these regulations.  

The Board considered whether the case should be referred to 
the Director of the VA Compensation and Pension Service for 
extra-schedular consideration under 38 C.F.R. § 3.321(b) (1).  
The veteran has not, however, required frequent 
hospitalization for her service-connected disability and the 
manifestations of such are consistent with the assigned 
schedular evaluation.  In sum, there is no indication that 
the average industrial impairment from the disability would 
be in excess of that contemplated by the evaluations assigned 
for the disability.  Therefore, referral of this case for 
extra-schedular consideration is not in order.  See Floyd v. 
Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. 
App. 337 (1996).  

In view of the denial of entitlement to an increased 
evaluation, the Board finds no basis upon which to predicate 
the assignment of "staged" ratings pursuant to Fenderson.  In 
reaching the conclusions above the Board has considered the 
applicability of the benefit of the doubt doctrine.  However, 
as the preponderance of the evidence is against the veteran's 
claim, that doctrine is not applicable in the instant appeal.  
See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 
1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  Therefore, the appeal must be denied.  

B.  Multi-focal tremors.

The Veteran lacks a definitive diagnosis that clearly places 
his condition in one of the diagnostic codes listed under 
neurological conditions and convulsive disorders.  His 
condition, therefore, must be rated by analogy to a similar 
condition.  See 38 C.F.R. §§ 4.20, 4.27 (2008).  The RO rated 
his disability as analogous to a convulsive tic.  38 C.F.R. 
§ 4.124, Diagnostic Codes (DCs) 8911, 8103.  

Under Diagnostic Code 8103, the rating for convulsive tic 
depends upon the frequency and severity of attacks and the 
muscle groups involved.  A noncompensable rating is warranted 
when the disorder is mild, a 10 percent rating is warranted 
when the disorder is moderate, and a maximum 30 percent 
rating is warranted when the disorder is severe.  38 C.F.R. 
§ 4.124a, Diagnostic Code 8103.  

The terms "mild," "moderate," and "severe" are not defined in 
the rating schedule; rather than applying a mechanical 
formula, VA must evaluate all the evidence to the end that 
its decisions are equitable and just.  38 C.F.R. § 4.6.  

The Veteran's disability has not been described as a severe 
tremor.  Moreover, severe symptomatology is not otherwise 
shown.  For example, the VA examiner in September 2008 stated 
that he did not feel that EMG/NCV were appropriate since the 
situation occurred at unknown intervals, and did not cause 
paralysis.  No other evidence shows more than moderate 
symptoms.  

Consideration has also been given regarding whether the 
schedular evaluation is inadequate, thus requiring that the 
RO refer a claim to the Chief Benefits Director or the 
Director, Compensation and Pension Service, for consideration 
of "an extra-schedular evaluation commensurate with the 
average earning capacity impairment due exclusively to the 
service-connected disability or disabilities."  38 C.F.R. 
§ 3.321(b) (1) (2009); Barringer v. Peake, 22 Vet. App. 242, 
243-44 (2008) (noting that the issue of an extraschedular 
rating is a component of a claim for an increased rating and 
referral for consideration must be addressed either when 
raised by the veteran or reasonably raised by the record).  
An extra-schedular evaluation is for consideration where a 
service-connected disability presents an exceptional or 
unusual disability picture with marked interference with 
employment or frequent periods of hospitalization that render 
impractical the application of the regular schedular 
standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  

An exceptional or unusual disability picture occurs where the 
diagnostic criteria do not reasonably describe or contemplate 
the severity and symptomatology of the veteran's service- 
connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 
(2008). If there is an exceptional or unusual disability 
picture, then the Board must consider whether the disability 
picture exhibits other factors such as marked interference 
with employment and frequent periods of hospitalization.  Id. 
at 115-116.  When those two elements are met, the appeal must 
be referred for consideration of the assignment of an 
extraschedular rating.  Otherwise, the schedular evaluation 
is adequate, and referral is not required.  38 C.F.R. 
§ 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluation in this case is not 
inadequate.  The Veteran has not required frequent 
hospitalization due to service-connected disorders.  
Moreover, marked interference with employment has not been 
shown.  In the absence of any additional factors, the RO's 
failure to consider or to refer this issue for consideration 
of an extraschedular rating was not prejudicial.  

C.  Irritable bowel syndrome.

The Veteran currently has a 10 percent rating for his IBS 
under 38 C.F.R. § 4.114, DC 7319.  Under DC 7319, a 10 
percent evaluation requires moderate irritable colon syndrome 
with frequent episodes of bowel disturbance with abdominal 
distress; and the highest available rating for this 
condition, 30 percent, requires severe irritable colon 
syndrome with diarrhea, or alternating diarrhea and 
constipation, with more or less constant abdominal distress.  
Id.  

With the above criteria in mind, the relevant facts will be 
summarized.  Service connection for irritable bowel syndrome 
was granted by a September 2008 rating decision.  A 10 
percent rating was assigned.  Pertinent evidence thereafter 
includes reports from an April 2007 VA examination that 
showed the Veteran reported alternating constipation and 
diarrhea on a daily basis.  He also described periods of 
cramping followed by diarrhea, early satiety and flatulence.  
On examination, the abdomen was normal, with no palpable 
masses or guarding.  On the occasion of another VA 
examination in September 2008, the Veteran reported a history 
of severe cramps that are relieved by bowel movements, which 
is mostly diarrhea.  He stated that he was currently taking 
medications that have improved his symptoms.  The cramping 
and diarrhea were described as very infrequent.  

Applying the pertinent criteria to the facts summarized 
above, while alternating diarrhea and constipation has been 
demonstrated by some of the clinical evidence, the medical 
record reflects intermittent but not "more or less constant," 
abdominal distress.  Moreover, as noted above, during the 
most recent VA examination, the Veteran reported improved 
symptoms with infrequent diarrhea and cramping.  There is 
otherwise no objective evidence indicating that the Veteran 
has more or less "constant" abdominal stress associated with 
his irritable bowel syndrome.  As such, an increased rating 
of 30 percent rating for irritable bowel syndrome under DC 
7319 may not be assigned.  

In exceptional cases where schedular evaluations are found to 
be inadequate, the RO may refer a claim to the Chief Benefits 
Director or the Director, Compensation and Pension Service, 
for consideration of "an extra-schedular evaluation 
commensurate with the average earning capacity impairment due 
exclusively to the service-connected disability or 
disabilities."  38 C.F.R. § 3.321(b) (1) (2009).  The 
governing norm in these exceptional cases is: A finding that 
the case presents such an exceptional or unusual disability 
picture with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards."  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  In 
this case, however, the schedular evaluation is not 
inadequate.  Ratings in excess of that currently assigned are 
provided for certain manifestations of the veteran's service- 
connected residuals, but those manifestations are not present 
in this case.  Moreover, the Board finds no evidence of an 
exceptional disability picture.  The Veteran has not required 
frequent hospitalizations due to his irritable bowel 
syndrome, and his service-connected residuals have not shown 
functional limitation beyond that contemplated by the 10 
percent currently assigned.  Accordingly, referral of this 
decision for extraschedular consideration is not indicated.  

The Veteran asserts a much more debilitating condition due to 
his irritable bowel syndrome than was demonstrated by the 
evidence cited above, and the Board fully respects the 
Veteran's sincere assertions in this case.  However, it finds 
the probative weight of this positive evidence to be overcome 
by the more objective negative evidence cited above.  See 
Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom.  
Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 
119 S. Ct. 404 (1998).  See also Espiritu v. Derwinski, 2 
Vet. App. 492 (1992); Francisco v. Brown, 7 Vet. App. at 55 
(1994).  Thus, as the probative weight of the negative 
evidence exceeds that of the positive, the claim must be 
denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

D.  Bilateral hearing loss prior to September 19, 2008.

Evaluations of bilateral hearing loss range from 
noncompensable to 100 percent based on organic impairment of 
hearing acuity, as measured by a controlled speech 
discrimination test (Maryland CNC) and the average hearing 
threshold, as measured by puretone audiometric tests at the 
frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The 
Rating Schedule establishes 11 auditory acuity levels 
designated from Level I, for essentially normal hearing 
acuity, through level XI, for profound deafness.  

Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of 
Hearing Impairment Based on Puretone Threshold Average and 
Speech Discrimination) is used to determine a Roman numeral 
designation (I through XI) for hearing impairment based on a 
combination of the percent of speech discrimination 
(horizontal rows) and the puretone threshold average 
(vertical columns).  The Roman numeral designation is located 
at the point where the percentage of speech discrimination 
and puretone average intersect.  38 C.F.R. § 4.85(b).  The 
puretone threshold average is the sum of the puretone 
thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 
4.  This average is used in all cases to determine the Roman 
numeral designation for hearing impairment.  38 C.F.R. 
§ 4.85(d).  

Under 38 C.F.R. § 4.85, Table VII (Percentage Evaluations for 
Hearing Impairment), the percentage evaluation is determined 
by combining the Roman numeral designations for hearing 
impairment of each ear.  The horizontal rows represent the 
ear having the better hearing and the vertical columns the 
ear having the poor hearing.  The percentage evaluation is 
located at the point where the rows and column intersect.  38 
C.F.R. § 4.85(e).  

38 C.F.R. § 4.86(a) specifies that when the puretone 
threshold at each of the four specified frequencies (1000, 
2000, 3000, and 4000 Hertz) is 55 decibels or more, the 
rating specialist will determine the Roman numeral 
designation for hearing impairment from either Table VI or 
Table VIA, whichever results in the higher numeral.  Each ear 
will be evaluated separately.  38 C.F.R. § 4.86(a).  

In essence, defective hearing is rated on the basis of a mere 
mechanical application of the rating criteria.  Lendenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).

When the puretone threshold at each of the four specified 
frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 
decibels or more, Table VI or Table VIa is to be used, 
whichever results in the higher numeral.  38 C.F.R. 
§ 4.86(a).  Additionally, when the puretone threshold is 30 
decibels or less at 1,000 Hertz, and 70 decibels or more at 
2,000 Hertz, Table VI or Table VIa is to be used, whichever 
results in the higher numeral.  Thereafter, that numeral will 
be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).  
The evidence of record herein indicates that the Veteran's 
bilateral hearing loss pattern does not fit the requirements 
of an unusual pattern of hearing impairment for the period 
prior to September 19, 2008.  

After a review of the evidence, the Board finds that the 
criteria for a compensable rating for the veteran's service- 
connected bilateral hearing loss disability are not met for 
the period prior to September 19, 2008.  Accordingly, his 
claim for a compensable rating fails for the period prior 
September 19, 2008.  

Based on the April 2007 VA examination report, audiological 
evaluation shows a right ear puretone decibel loss of 35 with 
speech recognition of 88 percent.  This corresponds to a 
numeric designation of Level II hearing in the right ear.  38 
C.F.R. § 4.87, Table VI (2009).  He has a left ear average 
puretone decibel loss of 46.25 with speech recognition of 92 
percent.  These findings are consistent with Level I hearing 
in the left ear.  These combined numeric designations result 
in a rating of 0 percent under Diagnostic Code 6100.  38 
C.F.R. § 4.85, Table VII (2009).   

No other medical records contain the puretone threshold 
average and speech discrimination percentage scores needed to 
determine the level of hearing loss according to VA 
regulation prior to September 19, 2008.  Accordingly, the 
Board finds that the preponderance of the evidence is against 
entitlement to a compensable disability rating for bilateral 
hearing prior to September 19, 2008.  38 C.F.R. §§ 4.3, 4.85, 
DC 6100.  

E.  Bilateral Hearing Loss Since September 19, 2008.

The Veteran underwent a VA Audiological evaluation on 
September 19, 2008.  The average puretone threshold was 65 dB 
in the right ear and 72.5 dB in the left ear.  Speech 
audiometry revealed speech recognition ability of 72 percent 
in the right ear and 80 percent in the left ear.  Applying 
the results from the September 2008 VA audioligcal evaluation 
yields a Roman numeral value of V for the right ear and IV 
for the left ear.  Applying these values to Table VII, the 
Board finds that the Veteran's bilateral hearing loss would 
be evaluated as 10 percent disabling.  

However, since each of the puretone thresholds is 55 decibels 
or more, the Board must determine the Roman numeral 
designation using Table VIA, and then use the higher numeral 
in rating his hearing loss.  Using this table, the Veteran's 
bilateral hearing loss meets the criteria for a 20 percent 
rating.  The findings from the September 2008 Audiological 
evaluation report yield a numerical designation of V for the 
right ear - between 63 and 69 percent average puretone 
decibel hearing loss - and a numerical designation of VI for 
the left ear - between 70 and 76 percent average puretone 
decibel hearing loss.  Entering the category designations for 
each ear into Table VII produces a disability percentage 
rating of 20 percent.  Thus, a 20 percent rating is warranted 
for the veteran's bilateral hearing loss.  

The Board has considered lay statements provided by the 
veteran to determine whether a disability rating higher than 
20 percent is appropriate.  However, his contentions are 
insufficient to establish entitlement to a disability rating 
higher than 20 percent for defective hearing because ". . . 
disability ratings for hearing impairment are derived by a 
mechanical application of the rating schedule to the numeric 
designations assigned after audiometric evaluations are 
rendered."  Lendenmann, 3 Vet. App. at 349.  Here, the 
mechanical application clearly establishes a 20 percent 
rating for the Veteran's bilateral hearing loss disability 
from September 19, 2008.  

For the reasons and bases, the Board finds that the evidence 
supports a 20 percent rating for the Veteran's service- 
connected bilateral hearing loss, but that the preponderance 
of the evidence is against a disability rating higher than 20 
percent.  The appeal is granted to this extent only.  

Further, although it is possible to assign an extra-schedular 
evaluation, the Board finds no reason to refer the case to 
the Compensation and Pension Service to consider whether it 
is warranted.  In this case, there is no evidence of any 
hospitalization associated with the disability in question.   
In addition, the Board finds no evidence that the Veteran's 
disability markedly interferes with his ability to `work 
above and beyond that contemplated by his separate schedular 
ratings.  See 38 C.F.R. § 4.1 (indicating that generally, the 
degrees of disability specified in the Rating Schedule are 
considered adequate to compensate for considerable loss of 
working time from exacerbations or illnesses proportionate to 
the severity of the several grades of disability).  


ORDER

Service connection for a sleep disorder, fatigue, and sleep 
apnea, diagnosed as obstructive sleep apnea, is denied.  

Service connection for vertigo is granted.  

Entitlement to a rating in excess of 10 percent for 
polyarthralgias is denied.  

Entitlement to a rating in excess of 10 percent for multi-
focal tremors is denied.  

Entitlement to a rating in excess of 10 percent for irritable 
bowel syndrome is denied.  

Entitlement to an initial compensable rating for bilateral 
hearing loss prior to September 19, 2008 is denied.  

A 20 percent rating is granted for bilateral hearing loss 
from September 19, 2008, subject to the laws and regulations 
governing the payment VA compensation.  


REMAND

The law provides that VA shall make reasonable efforts to 
notify a claimant of the evidence necessary to substantiate a 
claim and requires VA to assist a claimant in obtaining that 
evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. 
§ 3.159 (2009).  Such assistance includes providing the 
claimant a medical examination or obtaining a medical opinion 
when such an examination or opinion is necessary to make a 
decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 
38 C.F.R. § 3.159 (2009).  

A.  S/C respiratory disorder, including asthma.

Concerning the Veteran's claim for a respiratory disorder, 
claimed as asthma, he maintains that he developed problems 
due to exposure to oil field fires and breathing in smoke 
from the oil fields.  The Veteran indicated that, while in 
the gulf, he had a constant cough because he was just 
breathing the oil field smoke and he would have associated 
wheezing.  

The service treatment records show that at discharge, in July 
1993, the Veteran reported occasional pleuritic chest pain at 
rest; however, clinical evaluation of the chest and lungs 
were normal, and a chest x-ray was normal.  

Following separation from active service, VA and private 
medical records include clinical findings of asthma diagnosed 
in May 2005.  During a VA gulf war examination in April 2007, 
it was noted that the Veteran had a respiratory condition by 
history, but he had normal chest x-ray and pulmonary function 
test was normal.  It was noted that his claim was not 
supported by any objective medical evidence to substantiate 
chronic illness.  However, on the occasion of a subsequent VA 
examination, in September 2008, the Veteran was diagnosed 
with asthma, associated with coughing and breathing 
difficulty.  

Although the examiner diagnosed asthma, the examiner did not 
express whether it was at least as likely as not that any 
respiratory disorder, including asthma, was causally related 
to active service.  Because of the in-service and post-
service complaints and treatment documented in the record, 
the Board finds that another examination is required in order 
to address the etiology of the Veteran's respiratory 
disorder.  See McClendon v. Nicholson, 20 Vet. App. 79 
(2006).   

B.  S/C for an acquired psychiatric disorder, including PTSD 
and depression.

The Veteran indicated that he developed PTSD as a result of 
incidents which occurred while on active duty in the Persian 
Gulf.  The Veteran indicates that he was assigned to the HHC 
4th Brigade, 1st Armor Division and his unit was stationed 
near Khamisiyah, Iraq.  The Veteran stated that in early 
March 1991, rockets were destroyed in the pit near 
Khamisiyah, and nerve agents were released into the air.  The 
Veteran recalled almost being killed when his platoon 
sergeant placed him outside the perimeter to perform guard 
duty; he was almost the subject of friendly fire because he 
was put in the wrong area (on the enemy side).  He also 
recalled picking up body parts from dead Iraqi solders and 
seeing others burned alive inside their vehicles.  The 
Veteran indicates that, as a result of his experiences in 
Iraq, he suffers from depression, panic attacks, 
irritability, anger outbursts, anxiety and mood changes.  
Verification of the purported stressor event is warranted.  

The claims folder contains competent evidence reflecting that 
the Veteran has a psychological disorder variously 
characterized as PTSD and depression.  During a clinical 
visit in April 2006, the Veteran indicated that he was not 
sleeping well; he was dreaming about the war.  The assessment 
was PTSD.  

The record also indicates that the Veteran's psychological 
disabilities may be associated with active service. The 
service treatment records indicate that at his separation 
examination in October 1989, he was seen for a mental 
evaluation.  He was diagnosed with mild depression.  He was 
also diagnosed with occupational stress.  Thus, it is 
conceivable that the Veteran's psychological disabilities 
were manifested during service.  In view of this, the Veteran 
should be afforded a VA examination to identify his current, 
correct psychiatric diagnosis (es) and to specifically 
address whether any are related to service as detailed below.  
38 C.F.R. § 3.159(c) (4) (2009).  

C.  Increased rating for residuals, surgery, left great toe.  

The Veteran maintains that his left foot disorder is more 
disabling that reflected by the 20 percent rating currently 
assigned.  The Veteran maintains that his disability has 
worsened since his last examination.  The service 
representative notes that the most recent VA examination for 
the left great toe was performed over 5 years ago, and his 
disability has definitely worsened over the years.  The 
Veteran reports pain and swelling.  Whether an examination is 
sufficiently contemporaneous to properly rate the current 
severity of the veteran's disability depends on the 
particular circumstances of the individual case.  Snuffer v. 
Gober, 10 Vet. App. 400 (1997).  Therefore, the Veteran 
should undergo additional VA examinations of his left great 
toe in order to accurately assess the severity, 
symptomatology, and manifestations of his disability.  38 
U.S.C.A. § 5103A (d) (1); 38 C.F.R. § 3.159(c) (4).  

The Veteran must be advised of the importance of reporting to 
the scheduled examinations and of the possible adverse 
consequences, to include the denial of his claims, of failing 
to so report.  See 38 C.F.R. § 3.655 (2009).

In light of the discussion above, and to ensure full 
compliance with due process requirements, the case is hereby 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, D.C., for the following actions:  

1.  The RO should obtain the names and 
addresses of all medical care providers, 
VA as well as non-VA, who have treated 
the Veteran for his respiratory and 
psychiatric disorders since his 
separation from service.  After securing 
the necessary releases, the RO should 
obtain these records.  If the records are 
not available, a notation to that effect 
should be placed in the claims file and 
the Veteran notified of the problem.  

2.  Review the file in detail and prepare 
a summary of the Veteran's claimed 
stressors, including those discussed in 
the body of this remand.  The summary and 
all associated documents should be sent 
to U.S. Army and Joint Services Records 
Research Center (JSRRC), Kingman 
Building, Room 2C08, 7701 Telegraph Road 
Alexandria, VA 22315-3802.  JSRRC should 
be requested to provide any information 
that might corroborate the veteran's 
alleged in- service stressor.  

3.  The Veteran should also be afforded a 
VA psychiatric examination to determine 
the nature and likely etiology of any 
currently diagnosed psychiatric disorder.  
The claims folder should be made 
available to the examiner for review and 
all indicated testing should be 
conducted.  Based on the examination and 
review of the record, the examiner should 
identify all psychiatric impairment that 
is present and describe the nature of any 
that has been identified.  As to any 
psychiatric disorder diagnosed, the 
examiner should offer an opinion as to 
whether it is at least as likely as not 
that the condition is related to the 
Veteran's service.  If the examiner 
concludes that the veteran has PTSD, the 
examiner should further identify the 
stressor(s) considered to have caused the 
disorder.  The opinion should adequately 
summarize the relevant history and 
clinical findings, and provide 
explanations as to all medical 
conclusions rendered.  

4.  Schedule the Veteran for an 
appropriate VA examination to determine 
the nature and etiology of any current 
respiratory disability, claimed as 
asthma.  The claims folder and a copy of 
this REMAND must be made available to and 
reviewed by the examiner in conjunction 
with the examination.  All necessary 
diagnostic tests, if any, should be 
completed.  Following completion of the 
examination, the examiner should 
specifically comment as to whether the 
veteran currently has asthma.  Should it 
be determined that the Veteran does, in 
fact, have asthma, the examiner should 
provide an opinion as to whether it is at 
least as likely as not (a 50 percent 
probability or more) that it had its 
origin during active military service.  
The examiner should provide a complete 
rationale for any opinion provided.  

5.  The veteran should be scheduled for a 
VA examination to determine the current 
degree of left foot impairment.  The 
veteran's file must be made available for 
review by the examiner.  

a.) The examiner should comment whether 
the right foot disability is moderate, 
moderately severe or severe.  The 
examination should include a description 
of range of motion evaluations.  

b.) The examiner is asked to describe any 
additional functional loss due to pain 
(supported by adequate pathology and 
evidenced by the visible behavior of the 
claimant undertaking the motion) as well 
as weakness, excess fatigability, 
incoordination or pain on movement.  Any 
additional functional loss should be 
expressed in terms of additional 
limitation of motion.

c.) The examiner is asked to describe any 
additional functional loss during flare-
ups or exacerbations.  The additional 
functional loss should be expressed in 
terms of additional limitation of motion.  
If flare-ups or exacerbations can not be 
duplicated on examination, the examiner 
is asked to make a reasonable estimate.  

6.  To help avoid future remand, the RO 
must ensure that all requested actions 
have been accomplished (to the extent 
possible) in compliance with this REMAND.  
If any action is not undertaken, or is 
taken in a deficient manner, appropriate 
corrective action should be undertaken.  
See Stegall v. West, 11 Vet. App. 268 
(1998).  

7.  Thereafter, the RO should 
readjudicate the Veteran's claims on the 
basis of all evidence of record and all 
applicable laws and regulations.  If the 
benefits sought on appeal remain denied, 
the Veteran and his representative should 
be provided a supplemental statement of 
the case (SSOC), which includes a summary 
of additional evidence submitted, and any 
additional applicable laws and 
regulations.  The SSOC must provide 
reasons and bases for the decision 
reached.  Thereafter, the Veteran and his 
representative should be given the 
opportunity to respond.  

After the above actions have been accomplished, the case 
should be returned to the Board for further appellate 
consideration, if otherwise in order.  By this REMAND the 
Board intimates no opinion, either legal or factual, as to 
the ultimate determination warranted in this case.  The 
purposes of this REMAND are to further develop the record and 
to accord the Veteran due process of law.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs