Citation Nr: 1037592	
Decision Date: 10/05/10    Archive Date: 10/12/10

DOCKET NO.  06-28 227A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, 
Indiana


THE ISSUES

1.  Entitlement to service connection for a sinus/rhinitis 
disorder.

2.  Entitlement to service connection for a respiratory disorder, 
to include bronchitis and asthma.

3.  Entitlement to service connection for scars, right side of 
face and neck burns.

4.  Entitlement to service connection for deep vein thrombosis 
(DVT).

5.  Entitlement to service connection for a left hip disorder.

6.  Entitlement to a disability rating in excess of 10 percent 
for service-connected lumbosacral strain from October 6, 2006.

7.  Entitlement to a disability rating in excess of 20 percent 
for service-connected lumbosacral strain, with radiculopathy from 
December 7, 2007.

8.  Entitlement to a disability rating in excess of 40 percent 
for service-connected lumbosacral strain with radiculopathy from 
January 13, 2009.

9.  Entitlement to a disability rating in excess of 10 percent 
for service-connected residuals of left inguinal hernia from May 
1, 2000.

10.  Entitlement to a disability rating in excess of 30 percent 
for service-connected residuals of left inguinal hernia from June 
29, 2003.

11.  Entitlement to a disability rating in excess of 10 percent 
for service-connected left shoulder acromioclavicular (AC) joint 
arthritis with mild impingement from June 29, 2003.

12.  Entitlement to a disability rating in excess of 20 percent 
for service-connected left shoulder acromioclavicular (AC) joint 
arthritis with mild impingement from December 7, 2007.

13.  Entitlement to a disability rating in excess of 20 percent 
for service-connected post operative residuals of left varicocele 
with recurrent epididymitis.

14.  Entitlement to a disability rating in excess of 10 percent 
for radiculopathy of the left lower extremity.

15.  Entitlement to a disability rating in excess of 10 percent 
for service-connected gastroesophageal reflux disease (GERD).

16.  Entitlement to a disability rating in excess of 10 percent 
for service-connected pes planus.

17.  Entitlement to a compensable disability rating for service-
connected erectile dysfunction.

18.  Entitlement to an increased payment for special monthly 
compensation (SMC) for loss of use of a creative organ.


ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel


INTRODUCTION

The Veteran served on active duty from January 1984 to November 
1995 and from November 2001 to June 2003.  He had additional 
service in the U. S. Naval Reserve from 1995 to 2006.

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 Indianapolis, Indiana.  

The Veteran originally sought entitlement to service connection 
for a sinus disorder and bronchitis.  The issues were developed 
by the RO on that basis.  However, the evidence of record shows 
that the Veteran has received concurrent diagnoses of sinusitis 
and allergic rhinitis as well as bronchitis and asthma with 
evidence possibly linking the additional diagnoses to service.  
In light of the holding in Clemons v. Shinseki, 23 Vet. App. 1 
(2009), the Board has re-characterized the sinus and bronchitis 
issues as reflected on the title page.  

The Board notes that the Veteran has pursued service connected 
disability compensation for a number of other issues during the 
pendency of his current appeal.  In that regard, the claims 
folder reflects that he was issued a statement of the case (SOC) 
for nine issues in August 2009.  Those issues are entitlement to 
a disability rating in excess of 10 percent for service-connected 
residuals of injury of the right middle finger with pseudo-
boutonniere deformity, entitlement to a compensable disability 
rating for tinea pedis, service connection for various scars of 
the abdomen, groin and upper right thigh, PTSD, pulmonary emboli, 
residuals of a left hand injury involving the 5th finger, and 
cyst in the left testicle.  The issues also included whether new 
and material evidence had been received to reopen a claim for 
entitlement to service connection for an umbilical hernia and 
entitlement to a total disability evaluation based on individual 
unemployability (TDIU).

The Veteran's current appeal was certified to the Board by the 
agency of original jurisdiction (AOJ) in September 2009.  The 
Board notes that the Board's Veterans Appeals Control and Locator 
System (VACOLS) reflects that the Veteran appears to have 
perfected an appeal of the issues listed in the August 2009 SOC 
in October 2009.  However, the actual appeal is not of record and 
the issues have not been certified on appeal to the Board.  See 
38 C.F.R. § 19.36 (2009).  Thus, the Board does not have 
jurisdiction at this time to include the nine issues in its 
appellate review of the Veteran's pending appeal.

The Veteran is unrepresented at the current time.  A review of 
the claims folder reveals that the Veteran has had the benefit of 
representation by three different attorneys and three different 
veterans service organizations (VSOs) at various times during the 
pendency of his appeal.  The latest representation was by The 
American Legion.  That organization withdrew its representation 
of the Veteran in August 2009.  

The Veteran wrote to the President to request, in part, help in 
obtaining representation in his case in March 2010.  The Board 
wrote to the Veteran in June 2010.  He was provided information 
on how to obtain representation from an accredited VSO, from a 
private attorney, or from an agent.  The Board provided the same 
information in response to a query from the Veteran's 
Congressional representative in June 2010.  The Veteran responded 
in July 2010 that he would represent himself.  

As noted, the Veteran's appeal was certified to the Board in 
September 2009.  The Veteran has submitted additional statements 
and evidence directly to the Board since that time.  A statement 
was received in October 2009 wherein the Veteran expressed his 
contentions for why his disability ratings should be higher and 
why service connection should be granted.  The Veteran also 
included a signed statement wherein he waived any further review 
of his appeal by the RO.  

In December 2009 the Veteran submitted the names of several 
individuals he intended to have provide statements in support his 
claim as well as from his wife and ex-wife.  He also included 
letters from J. Kansal, M.D., dated in June and September 2009, 
respectively.  He said the evidence was submitted in support of 
his service connection claim involving DVT, bronchitis and 
sinusitis.  He also said that he waived agency of original 
jurisdiction (AOJ) of the evidence.

The actual statements were received later in December 2009.

The Veteran submitted additional evidence directly to the Board 
in March 2010.  The evidence consisted of VA medical records for 
the period from September 2009 to February 2010.  He again waived 
consideration by the AOJ.  

In August 2010 the Veteran submitted additional evidence 
consisting of a duplicate private record and new VA records dated 
in August 2010.  The records relate, in part, to evaluation of 
left foot pain and include x-ray reports for the left foot.  The 
other records are not pertinent to the issues on appeal.  The 
Veteran did not include a waiver of consideration by the AOJ for 
the relevant records.  Accordingly, the issue of a disability 
rating in excess of 10 percent for service connection pes planus 
will be remanded so that the AOJ can consider the new evidence in 
the first instance.

In November 2009, the Veteran, through his Congressional 
representative, inquired about the status of his claim for 
service connection for headaches.  The Board notified the Veteran 
that this issue was not on appeal to the Board and a copy of his 
correspondence was forwarded to the RO for them to review and 
contact the Veteran.  

Associated with the claims folder is a copy of a letter from the 
Veteran to VA's Office of General Counsel (OGC) dated in November 
2009.  It was date stamped as received at OGC in December 2009.  
The Veteran asked that VA stop any Privacy Act actions in regard 
to his query about the headache issue.  He noted that no decision 
had been issued and that searching for information was delaying 
the processing of his case.

The Veteran was originally granted service connection for 
postoperative residuals of a left inguinal hernia in June 1996.  
He was awarded a noncompensable disability rating.  The effective 
date for service connection was November 9, 1995.  The Veteran 
underwent surgery in March 2000.  He was granted a temporary 100 
percent rating from March 9, 2000, to April 30, 2000, and a 
residual noncompensable rating from May 1, 2000, in October 2000.  
In August 2002, the Veteran's rating for his hernia was increased 
to 10 percent from May 1, 2000.  The Veteran's disability rating 
was increased to 30 percent in August 2006.  The effective date 
of the increase was established as of June 29, 2003.

The Veteran was granted service connection for left lower 
extremity radiculopathy by way of a rating decision dated in 
August 2009.  The rating decision included a listing of all of 
the Veteran's service-connected and nonservice-connected 
disabilities.  In regard to his left hernia rating, the rating 
decision included only the last rating action, the award of a 30 
percent rating from June 29, 2003.  On remand, the AOJ must 
include the entire rating history for the Veteran's service-
connected left hernia disability on all future rating decision.  

The issues of service connection for a left hip disorder and 
ratings in excess of 20 percent for service connected left 
varicocele with recurrent epididymitis, 10 percent for pes planus 
and left lower extremity radiculopathy, and a compensable 
disability rating for erectile dysfunction are addressed in the 
REMAND portion of the decision below and are REMANDED to the 
agency of original jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran currently suffers from sinusitis and rhinitis, 
and there is a reasonable basis for attributing such disability 
to his active military service.

2.  The Veteran currently suffers from bronchial asthma, and 
there is a reasonable basis for attributing such disability to 
his active military service.

3.  The Veteran suffered a burn to the right side of his face 
(temporal area) during his active military service and there is 
current evidence of a burn scar related to that incident.

4.  The Veteran does not have a deep vein thrombosis that is 
related to his military service.

5.  Prior to December 7, 2007, the Veteran's lumbosacral strain 
disability was manifested by subjective complaints of pain, with 
x-ray and MRI evidence of degenerative disc disease (DDD), 
degenerative joint disease (DJD), and disc herniation.  He had 
forward flexion to at least 90 degrees and a combined range of 
motion of the thoracolumbar spine of 280 degrees in April 2004 
and 220 degrees in August 2007.  

6.  Prior to January 13, 2009, the Veteran's lumbosacral strain 
disability was manifested by subjective complaints of pain, with 
x-ray and MRI evidence of DDD, DJD, and disc herniation.  He had 
forward flexion to 60 degrees and a combined range of motion of 
the thoracolumbar spine of 160 degrees in September 2008.

7.  From January 13, 2009, the Veteran's lumbosacral strain 
disability is manifested by subjective complaints of pain, with 
x-ray evidence of DDD, DJD, and disc herniation.  He has forward 
flexion of 30 degrees.

8.  For the period May 1, 2000, to June 29, 2003, the Veteran's 
left inguinal hernia disability was manifested by subjective 
complaints of pain, recurrent surgical repair, with no evidence 
of recurrence during that time, or requirement to wear a truss.

9.  From June 29, 2003, the Veteran's left inguinal hernia 
disability is manifested by subjective complaints of pain, 
recurrent surgical repair, no evidence of recurrence.  

10.  For the period from June 29, 3003, to December 7, 2007, the 
Veteran's left shoulder AC joint arthritis with mild impingement 
was manifested by subjective complaints of pain, full range of 
motion, and x-ray evidence of arthritis and MRI evidence of a 
partial tear of the distal spinatus, a tear of the posterior 
superior glenoid labrum, and bicipital tenosynovitis.

11.  From December 7, 2007, the Veteran's left shoulder AC joint 
arthritis, with mild impingement, is manifested by complaints of 
pain, limitation of flexion and abduction to 90 degrees with pain 
and stiffness, and x-ray evidence of arthritis and MRI evidence 
of a partial tear of the distal spinatus, a tear of the posterior 
superior glenoid labrum, and bicipital tenosynovitis.

12.  For the period from June 29, 2003, to January 25, 2008, the 
Veteran's GERD disability was manifested by heartburn and 
regurgitation.

13.  For the period from January 25, 2008, the Veteran's GERD 
disability is manifested by dysphagia, heartburn, and 
regurgitation, accompanied by substernal pain productive of 
considerable impairment of health.

14.  The amount of SMC payable for loss of use of a creative 
organ is established by Congress and VA has no authority to pay 
SMC in excess of that amount.


CONCLUSIONS OF LAW

1.  The Veteran has sinusitis and rhinitis that were incurred in 
active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.303, 3.304 (2009).

2.  The Veteran has bronchial asthma that was incurred in active 
service.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 
3.303, 3.304.

3.  The Veteran has a burn scar of the right temporal area that 
was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5107; 
38 C.F.R. §§ 3.102, 3.303, 3.304.

4.  The Veteran does not have DVT that is the result of disease 
or injury incurred in or aggravated by active military service.  
38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 
3.304.

5.  The criteria for a rating in excess of 10 percent for the 
Veteran's lumbosacral strain for the period prior to December 7, 
2007, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 
38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Code 5237 (2009).

6.  The criteria for a rating in excess of 20 percent for the 
Veteran's lumbosacral strain for the period prior to January 13, 
2009, have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. 
§§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 
Code 5237.

7.  The criteria for a rating in excess of 40 percent for the 
Veteran's lumbosacral strain, after January 13, 2009, have not 
been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 
4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

8.  The criteria for a rating in excess of 10 percent for a left 
inguinal hernia prior to June 29, 2003, have not been met.  
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 
4.114, Diagnostic Code 7338 (2009).  

9.  The criteria for a rating in excess of 30 percent for a left 
inguinal hernia since June 29, 2003, have not been met.  
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 
4.114, Diagnostic Code 7338 (2009).  

10.  The criteria for a rating in excess of 10 percent for left 
shoulder AC joint arthritis, with mild impingement, for the 
period prior to December 7, 2007, have not been met.  38 U.S.C.A. 
§§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 
4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200-5203 (2009).

11.  The criteria for a rating in excess of 20 percent for left 
shoulder AC joint arthritis, with mild impingement, for the 
period from December 7, 2007, have not been met.  38 U.S.C.A. 
§§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 
4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200-5203.

12.  The criteria for a disability rating in excess of 10 percent 
for the Veteran's GERD, for the period prior to January 25, 2008, 
have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 
3.102, 3.321, 4.7, 4.114, Diagnostic Code 7346 (2009).

13.  The criteria for a 30 percent disability rating for the 
Veteran's GERD have been met from January 25, 2008.  38 U.S.C.A. 
§§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.114, Diagnostic 
Code 7346.

14.  Entitlement to an increased amount of special monthly 
compensation for loss of use of a creative organ is denied as a 
matter of law.  38 U.S.C.A. §§ 1114, 1155 (West 2002 & Supp. 
2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection
A.  Background

The Veteran served on active duty from January 1984 to November 
1995.  He had additional military service in the Naval Reserve 
from November 1995 until his retirement in 2006.  He was recalled 
to active duty for the period from November 2001 to June 2003.  
He later submitted a copy of his DD 214 for his latter period of 
active duty.  The dates were listed as from November 16, 2001, to 
June 28, 2003.  

The Veteran is seeking entitlement to service connection for a 
sinus/rhinitis disorder, a respiratory disorder, scars right side 
of the face and neck burns, DVT and a left hip disorder.  (The 
left hip disorder is discussed in the remand below.)

A review of his service treatment records (STRs) for his period 
of active duty from January 1984 to November 1995, and his Naval 
Reserve service, to include his period of recall from 2001 to 
2003, is negative for evidence of a DVT.  

The STRs to do show periodic treatment for sinus-related 
complaints to include colds, upper respiratory infections (URIs), 
and sinusitis.  The Veteran had sinus x-rays in August 1985 that 
confirmed acute left maxillary sinusitis.  He was treated for 
sinus headaches in January 1988.  In October 1988 he was treated 
for complaints related to seasonal hay fever.  In January 1991 he 
was treated for head and chest congestion.  The Veteran was 
diagnosed with pharyngitis; rule out URI and strep throat on June 
1992.  

In January 1993 the Veteran was seen for complaints of a cough 
and sore throat for three days.  The assessment was bronchitis.  
He was assigned to quarters for 24 hours.  An entry, dated two 
days later, noted that the bronchitis was resolving.  The Veteran 
completed a medical questionnaire for potential respirator users 
for his current shipboard assignment in April 1994.  He denied 
any lung disease, persistent cough or shortness of breath at the 
time.  

There is also an entry from March 1985 relating to his claim for 
burn scars.  The entry noted that the Veteran suffered a 1st 
degree burn to the right neck area after coffee was thrown at 
him.  The burn was described as to the head, posterior to the 
right pinna and down the right side of the neck to the upper 
right shoulder.  There were no follow-on entries for continued 
care.

The Veteran did not report any problems with his sinuses, or 
trouble breathing, DVTs, or residuals from his burn at the time 
of his separation physical examination in November 1995.  No 
findings involving any of those issues were made on the physical 
examination.  

The Reserve STRs contain annual certifications of physical 
condition where the Veteran is required to report his overall 
health status and include any changes during the year, to include 
hospitalizations.  The certifications cover the period from 1997-
2004 with exceptions for the years he was recalled to active 
duty.  For 1997 the Veteran said he said no injury/illness in the 
past 12 months.  Of record is an accident report from employer 
showing the Veteran was injured on the job in October 1997.  He 
had a muscle pull of the right leg and left ankle injury.  The 
annual report for 1998 was missing.  The Veteran reported no 
changes for 1999 and 2000.  In 2001 he reported that he was 
treated for a double hernia and excision of a lipoma on the left 
abdomen wall.  He was on active duty in 2002 and his reports for 
2003 and 2004 were negative.

STR clinical entries showed he was diagnosed with inguinal and 
umbilical hernias in April 2000.  A Dr. K. J. diagnosed the 
Veteran with coughing secondary to postnasal drip and possible 
hay fever in May 2002.  A lipoma on the right side of the abdomen 
was noted in June 2002.  The Veteran was also noted to have left 
shoulder pain for three months, pain in the 5th digit of the left 
hand, pain in the groin that was felt to be related to hernia 
surgery and epididymitis in June 2003.  A final entry noted that 
the Veteran was seen on a drill weekend in September 2003.  He 
was assessed as having Eustachian tube dysfunction.  

The Veteran had a periodic physical examination in December 1996.  
He made no report of the claimed disorders on his Report of 
Medical History and none was found on examination.  The examiner 
did note that the Veteran took over-the-counter (OTC) cold 
medications as needed.  The Veteran completed a Report of Medical 
History in May 2002.  He reported that he was taking Robitussin 
and Zyrtec as his current medications.  He reported "no" to 
having or ever having had bronchitis, shortness of breath, 
sinusitis, hay fever or frequent colds.  He also reported that he 
did not have any problems with swollen or painful joints.  

A June 2003 Report of Medical Assessment, done as part of the 
Veteran's separation processing, did not record any complaints 
related to the claimed issues.  

Records from the Veteran's employer, U.S. Steel (USS) Family 
Medical Center (FMC) for the period from July 2003 to August 2003 
were received.  The records related to evaluations of complaints 
of left-sided chest pain and eye complaints.  

Associated with the claims folder were VA records for the period 
from June 2003 to August 2004.  They did not include any 
treatment for the claimed conditions.  Additional VA records, for 
the period from March 2004 to March 2006 were negative for 
records relating to the claimed conditions.  

The Veteran submitted a treatment entry from USS FMC dated in 
March 2006.  It reported treatment for right otitis media and 
acute bronchitis.

The Veteran submitted his claim for service connection for DVT in 
September 2006.  He said that, while in the Naval Reserve, he was 
required to complete two-week periods of active duty.  He was 
also required to fly on airplanes to his duty.  He provided 
details on several flights he said he had made.  He said he was 
never warned about the possibility that he could develop blood 
clots later in life as a result of his having flown in airplanes.  
He said he was basing his claim for service connection after 
having read a health tip from his employer on the internet.  

The Veteran provided a one-page medical record from The Methodist 
Hospital (TMH) that was dated in August 2006.  The Veteran had 
been inpatient from August 23, 2006, to August 31, 2006.  The 
reason for hospitalization was not given but it apparently was 
for his DVT.  The Veteran was given a prescription for Coumadin.  
The record also indicated that he was discharged with no 
restrictions to activity or ambulation.  

The Veteran also included generic material about DVTs that were 
printed from sites on the internet.  The material discussed how 
DVTs can form as a result of immobility while flying in an 
airplane.  This was not the only possible etiology listed.  

The Veteran submitted a letter from United Airlines and a copy of 
an STR entry from February 1985 in support of his claim for 
service connection for DVT.  The STR entry was a surgical health 
questionnaire.  The Veteran's main complaint was that he had left 
side pain.  There were several conditions listed with an option 
for a "yes" or "no" answer as to whether the Veteran had one 
of the conditions.  The only "yes" answer was to circulation or 
leg problems.  

The STRs do not reflect any evidence of a circulation problem.  
The Veteran was thoroughly evaluated in January and February 1985 
for complaints of pain in the groin and scrotum.  No evidence of 
any type of circulation problem is contained in the STRs for that 
time or as a history of problems in any later records.

The letter from United was in response to a complaint from the 
Veteran.  It is apparent that he had expressed concern over his 
development of a DVT as the response provides a general 
discussion about how DVTs develop.  The response specifically 
noted that the evidence suggested that any link between DVT and 
air travel mainly affected those who already had additional risk 
factors such as obesity, a history of venous thrombosis, or 
hormone treatment.  

The Veteran submitted a claim for a sinus disorder, bronchitis 
and pneumonia in January 2007.  He said he had a history of sinus 
congestion while on active duty from January 1984 to November 
1995 and from November 2001 to June 2003, and while in the Naval 
Reserve from December 1995 to August 2006.  He related one 
instance while performing physical training at his Reserve center 
in the rain he became sick and was told he had pneumonia.  

He also included copies of records from USS FMC for the period 
from August 2006 to January 2007.  The records noted instances of 
treatment for pneumonia in January 2007, acute bronchitis in 
August 2006, acute sinusitis in November 2006, and coughing in 
November 2006.  There was also an Instruction to Patient record 
from TMH dated in November 1998.  The Veteran was treated for 
left lower lobe pneumonia at that time.  The Veteran included a 
return to work slip that noted he was off from work from December 
30, 2006, to January 5, 2007.  The basis for why he was off from 
work was not noted on the slip.  However, a later submission from 
the Veteran in January 2007 indicated he was off because of 
pneumonia.

The Veteran submitted his claim for entitlement to service 
connection for scars, right side of the face and neck burns, in 
January 2007.  He included a duplicate copy of the STR entry from 
March 1985.  

The Veteran submitted a statement in support of his sinus 
disorder claim in February 2007.  He noted that he was exposed to 
paint fumes in several of his military assignments while on 
active duty.  

Associated with the claims folder is a Report of Contact of a 
conversation with the Veteran by an employee of the RO in 
February 2007.  The note indicates that the Veteran was not going 
to pursue a claim for service connection for pneumonia.

The Veteran submitted a treatment record from J. K. Kansal, M.D. 
that was dated in February 2007.  Dr. Kansal was listed as an 
allergy and immunology specialist.  The record reflected the 
results of scratch tests done to assess the status of the 
Veteran's allergic reaction to different allergens.  There is 
also a prescription for Prednisone from Dr. Kansal.

Records from USS FMC for the period from November 1998 to 
December 2006 were received in February 2007.  The records detail 
treatment provided to the Veteran for bronchitis, URIs, 
sinusitis, and rhinitis at various times.  The record documents 
such treatment from 1998 to April 2001 and then again after the 
Veteran completed his active duty, from November 2003 to December 
2006.

The Veteran was seen for left leg pain at USS FMC in February 
2007.  A venous Doppler test was ordered.

The Veteran responded to a notice letter in February 2007.  He 
submitted a duplicate copy of the STR entry from February 1985 
that noted a complaint of pain in the left side and an 
affirmative response to the question of having a circulation or 
leg problem.  He pointed to this entry to support his contention 
that the problem had been present since that time.  

This entry was previously submitted by the Veteran and it was 
noted that the follow-on entries related the complaint to his 
hernia.  Moreover, there was no indication of any type of 
circulation problem in service.

Additional records were received from Dr. Kansal in March 2007.  
They included the results of several PFTs done in February 2007.  
Two of the tests were interpreted to show early signs of small 
airways obstruction.  The third, and most recent test, was said 
to show normal lung function.

Records from TMH for the period from November 1998 to January 
2007 were received in February 2007.  The records include the 
results of a Doppler venous ultrasound of the left lower 
extremity.  The results showed an acute DVT involving the left 
posterior tibial and the popliteal veins.  

Also included was a history and physical for his period of 
hospitalization at TMH for a week in August 2006.  The history 
and physical noted that the Veteran was seen for a preoperative 
history for upcoming surgery for his left shoulder on August 22, 
2006.  The Veteran reported that his left leg had been "giving 
him trouble" for the past 2 1/2 weeks.  It was noted that the 
Veteran was referred for the Doppler study which showed the DVT.  
The Veteran gave a history of flying from Miami to Chicago on 
August 7, 2006.  He noted pain in his left leg the next day.  He 
did not report the problem to medical personnel until pre-
surgical screening.  The Veteran was admitted for treatment.

Records from N. Ahmed, M.D., were received in March 2007.  Most 
were duplicates of records previously submitted.  The Veteran was 
seen for a complaint of pain in the left side that was said to be 
due to groin, hip bone, or leg, or circulation in the left leg in 
December 2006  This resulted in MRI and x-ray studies of the left 
hip that same month.

The Veteran submitted information regarding his class attendance 
in February 2007.  He reported that he was going to classes twice 
a week and had tutoring at least twice a week.  He noted that he 
traveled to his university four times a week.

Records from Advance Pain Management & Anesthesiology (APMA) for 
the period from February 2007 to May 2007 were received in May 
and June 2007.  The records related primarily to treatment 
provided for the Veteran's service-connected back disability.  

The Veteran was afforded a VA examination in August 2007.  In 
regard to his respiratory claim, the Veteran did not recall 
having problems with asthma or bronchitis as a child.  He said he 
developed bronchitis in the Navy in 1987.  He said he developed a 
cold with symptoms of wheezing, cough, chest congestion and 
shortness of breath.  He said he was given an Albuterol inhaler 
multiple times in service and treated with antibiotics on a 
number of occasions.  He said he had seen private doctors for his 
asthma and had been using Advair twice a day and Albuterol as 
needed since April 2006.  The Veteran also said he had perennial 
allergic rhinitis that was confirmed by skin testing at his 
private doctors within the past year.  He was on allergy 
immunotherapy regularly now for chronic nasal congestion, clear 
rhinorrhea, sneezing, postnasal drip and recurrent sinusitis.  He 
said he began having these problems for the first time while in 
the Navy.  The Veteran said he received antibiotics 3-4 times a 
year for sinusitis but continued to have persistent symptoms.  

The Veteran was diagnosed with mild bronchitis but did not have a 
PFT.  He was also diagnosed with perennial allergic rhinitis but 
no sinusitis at the time of the examination.  

The Veteran was afforded a VA examination to assess a claim 
related to headaches in August 2007.  The Veteran reported a 
history of very frequent headaches, frontal in location.  They 
were described as a pressure and fullness in his head above the 
eyes.  He said a doctor suggested they were related to his 
sinuses.  He began to take loratadine and antihistamines and this 
helped.  The diagnosis was headache disorder.  The examiner said 
the Veteran seemed to describe an association between activity of 
his sinusitis and his headaches.  The examiner added that it 
could be said that the Veteran's head discomfort or head pressure 
was likely to be related to his sinusitis and not a separate 
etiology.  He said the headaches did not appear consistent with 
classical migraines or tension-type headaches.

VA treatment records for the period from June 2003 to September 
2007 reflect that the Veteran was evaluated for complaints of 
left hip pain in January 2007.  A MRI of April 2007 was 
interpreted to show mild degenerative joint disease.  

The Veteran was denied service connection for left hip pain, DVT 
and a sinus disorder by way of a rating decision dated in 
September 2007.  A decision on his claims involving a respiratory 
disorder and his claimed burn scar was deferred.  

The Veteran submitted records from TMH for a period of 
hospitalization in November 2007.  The Veteran was hospitalized 
for pulmonary emboli.  A chest x-ray was interpreted to show no 
evidence of acute pneumonia or congestive heart failure.  Linear 
opacities seen in the right lower lobe were said to suggest 
subsegmental atelectasis or scarring in the right lower lobe.  A 
venous Doppler study of both lower extremities was unremarkable 
for the right leg.  There were findings indicative of acute DVT 
of the left popliteal vein and compared with a previous 
examination of February 2007, there was an interval appearance of 
a new DVT of the left popliteal vein.  A pulmonary consult noted 
the Veteran's history of DVT.  

The Veteran submitted his notice of disagreement (NOD) with the 
denial of service connection for a sinus disorder, left hip 
disorder and DVT in November 2007.  

The Veteran was afforded a VA examination in October 2007 that 
evaluated his several scars.  In particular, the Veteran related 
having a scar on his face after a pot of coffee was thrown at 
him.  The examiner noted a scar on the left temporal face that 
was 14-centimeters (cm) by 6-cm and described as hyperpigmented 
macule.  The examiner said there was normal texture of the skin 
with no adherence to underlying tissue, atrophy, ulceration or 
breakdown of skin.  There was no elevation or depression of the 
surface, or underlying soft tissue damage, inflammation, edema, 
or keloid formation.  He also said there was no induration or 
inflexibility of the skin near the scars, no pain or limitation 
of motion due to the scars and no disfigurement.  

The Veteran was afforded a second VA examination also in October 
2007.  The examination related to the Veteran's facial scar and 
respiratory claims.  The claimed burn scar was on the right side 
of the face and neck.  This occurred in 1985 when the Veteran was 
scalded with a pot of hot coffee in the right side of his face.  
The examiner noted that the Veteran was seen at the time and 
diagnosed with a first degree burn of the right temple.  No 
surgery or skin grafting was required and the Veteran was treated 
conservatively.  The scar over the right side of the neck has 
faded and is essentially gone at the present time.  The Veteran 
did retain a small scar over the right temple.  The examiner said 
the Veteran reported that scar became hyperpigmented and 
irritated upon exposure to the sun especially during warm months.  
The Veteran would use sunscreen for protection.  The Veteran also 
said he had similar symptoms when exposed to cold.  The examiner 
said that, although the scar was small, it was prominent and the 
Veteran had concerns about the cosmetics of the injury.

In regard to bronchitis the Veteran said his problem began with 
the onset of acute bronchitis in January 1993.  A diagnosis of 
acute bronchitis was made and erythromycin was prescribed.  The 
Veteran had a complete recovery and remained asymptomatic until 
he had an attack similar in nature in 1998.  At that time, he was 
diagnosed with pneumonia.  He again recovered to normal and had 
identical types of attacks in March 2006 and 2007, both times 
with the diagnosis of pneumonia.  The Veteran had a battery of 
allergic skin testing done in March 2007 and was found to be 
strongly positive for airborne pollens and allergens.  He had 
been having weekly desensitization shots from his allergist.  The 
examiner noted that the Veteran had pulmonary function testing 
and a chest x-ray in September 2006 and was diagnosed as having 
allergic asthma.  Since then he had been treated with Advair on 
an as-needed basis.  The Veteran had had two short courses of 
prednisone that lasted for 5 days during flare-ups.  Between the 
attacks, the Veteran returned to normal.  

Physical examination showed a scar on the right temple that 
measured 1.5-cm by .4-cm.  The scar was slightly hyperpigmented.  
The skin texture was normal.  There was no elevation or 
depression of the surface, or underlying soft tissue damage, 
inflammation, edema, or keloid formation.  He also said there was 
no induration or inflexibility of the skin near the scar, or 
limitation of movement due to the scar.  The examiner said the 
there was no visible scar on the lower aspect of the right neck 
and cervical area.  There was no discoloration.  The final 
diagnosis was burn scar of the right temple with residual 
symptoms as described.  The examiner said that, since there was 
no disfigurement, no color photographs were requested.  

The examiner said the Veteran currently had a diagnosis of 
bronchial asthma on an allergic basis.  There was no clinical 
evidence that the Veteran's recurrent allergic bronchitis and 
pneumonitis, which began in 1998, were causally related in any 
way to the acute bronchitis attack that occurred in 1993.  The 
rationale was that allergic bronchitis was due to an allergen and 
the acute bronchitis was most likely due to an infectious agent.  
The examiner cited to the results of a PFT that the examiner said 
appeared normal.  

The RO denied the Veteran's claim for service connection for a 
respiratory disorder and scars, right side of face and neck burns 
in January 2008.

The Veteran submitted a claim for a TDIU rating in February 2008.  
He said he had been released from his current employment after 
being hospitalized for a blood clot in his left leg that migrated 
to his lungs.  He said his employer believed that, with his 
combined disabilities and having to take specific medications, he 
would be unable to continue to work.  He did not provide any 
evidence to support his contention or to show he had been placed 
on any work restriction.

In another statement received from the Veteran in February 2008 
he asked for a higher rating for his recently service-connected 
tinea pedis.  He said that he had split his left great toe nail 
and that it would constantly bleed because of his use of 
anticoagulants.  He noted that his job required him to walk up 
and down stairs in all weather.  He said his feet would get wet 
and he would have to wrap up his left big toe.

Associated with the claims folder were VA treatment records for 
the period October 2007 to February 2008.  Of note is a November 
15, 2007, clinic entry that recorded a report from a radiologist 
in regard to a CT from November 14, 2007, that showed findings 
suggestive of pulmonary emboli.  This was communicated to the 
Veteran and this led to his hospitalization at TMH in November 
2007.  A mental health clinic note from December 2007 shows that 
the Veteran said his main stressors were medical issues.  He 
identified them as leg weakness and numbness that affected his 
current job.  He said he could not stand or sit for long periods 
due to pain/weakness of the "right" leg.  The Veteran said he 
felt he could not work his current job due to the medical issues 
that exacerbated his pain/numbness.  A pharmacy note from 
December 2007 noted that the Veteran reported he may not be 
allowed to return to work due to risk of falls.  

A second mental health note from December 2007 shows that the 
Veteran said he had received information that he was not able to 
work due to his cardiac status, frequent dizziness and falls.  He 
had received a check for being off work.  He pointed out that he 
was not able to sit or stand for long periods of time at work.  A 
neurology clinic note from December 2007 noted the Veteran's 
complaints of left leg pain.  A January 2008 mental health note 
recorded that the Veteran said he had to quit his job due to 
medical issues.  He said he had filed for disability from the 
Social Security Administration (SSA).  

The Veteran wrote to his senator in March 2008.  In his 
correspondence he expressed his disagreement with the denial of 
service connection for the burn scar on the neck and face and 
service connection for a respiratory disorder.  The senator 
forwarded the Veteran's correspondence to the RO in March 2008.  
The RO acknowledged the Veteran's submission of a NOD as to the 
two issues that same month.  

Associated with the claims folder are treatment records from 
Internal Medicine Associates, S. Harig, M.D., for the period 
November 2007 to February 2008.  Dr. Harig saw the Veteran on his 
admission to TMH for his pulmonary emboli in November 2007.  She 
said that a CT scan had showed a clot in the left lower lobe, 
pulmonary artery.  She also noted that the Veteran "does sit at 
work and really does not get up and move a lot."  She said he 
was otherwise in good health.  An entry from December 17, 2007, 
noted that the Veteran was seen for a checkup.  He had tried to 
go back to work but the mill doctor had done an exertional 
oximetry on him and the Veteran had dropped oxygen saturation.  
Dr. Harig said the mill doctor was concerned because of the 
Veteran's other medical problems, to include his back, for him to 
return to work.  She noted that the Veteran would be seen again 
in 2-3 weeks.  He was going to see a "back" doctor and would be 
re-checked by her for a return to work at that time.  The Veteran 
was seen again in January 2008.  He was said to be doing pretty 
well and not having any difficulty with walking or exertion.  

The Veteran underwent a CT pulmonary angiogram, inferior vena 
cavagram, and bilateral lower extremity venogram in January 2008.  
The impression was no evidence of pulmonary embolism or lower 
extremity DVT and no pulmonary infiltrate.  A treatment entry 
from February 2008 noted that the Veteran had been diagnosed with 
sleep apnea.  Dr. Harig said she was going to release him back to 
work and see him in two months.  

The Veteran's employer submitted a VA Form 21-4192, Request for 
Employment Information in Connection With a Claim for Disability 
Benefits, in April 2008.  The form noted that the Veteran had 
worked for the company since June 1996.  He was employed in 
production as a laborer.  He worked a 40-hour shift of 8 hours a 
day.  He was noted to have lost time from work in the previous 12 
months--August 23, 2006, to September 7, 2006, and from December 
30, 2006, to January 9, 2007.  His most recent period of 
disability was as of November 14, 2007.  He was noted to be 
receiving sick benefits.  

The Veteran submitted a statement that was received in June 2008.  
He said that he was unable to go back to work because of 
restrictions related to his hospitalization for his blood clot.  
He said he was under work restrictions.  He provided a release 
for records related to his left shoulder.  He included a note 
signed by a physician at USS FMC that authorized the Veteran's 
return to work, with no restrictions, on April 10, 2008.  He also 
submitted the report for a left lower extremity Doppler venous 
ultrasound that found no evidence of a DVT in the left lower 
extremity.

Associated with the claims folder are VA treatment records for 
the period from May 2008 to December 2008.  The records reflect 
that the Veteran was back at work since April 2008.  He was 
working full time.  He also reported a problem with a co-worker 
and said he was made to work 16-hour shifts because he felt his 
employer was trying to get rid of him.  He was prescribed 
Neurontin for his left leg pain but could not take it until after 
work.  

The Veteran was afforded a VA examination in January 2009.  He 
reported no current cough or shortness of breath.  He said he 
took Advair for his asthma and had not had a recent exacerbation.  
He reported his last Prednisone taper was in November 2008.  The 
examiner said that the PFT done with his last examination was in 
the record.  The examiner also noted that the Veteran had 
allergic rhinitis that was diagnosed in May 2002 during service.  
The diagnoses were bronchial asthma and allergic rhinitis.

The Veteran was issued a statement of the case (SOC) that 
addressed the service connection issues as well as rating issues 
for the Veteran's back, pes planus, erectile dysfunction, and SMC 
in February 2009.  

The Veteran's Congressional representative forwarded a letter 
from the Veteran in March 2009.  The Veteran included an 
explanation of determination from SSA that appears to be dated in 
2008 based on the listed age of the Veteran.  In short, the 
determination was a denial of benefits.  The determination noted 
that the Veteran claimed that he was disabled because of four 
hernia operations, pes planus, postoperative varicocele, 
recurrent epididymitis, lumbosacral strain, tinea pedis, 
bronchitis, pulmonary embolism, blood clot in the leg, injury of 
middle finger, atrophied right testicle and GERD.  However, it 
was determined that the medical evidence demonstrated that he 
could still do work related activities.  It said that the 
Veteran's medical condition prevented him from returning to past 
jobs but did not prevent him for doing lighter work.  

The Veteran submitted an undated treatment record from Dr. Kansal 
in April 2009.  The Veteran was diagnosed with allergic rhinitis.  
Dr. Kansal added that the Veteran's STRs reflected that the first 
allergy symptoms started in May 2002 when the Veteran was treated 
with Zyrtec.  

The Veteran submitted a statement on a VA Form 9, Appeal to Board 
of Veterans' Appeals, in April 2009.  He stated that he agreed 
that the medical evidence did not reveal a visible scar on "the 
right neck and cervical neck area."  He contended that there was 
a visible scar on the right side of his face.  He said the scar 
had changed the skin color in that area to black.  He noted his 
September 1987 and November 1995 separation examinations had 
noted a scar on his cheek.  He said the summer months turned the 
scar very black.  He said this was ugly and that he would not 
take photographs because of the way it looked.  

The Veteran submitted a VA neurology clinic outpatient entry 
dated in May 2009.  He was seen for a complaint of left lower 
extremity pain that the examiner said appeared to be the result 
of a mixture of DJD of the spine and post-thrombophlebitic 
changes (two DVTs in that leg).  The examiner noted that the 
Veteran had an alternating work schedule.  It was described as 
working days for 6 days and then working 7 days from midnight to 
7.  The Veteran reported that he could not take his Neurontin on 
the night shifts.  The examiner also noted that the Veteran was 
diagnosed with obstructive sleep apnea.  The examiner said the 
Veteran may have common migraines and left lower extremity pain 
of unclear etiology, likely a mixture of DJD and past DVT.  

The examiner added that the Veteran's sleep/work schedule was 
detrimental to his health.  He said not only did sleep 
deprivation worsen the Veteran's headaches, so did the sleep 
apnea.  He added that, if the daily suppressive medications were 
to work, they needed regular use.  He said the Veteran should 
urge his employer to allow one schedule to be picked, days or 
nights, but not alternating.  He said there are but a few people 
without medical problems who can tolerate such disruption, let 
alone patients with medical illnesses as above.

Records from Dr. Kansal were received in July 2009.  The records 
covered a period from February 2007 to April 2009.  The initial 
visit of February 2007 noted a history of sinus headaches and 
congestion from 1987 when the Veteran was in service.  The 
Veteran was diagnosed with chronic recurrent sinusitis and 
allergic rhinitis.  He received several diagnoses of allergic 
rhinitis.  In March 2009 he was diagnosed with acute sinusitis.  
The Veteran also received a diagnosis of asthma and was 
prescribed several inhaler medications.  

The Veteran submitted a June 2009 statement from Dr. Kansal in 
August 2009.  Dr. Kansal said that the Veteran's allergy symptoms 
began in May 2002 while in the service.  He cited to a STR entry 
where the Veteran was seen for allergic rhinitis and prescribed 
Zyrtec.  He noted that he had first treated the Veteran in 
February 2007 for chronic sinusitis with sinus headaches.  He 
said the clinical impression was allergic rhinitis and allergic 
asthma.  He said that an allergy skin test confirmed the clinical 
diagnosis.  He said the Veteran continued to be treated for 
allergic rhinitis and allergic asthma.  

The RO issued a SSOC to the Veteran in August 2009.  The issues 
addressed were the five service connection issues as well as the 
ratings for his lumbosacral strain, pes planus, erectile 
dysfunction, and amount of SMC.  

The Veteran responded to the SSOC that same month.  He said that 
he waived the 30-day period to respond and asked that his case be 
certified to the Board.  

The RO certified the Veteran's case on appeal on September 15, 
2009.  The notice letter advised him that he had 90 days from the 
date of the letter, or until the Board issues a decision in the 
case, whichever would come first, to request a hearing, send the 
Board additional evidence, or to appoint a representative.  He 
was further advised that if he took any of the options after 90 
days, he would have to explain why his action was not timely.  He 
was instructed to not send any new evidence to the RO.  

The Board advised the Veteran that his case had been received at 
the Board on October 22, 2009.  The Board's letter advised the 
Veteran that the certification letter provided him important 
information regarding sending the Board new evidence, changing 
his representative, or requesting a hearing.  

As noted in the Introduction, the Veteran submitted additional 
evidence directly to the Board subsequent to the certification of 
his appeal.  In his October 2009 submission the Veteran cited to 
a report from the World Health Organization (WHO) that allegedly 
said that people that have recent surgery or trauma, particularly 
to the stomach, pelvic region, or legs are at risk for getting 
blood clots.  He said he had asked that the RO obtain a copy of 
the report.  He cited to evidence in the record that he believed 
supported his claim for service connection for a sinus disorder 
and bronchitis.  

The Veteran submitted two letters from Dr. Kansal.  The letter 
from June 2009 was duplicative of a prior submission.  In the 
letter of September 2009 Dr. Kansal said he had reviewed the 
Veteran's STRs from 1984 to 1995 and from 2001 to 2003.  He said 
the Veteran had symptoms of allergic rhinitis, sinusitis, and 
allergic bronchitis since 1985.  He said the Veteran was treated 
several times with antihistamine, decongestant, and antibiotics 
in service.  Dr. Kansal opined that the Veteran's allergy 
symptoms started while in service.  He said there was a 
likelihood of "90%."

The several lay statements received in December 2009 included 
three from fellow Reservists who served with the Veteran from 
2001 to 2003.  One individual, D.B. said they went through 
rigorous training with a 12-gauge shot gun and were shot with 
paint ball pellets during security training.  He said the Veteran 
was shot in the left side and fell and sustained an injury - he 
did not identify what type of injury.  A statement from E.B., 
also noted service with the Veteran.  He noted the same security 
training and that the Veteran complained of being shot in the 
side.  He did not witness this or identify any injury suffered by 
the Veteran.  The third statement was from A.C.  A.C. said that 
paint balls were not used in the training; however, they were 
shot with plastic pellets fired from a 9-millimeter pistol.  He 
said the pellets stung and, some cases, left noticeable welts.  
He said everyone got shot and this was in plain view of everyone 
in the area.  The other information was not relevant to the 
Veteran's claim.  

The Veteran also submitted a statement from A.P.  Ms. P. was not 
on active duty with him but knew him from the Naval Reserve 
Center.  She said the Veteran was mobilized after September 11, 
2001.  She recalled receiving e-mails from him and that he 
constantly complained about being shot with a paint ball gun and 
that he fell on the firing range.  She said this complaint went 
on for years after he returned from recall.  She also said that 
she recalled the Veteran was diagnosed with pneumonia after one 
drill weekend.  They had conducted their physical activity in the 
rain that weekend.  She also said she recalled the Veteran taking 
OTC medication when his nose would run and that he would sneeze a 
lot on drill weekends.

The Veteran's ex-wife, A.M.A, said that the Veteran was diagnosed 
with bronchitis while stationed in Spain.  She said he constantly 
purchased OTC medications while they were married.  He complained 
of sore throat, sneezing and coughing.  

The Veteran's wife also submitted a statement that was dated in 
November 2009.  She noted that the Veteran had called her to tell 
her about the incident where he was shot in the left side with a 
paint ball gun and that he fell to the ground.  She said that he 
constantly complained of left leg pain.  She said the Veteran 
tried to return to work after his second blood clot but was told 
he had "too many service connected injuries."  She said he was 
told that he could fall and bump his head while working evening 
and mid-shifts alone while on Coumadin.  She said he continued to 
buy OTC medications for allergies, sinus problems, and 
bronchitis.  She said the Veteran received weekly allergy shots.  

The VA treatment records for the period from September 2009 to 
February 2010 did not include any evidence relevant to the 
service connection issues.  

In a July 2010 submission to his Congressional representative, 
the Veteran said he was in the "process" of quitting his job.  
He said he could not continue working with his service-connected 
injuries.  He said he had had two blood clots in his left leg and 
one pulmonary embolus.  He said he could not continue working 
with his left leg pain.  

The VA medical records, and the private MRI report, submitted in 
August 2010 are not relevant to the service connection issues.

B.  Analysis

The law provides that service connection may be granted for 
disability resulting from disease or injury incurred in or 
aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 
38 C.F.R. §§ 3.303, 3.304 (2009).  Service connection may be 
granted for any disease diagnosed after discharge when all the 
evidence, including that pertinent to service, establishes that 
the disease was incurred in service.  38 C.F.R. § 3.303(d).

In the alternative, the chronicity provisions of 38 C.F.R. § 
3.303(b) 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.  Such evidence must be medical unless it relates to a 
condition as to which under case law of the United States Court 
of Appeals for Veterans Claims (Court) or the United States Court 
of Appeals for the Federal Circuit (Federal Circuit), lay 
observation is competent.  

Continuity of symptomatology may be established if a claimant can 
demonstrate (1) that a condition was "noted" during service; (2) 
evidence of post-service continuity of the same symptomatology; 
and (3) medical or, in certain circumstances, lay evidence of a 
nexus between the present disability and the post-service 
symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).

The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) 
as "a person who served in the active military, naval, or air 
service, and who was discharged or released therefrom under 
conditions other than dishonorable."  The term "active military, 
naval, or air service" includes active duty, and "any period of 
active duty for training during which the individual concerned 
was disabled or died from a disease or injury incurred or 
aggravated in line of duty, and any period of inactive duty 
training during which the individual concerned was disabled or 
died from an injury incurred or aggravated in line of duty."  38 
U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2009); see 
Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991).  

Active duty is defined as full-time duty in the Armed Forces, 
other than active duty for training.  See 38 U.S.C.A. 
§ 101(21)(A) (West 2002).  Active duty for training (ACDUTRA) is 
defined, in part, as "full-time duty in the Armed Forces 
performed by Reserves for training purposes."  38 U.S.C.A. 
§ 101(22)(A) (West 2002); 38 C.F.R. § 3.6(c) (2009).  The term 
"Reserve" means a member of a reserve component of the Armed 
Forces.  38 U.S.C.A. § 101(26).  The term "reserve component" 
includes, inter alia, the Naval Reserve.  38 U.S.C.A. 
§ 101(27)(B).  

As noted, the term "active military, naval, or air service" 
includes active duty.  It also includes "any period of active 
duty for training during which the individual concerned was 
disabled or died from a disease or injury incurred or aggravated 
in line of duty, and any period of inactive duty training during 
which the individual concerned was disabled or died from an 
injury incurred or aggravated in line of duty."  38 U.S.C.A. § 
101(24) (West 2002); 38 C.F.R. § 3.6(a) (2009).  See McManaway v. 
West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. 
466, 469-70, for the proposition that, "if a claim relates to 
period of [ACDUTRA], a disability must have manifested itself 
during that period; otherwise, the period does not qualify as 
active military service and claimant does not achieve veteran 
status for purposes of that claim.").  

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.  Hickson v. West, 12 Vet. App. 247, 253 (1999); accord 
Caluza v. Brown, 7 Vet. App. 498 (1995).

Sinus/Rhinitis and Respiratory Disorder

The Veteran's STRs, particularly for his periods of active duty 
from January 1984 to November 1995 and from November 2001 to June 
2003 provide evidence of treatment for sinusitis, rhinitis, and 
bronchitis.  The Veteran has alleged a continuity of 
symptomatology in his many statements.  He has provided lay 
statements from his ex-wife and current wife about his symptoms 
and use of OTC medications to treat his symptoms.  His STRs 
contain a notation on a medical history form from 1996 that the 
Veteran used OTC medications.

The records from USS FMC for the period from 1998 to 2006, with a 
gap for the years of active duty 2001-2003, also document 
treatment for bronchitis, URIs, sinusitis and rhinitis.  

Dr. Kansal has provided two opinions in support of the Veteran's 
claim.  In June 2009 he noted that the Veteran was treated for 
allergic rhinitis on active duty in May 2002.  He said that the 
Veteran's symptoms began at that time.  Dr. Kansal provided a 
second statement in September 2009 wherein he indicated a review 
of the Veteran's STRs for his periods of active duty.  He said 
the Veteran had symptoms of allergic rhinitis, sinusitis and 
allergic bronchitis since 1985.  He opined, with"90%" 
likelihood, that the Veteran's allergy symptoms started during 
service.  

In addition to his medical opinions, Dr. Kansal noted a history 
of treatment in service at the outset of his initial treatment in 
February 2007.  He provided diagnoses of allergic rhinitis and 
allergic asthma at the time.

The Board notes that a VA examiner determined in October 2007 
that the Veteran's diagnosis of bronchial asthma, on an allergic 
basis, was not related to service.  He said there was no clinical 
evidence that the Veteran's recurrent allergic bronchitis and 
pneumonitis, which began in 1998 were causally related in any way 
to the acute bronchitis attack that occurred in 1993.  The 
rationale was that allergic bronchitis was due to an allergen and 
the acute bronchitis was most likely due to an infectious agent.  

The Veteran has provided substantial evidence of a continuity of 
symptomatology.  The evidence is from several sources.  He has 
provided evidence of continued treatment since service.  Dr. 
Kansal has reviewed the evidence of record and determined that 
the Veteran's current disabilities are related to his military 
service.  The VA examiner did not address the evidence that 
demonstrated that the Veteran experienced allergy-related 
symptoms and illnesses in service and beyond.

The Board has weighed the evidence of record and finds it to be 
in favor of service connection for sinusitis, rhinitis, and 
bronchial asthma.

Scars, Right Side of Face and Neck Burns

As noted in the STRs, the Veteran was seen in March 1985 for a 
1st degree burn to the right neck area after coffee was thrown at 
him.  The burn was described as to the head, posterior to the 
right pinna and down the right side of the neck to the upper 
right shoulder.  There were no follow-on entries for continued 
care.

The VA examination of October 2007 that described a 14-cm scar on 
the left side of the face is unreliable and not probative.  It is 
not clear whether there was a problem in the dictation and typing 
of the examination or whether the examiner related findings on a 
different individual.  The evidence of record does not support a 
finding of a scar on the left side of the Veteran's face or, more 
importantly, one that is 14-cm in length.  Moreover, the examiner 
used the term hypopigmented "macule" in describing the physical 
characteristic of the scar.

Macule is a synonym for macula.  Macula is defined as a small 
spot that is perceptibly different in color from the surrounding 
tissue.  A secondary definition is that it is a small, discolored 
patch or spot on the skin, neither elevated above nor depressed 
below the skin's surface.  See STEDMAN'S MEDICAL DICTIONARY 1052 
(26th Ed., 1995).  A 14-cm scar would be the equivalent of 
approximately 5 1/2 inches.  This would not be in keeping with 
examiner's use of the term macule.  Moreover, the finding of such 
a scar on the left side of the face is not consistent with any of 
the other medical evidence of record, especially examinations 
done to specifically evaluate facial scars.

A second examination from October 2007 reviewed the history of 
the original burn in 1985.  The scar on the right side of the 
neck had faded and was essentially gone at the time of the 
examination.  The examiner did note a small scar on the right 
temple that he said was 1.5-cm by .4-cm.  The examiner said that 
although the scar was small, it was prominent.  The examiner 
described the scar as a burn scar.  

In April 2009 the Veteran submitted his statement wherein he said 
he agreed with the results of the VA examination that found no 
visible scar of the right neck or cervical neck area.  He said he 
disagreed with the fact that when he fell to the floor the right 
side of his head hit the side of the table and that there is a 
visible scar on the right side of his face.  He said the scar had 
changed his skin color to black around the area of the scar.  

The evidence of record clearly establishes that the Veteran 
suffered a first degree burn to his right facial area during 
service.  There is current evidence of the existence of a 
residual scar as described in the second VA examination of 
October 2007.  Service connection for the scar, as described in 
the examination report, is therefore granted.

DVT

The Veteran's STRs for both active duty and Reserve service are 
negative for complaints or treatment of a DVT.  The first 
evidence of a DVT of the left lower leg is contained in the 
records from TMH and dated in August 2006.  The evidence 
unequivocally shows the DVT developed after an airplane flight 
that same month.  The flight was unrelated to any military 
duties.  In fact, the Veteran was retired at that time.  

The Veteran submitted his claim in September 2006; noting that he 
had read a health tip from his employer on the internet.  He 
listed two other internet articles at the time of his claim.  He 
submitted documentary evidence regarding how DVTs occur in 
airline passengers as well as a letter from United Airlines that 
discussed risk factors.  He has alleged that he was required to 
fly to different locations during his military service; both 
while full-time active duty and when doing two-week active duty 
periods in the Reserves.  He has said that he was not warned 
about the possibilities of developing a DVT as a result of 
flying.  He has also referenced other general medical reports 
that he believed VA should seek out that would demonstrate the 
link between flying and the development of DVTs.

The claims folder is replete with medical records regarding the 
treatment of the Veteran's DVT.  However, those records do not 
contain any opinion that relates the development of the DVT in 
2006, or any subsequent DVT, to the Veteran's military service.

The Veteran has not provided any evidence other than his own lay 
statements to relate his DVT to his military service.  He has not 
alleged that he developed the DVT during service or that he 
experienced symptoms during service.  His flight took place after 
he had retired from the Reserves as of August 1, 2006.  He has 
contended that the flying he did in service resulted in the DVT 
in August 2006.  The general medical and educational information 
he has provided is generic in nature and does not relate to his 
specific circumstances or overall medical condition.  The 
evidence does not relate to causality in this particular case.  
As such it is not sufficient to establish a medical link between 
the development of his DVT and his military service.  See Sacks 
v. West, 11 Vet. App. 314, 317 (1998).  

This case does not turn on the absence of treatment for a claimed 
disorder in STRs.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 
(Fed. Cir. 2006).  Rather, the Veteran has alleged that his post-
service development of DVT is related to airplane flights he took 
during service.  The Veteran is competent to provide evidence of 
his symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 469-70 
(1994); see also Jandreau v. Nicholson 492 F.3d 1372, 1377 (Fed. 
Cir. 2007).  He has cited to one STR entry from 1985 where he had 
indicated that he had a circulation or leg problem on a surgical 
health questionnaire.  As noted in the evidence discussion, the 
STRs contain no evidence of a circulation problem, especially for 
either leg.  

The Veteran's claim was predicated on his having developed his 
DVT after a post-service flight and general health information he 
was provided by his employer and material he read on the 
internet.  He is not competent to say that his DVT is related to 
his service.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 
2009); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) 
(although the claimant is competent in certain situations to 
provide a diagnosis of a simple condition such as a broken leg or 
varicose veins, the claimant is not competent to provide evidence 
as to more complex medical questions).

There is no diagnosis of a chronic disorder related to a DVT in 
service.  There is no evidence of a notation of such a disorder 
in service and no competent evidence to link the post-service 
development to the Veteran's military service, either active or 
Reserve.  Service connection for DVT is denied.

II.  Higher/Increased Ratings

Disability ratings are determined by the application of a 
schedule of ratings, which is based on the average impairment of 
earning capacity.  Individual disabilities are assigned separate 
diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§ 4.1 (2009).  Where entitlement to compensation has already been 
established and an increase in the assigned evaluation is at 
issue, it is the present level of disability that is of primary 
concern.  Francisco v. Brown, 7. Vet. App. 55, 58 (1994).  
Although the recorded history of a particular disability should 
be reviewed in order to make an accurate assessment under the 
applicable criteria, the regulations do not give past medical 
reports precedence over current findings.  Id.  

Where there is a question as to which of two evaluations shall be 
applied, the higher evaluation will be assigned if the disability 
picture more nearly approximates the criteria required for that 
rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7 (2009).  If the evidence of record supports it, staged 
evaluations may also be assigned for different periods over the 
course of the pendency of the appeal.  Hart v. Mansfield, 21 Vet. 
App. 505 (2007).  The Veteran's lumbosacral strain and left 
inguinal hernia disabilities are increased rating issues.

The Veteran's claim for a higher evaluation for his disabilities 
of left shoulder AC joint arthritis with mild impingement, and 
GERD are original claims that were placed in appellate status by 
a notice of disagreement (NOD) expressing disagreement with an 
initial rating award.  As such, separate ratings can be assigned 
for separate periods of time based on the facts found--a practice 
known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 
(1999).

A.  Increased Rating for Lumbosacral Strain
Background

The Veteran, through his then-appointed attorney representative, 
submitted a claim for service connection for several issues in 
November 2003.  He noted that he complained of a back injury 
while on his period of active duty from 2001 to 2003.  He 
submitted several STR entries that show he was treated for lower 
back strain in January 2002.  He received an injection of 
Ketorolac to relieve his symptoms.  

Although the above-noted entry said the Veteran had no history of 
back pain, additional earlier STR entries noted that he 
complained of back pain in December 1985.  He reported he had 
fallen on the steps of a ladder on his ship and injured his back.  
X-rays of the lumbosacral spine at that time showed a slight 
straightening of the normal lumbar lordosis.  There was no 
evidence of acute bony injury or malalignment.  The disc spaces 
appeared to be maintained.  He also complained of back pain in 
February 1995.  The clinical entry noted that he reported having 
jumped out of his rack and landed wrong.  He developed low back 
pain.  

A Report of Medical History from May 2002 recorded a history of 
recurrent back pain from the Veteran.  The medical examiner 
recorded a history from the Veteran of back pain that was the 
result of a fall in 2001-2002.  A Report of Medical Assessment, 
dated in June 2002, noted that the Veteran complained of back 
pain without further comment.  

The Veteran was afforded a VA examination in April 2004.  He said 
he had a low back injury and was diagnosed with lumbar strain in 
January 2002.  He complained of intermittent low back pain, 
mostly in the left flank.  He denied any radiation in the lower 
extremities.  The Veteran had back flexion to 95 degrees, 
extension to 35 degrees, right and left lateral bending to 35 
degrees, and right and left rotation to 40 degrees.  The examiner 
said the movements were without pain.  There was some minor 
tenderness to palpation along the paraspinal musculature on the 
left side.  The lower extremities were fine, and straight leg 
raising (SLR) was said to be negative.  The examiner said the 
range of motion was the same for both active and passive testing.  
There was no limitation due to weakness, fatigability, 
incoordination or flare-ups.  The examiner said there was no 
effect on the Veteran's usual occupation.  

An x-ray of the lumbar spine was said to show mild sclerosis of 
the facet joints, otherwise the disc space appeared to be well 
preserved.  The impression was mild lumbosacral sprain.  

VA records for the period from June 2003 to August 2004 recorded 
treatment primarily for unrelated issues.  The Veteran was seen 
on June 26, 2003, two days prior to his separation from service, 
with complaints of back pain.  He said he had pain in lower 
lumbar area and wanted an x-ray.  There was no radiation of pain, 
numbness, or tingling.  

The Veteran was granted service connection for lumbosacral strain 
in December 2005.  He was awarded a noncompensable disability 
rating.  The effective date for service connection and the 
disability rating was established as June 29, 2003.  This was the 
day after his separation from active duty as his claim was 
received within one year of his separation.  Notice of the rating 
action was provided in January 2006.  

VA records were associated with the claims folder in December 
2005.  They included a number of x-ray reports from 1997 to 2004.  
In regard to the lumbosacral spine a report from April 2004 noted 
the disc spaces were preserved with no fractures, dislocations, 
or osteolytic lesions.  The impression was normal examination.  

The Veteran submitted a statement with medical records in October 
2006.  He referenced a July 2004 rating decision that had 
deferred the issue of service connection for a back disability.  
He did not address the rating decision of December 2005 that 
granted service connection.  The record shows that the Veteran 
was given notice of the rating decision on January 11, 2006.  The 
record also demonstrates that he received the notice as he was 
granted service for his GERD and left shoulder disabilities and 
submitted a NOD with the disability ratings for those 
disabilities in February 2006.  

The Veteran said that his back was giving him problems.  He 
provided multiple comments regarding his left shoulder 
disability.  He referenced treatment from Team Physicians, and a 
Dr. Anderson and a Dr. Shipp; however, the material he provided 
appears related solely to therapy for his left shoulder.  He 
noted that he was going to pursue a physical therapy program and 
that he had one treatment that helped with his back.  He then 
asked that he be given a 30 percent rating for his back so that 
he could afford the treatment or have VA pay his co-pay amounts.

A treatment record from Team Physicians, dated in September 2006, 
and received January 25, 2007, noted a history of back pain for 
the last 3-4 years after a fall in 2003.  The entry noted that 
therapy was provided for back pain to include electrical muscle 
stimulation and traction.

The Veteran submitted evidence of treatment in the ER at TMH in 
February 2007.  The assessment was acute lumbar myofascial pain.  
An x-ray showed mild narrowing of the L4-L5 and L5-S1 levels.  

The Veteran submitted records from the Southlake MRI & Diagnostic 
Center in April 2007.  The records included a post-myelogram CT 
scan of the lumbar spine that showed mild scoliosis, small 
calcified left paracentral L5-S1 disk herniation, minimal 
calcified right paracentral L5-S1 disk herniation, mild broad-
based L4-L5 disk herniation with right lateral foraminal 
predominance, right L4-L5 neural foramen stenosis and mild 
bulging of the L3-L4 annulus fibrosis.  The records also included 
x-rays of the lumbar spine that were interpreted to show L4-L5 
degenerative disc disease (DDD).

Records from APMA for the period of February 2007 to May 2007 
were received in May and June 2007.  A new patient entry from 
February 26, 2007, reflected a history from the Veteran of the 
pain he experienced for several of his service-connected 
disabilities and left hip.  In regard to his back the Veteran 
said he always had pain, it was every day and was a 10+.  He took 
Ibuprofen and Tylenol for his pain, with Flexeril and Naproxen.  
The Veteran was assessed with low back pain and possible 
radiculopathy.  

In a letter to Dr. Atassi, the examining physician noted that the 
Veteran had back pain that required his visit to an ER for 
treatment (TMH records document this) the day prior to 
examination.  No range of motion measurements were conducted and 
the only physical finding reported was that muscles and bones 
were tender to palpation over the lower lumbar spine on the left 
side.  The assessment was low back pain and additional studies 
were going to be done for evaluation.  A lumbar myelogram from 
March 2007 was interpreted to show spinal stenosis at the L3-L4, 
L4-L5, and L5-S1 levels.  

The Veteran received epidural injections for lumbar pain on April 
20, 2007, and May 4, 2007.  In addition, the Veteran underwent a 
provocative discogram of L2-L3, L3-L4, L4-L5, and L5-S1 on May 
22, 2007.  The report indicated no pain or leak in the epidural 
spaces for L2-L3, or L3-L4.  However, pain of 10/10 and a leak in 
the epidural space was noted at L4-L5 and L5-S1.  A post-
discogram CT scan of the lumbar spine provided the following 
impressions of normal L2-L3 disc, mild L3-L4 disc degeneration 
with a central posterior annular fissure and a minimal central 
disc protrusion.  There was advanced L4-L5 disc degeneration with 
a mild broad-based disc herniation with right lateral foraminal 
predominance and advanced L5-S1 small left central and minimal 
right paracentral disc herniations.  

The Veteran was afforded a VA examination in August 2007.  The 
Veteran reported having chronic low back pain for quite some 
time.  He also had developed left lower extremity radiculopathy 
with pain that he stated began in the left lower extremity and 
extended down to the ankle.  He also described intermittent 
numbness and tingling but no evidence of any focal neurological 
deficits or weakness.  He reported no incapacitating episodes or 
any bowel or bladder incontinence.  He had recently received a 
back brace.  The examiner referred to a private CT myelogram of 
3/07.  He recited the findings from the report and commented that 
the calcified left paracentral disc herniation at L5-S1, that was 
pressing against the left sided S1 nerve root, was the most 
likely cause of the Veteran's radiculopathy.  The examiner noted 
that the Veteran was seen by Dr. Atassi and received epidural 
steroid injections for his radicular symptoms.  The examiner said 
that, with medications, the Veteran's radiculopathy was 
intermittent.

The lumbar spine had a range of motion of flexion to 90 degrees 
without pain and extension to 30 degrees with some mild 
discomfort at 30 degrees.  The Veteran had right and left lateral 
bending to 30 degrees without pain.  He had left and right 
rotation to 20 degrees with some reproducible low back pain at 30 
degrees [sic].  The examiner said there was no paraspinal 
musculature spasms noted.  Periphery nerve examination showed 
intact motor function of the quadriceps, hamstrings, 
dorsiflexion, plantar flexion and extensor hallucis longus (EHL) 
function.  There were symmetrical deep tendon reflexes (DTRs) of 
the patellar and Achilles bilaterally.  There was an equivocal 
straight leg raise on the left side.  The examiner said the 
Veteran had good sensation of superficial deep peroneal nerve 
distribution bilaterally.  

X-rays of the lumbar spine showed evidence of DDD of L4-L5, and 
L5-S1.  The pertinent diagnosis was DDD of the lumbar spine with 
peripheral nerve examination shows intermittent left lower 
extremity radiculopathy secondary to a herniated nucleus pulposus 
(HNP) at L5-S1.  The examiner said that there was no additional 
functional impairment due to pain, weakness, fatigability, 
incoordination, or flare-ups.  No assistive devices.  There were 
no incapacitating episodes or radiation of pain, and no 
neurologic findings or effect on the usual occupation or daily 
activities.  The examiner added that, based on his examination, 
it appeared that the Veteran had developed intermittent left 
lower extremity radiculopathy secondary to his DDD of the lumbar 
spine.

Associated with the claims folder are VA treatment records for 
the period from June 2003 to September 2007.  Most of the records 
are duplicative of evidence in the claims folder.  However, the 
records do reflect treatment for complaints of back pain to 
include a two-month period of physical therapy from July to 
September 2007.  The Veteran also underwent electromyography 
(EMG)/nerve conduction velocity (NCV) testing as part of his 
therapy in July 2007.  The EMG/NCV report stated that there was 
no electrodiagnostic evidence of left L-S radiculopathy.  

The RO increased the rating for the Veteran's back disability to 
10 percent in September 2007.  The effective date of the rating 
was October 6, 2006.  The RO determined that this was the date of 
claim for an increased rating.  The RO also re-characterized the 
disability as lumbosacral strain with radiculopathy.

The Veteran submitted his NOD with the 10 percent rating in 
November 2007.  He included a prescription pad note signed by B. 
Aalaei, M.D., one of the physicians at APMA.  The note was dated 
May 4, 2007, and said that the Veteran could return to work but 
with no lifting over 15 pounds.  He was said to be receiving 
steroid injections for a herniated disc.

The Veteran submitted records from R. Unni, M.D., for the period 
from November 2006 to March 2008.  The records primarily 
addressed treatment for genitourinary (GU) problems.  However, 
there was consultation report from W. Dodson, M.D., of Advanced 
Pain Consultants, that was dated in February 2008.  The Veteran's 
chief complaint was of pain in the lower back area on the left 
with radiation of the pain down the front of the left lower 
extremity, stopping at the foot.  The Veteran said it was a 
10/10.  He also reported his pain was aggravated by physical 
activity, sitting, standing, walking, bending over, stress, and 
climbing stairs.  He reported partial relief by lying down and by 
taking pain pills.  

Gait was said to be normal and the Veteran could walk on his 
heels and toes.  There was no tenderness over the spinous 
processes in the lumbar area or the paraspinal muscles.  There 
was no tenderness over the sacroiliac joint area bilaterally.  
Straight leg raising was negative bilaterally.  Patrick sign was 
positive on the left, associated with pain in the lower back area 
and reproduced pain in the left groin area.  Sensory exam was 
essentially normal and peripheral pulses were palpable in both 
lower extremities.  Dr. Dodson reviewed the results of December 
2007 lumbar MRI.  The diagnosis was lumbar radiculitis and groin 
pain.  

VA treatment records for the period November 2007 to April 2008 
included the results of an MRI from December 2007.  This was the 
MRI report referenced by Dr. Dodson.  The report said the MRI 
showed normal alignment, mild DDD seen with disc bulges noted at 
L3-L4, L4-L5, and L5-S1.   No significant central stenosis seen.  
Osteopenic changes were noted.  Early facet joint disease seen 
and bilateral foraminal stenosis.  

The Veteran was afforded a VA examination in September 2008.  He 
reported that he had pain in the lumbosacral spine that was 9/10.  
It occurred daily.  He said it was a sharp pain that radiated 
into the left leg.  He took Gabapentin for his pain.  The 
examiner said the Veteran could climb 300 stairs in a day and 
walk 3 miles in a day at work.  The Veteran said that he had 
fallen 4 times in the last year because of numbness in his left 
leg.  He said that he wore a back brace all of the time as it 
helped to relieve the pain.  The Veteran walked with cane.  He 
said his activities of daily living were restricted to some 
extent.  His wife would usually help him put on socks and lace 
his shoes.  He was able to drive.  There were no incapacitating 
episodes requiring hospitalization.  There was no tenderness or 
spasm of the lumbosacral spine muscles.  The Veteran had flexion 
from 0 to 60 degrees, limited by pain and stiffness at 60 
degrees.  He had extension from 0 to 20 degrees limited by pain 
and stiffness at that point.  The Veteran had bending to the 
right and left from 0 to 20 degrees bilaterally, with limitation 
at that point due to pain and stiffness.  Finally, he had 
rotation to the right and left from 0 to 20 degrees with 
limitation at that point due to pain and stiffness.

The examiner said that active and passive movements were the same 
as were movements against gravity and resistance.  He said that 
the muscles showed no atrophy and strength was 4/5 in the 
lumbosacral area.  The examiner said that the Veteran had 4/5 
strength in the limbs on the left.  The reflexes were present and 
equal, and sensation was intact.  The examiner said that there 
was swelling in the left leg from DVT.  He referred to the 
results of the December 2007 VA MRI of the lumbar spine.  The 
impression was lumbosacral spine DDD with left lower extremity 
radiculopathy, of moderate severity.

The Veteran's disability rating was increased to 20 percent by 
way of a rating decision dated in October 2008.  The effective 
date for the increase was said to be December 7, 2007.  The RO 
determined the Veteran had submitted a claim for an increase on 
that date.  

The Veteran was afforded a VA examination in January 2009.  He 
complained of pain that he said was 9/10.  He took Motrin and 
Gabapentin for pain.  He said the pain would shoot down his left 
leg and he had had eight steroid injections in the last several 
years.  The Veteran said he could walk one-half mile and 20 steps 
at each of the 13 stations at work twice a day.  He wore a brace 
but was not unsteady on his feet.  He had not fallen.  Mobility 
was not affected.  The examiner said that the Veteran's 
activities of daily living were not affected except he had some 
difficulty with putting on and taking off clothes.  He was able 
to drive

Physical examination noted no tenderness or spasm of the 
lumbosacral area.  The Veteran had flexion of 0 to 30 degrees, 
extension 0 to 20 degrees, lateral bending to the right and left 
from 0 to 25 degrees and rotation to the right and left from 0 to 
25 degrees.  The examiner said that the movements were limited at 
their extremes by pain and stiffness.  He said that active and 
passive movements were the same as were movements against gravity 
and resistance.  There was no muscle atrophy and strength of the 
lumbosacral spine was said to be 4/5.  There was no additional 
functional impairment due to pain, pain on repeated use times 
three, weakness, fatigue, lack of endurance, incoordination, or 
flare-up.  The examiner said that reflexes were present in the 
lower extremities and sensation was intact.  He referred to the 
May 2008 MRI results noted in the last VA examination.  The 
diagnosis was DDD of the lumbosacral spine with radiculopathy of 
the left lower extremity.

The Veteran's disability rating was increased to 40 percent by 
way of a rating decision dated in February 2009.  The effective 
date for the increase was said to be January 13, 2009, the date 
of his VA examination that showed a worsening of his symptoms.  

The Veteran submitted the results of a MRI of the lumbar spine 
that was done at TMH in January 2009.  The report said that there 
was a small extruded disc at L5-S1 centrally in contact with left 
S1 nerve root.  No canal stenosis or foraminal narrowing at any 
levels.  

He submitted the results of another MRI of the lumbar spine dated 
in May 2009.  The results showed a small to moderate central to 
left paracentral L5-S1 disc herniation with superior extrusion, a 
mild broad-based L4-L5 disc herniation with right paracentral 
predominance and L3-L4 disc degeneration.

Records from M. J. Spence, M.D., a physical medicine and 
rehabilitation specialist, were received in June 2009.  The 
records related to an assessment done in February 2009.  The 
Veteran was noted to have chronic low back pain since 2002, 
occasionally radiating down the left lower extremity to the foot.  
He also reported intermittent numbness in the left medial foot.  
Dr. Spence referred to an MRI of the lumbar spine but did not say 
which one.  Dr. Spence noted a history of recurrent DVT in the 
left lower extremity in 2006 and 2007.  

He said the Veteran was fully independent of activities of daily 
living without assistive devices.  He lived in a house with 15 
steps.  Gait pattern was normal.  On physical examination there 
was a normal lumbar lordosis, with range of motion limited to 25 
degrees flexion, 20 degrees left lateral flexion, 15 degrees 
right lateral flexion, and 10 degrees extension.  There was no 
tenderness midline but there was positive tenderness in lumbar 
paraspinals at L4-5 and L5-S1.  There was no tenderness at the 
trochanteric bursa.  Fabers was said to be negative for hip or 
sacroiliac (SI) joint dysfunction.  Muscle strength was 5/5 in 
both upper and lower extremities bilaterally.  DTR +2 in patella 
and Achilles bilaterally, and normal tone.  Sensation to light 
touch and pinprick was grossly intact from C5-T1 and L2-S1 
dermatomes bilaterally.  SLR negative at 45 on the left.  The 
assessment was chronic low back pain and left lower extremity 
pain secondary to lumbar radiculopathy from disc protrusion.  

A March 2009 examination report from E. M. Shepherd, M.D., was 
received in June 2009.  He said the Veteran was seen for a 
complaint of history of back pain and left leg pain with S1 nerve 
root dermatomal distribution.  The Veteran gave a history of 
falling twice while getting out of a boat after boat patrol.  He 
continued to have back pain and spasms and the numbness of his 
left leg.  He also felt that his left leg was weaker than his 
right leg.  He said he would wake up in the morning with spasms.  
The Veteran said he had had three epidural injections that had 
not helped.

The physical examination showed an antalgic gait with the Veteran 
favoring the right leg.  He could ambulate on his tip toes and 
heels with difficulty, especially tip toes.  Dr. Shepherd said 
the range of motion of the lumbosacral spine was restricted in 
both flexion and extension but no measurements were provided.  
There was no tenderness of the back on palpation and no problem 
with balance or coordination.  No major atrophy or deformity.  
The neurological exam showed upper and lower extremity motor 
functions and sensory functions were grossly normal.  The DTRs 
were active and symmetrical.  There was no clonus, spasticity or 
pathological reflexes.  The plantar reflex was down going.  SLR 
was positive at about 50 degrees [not specified which leg].  Dr. 
Shepherd said the range of motion of both upper and lower 
extremities was normal.  He did not provide any 
assessment/impression or diagnosis.

The Veteran submitted medical records from B. Ring, M.D., in July 
2009.  The records covered a period from October 2007 to January 
2009.  An initial examination from October 2007 noted that the 
Veteran had a chief complaint of groin pain, LBP and left lumbar 
radiculopathy.  The pain was primarily on the left.  It was 
described as an aching, shooting type pain, exacerbated by 
everything.  It seemed to always be present, especially when 
sitting down.  The Veteran reported the pain as 10/10 and it 
began approximately five year ago.  The Veteran said the pain 
sometimes worsened and affected his sleep.  Dr. Ring reported the 
subjective symptoms showed a distribution at L5-S1 and L3 in the 
groin.  

Dr. Ring noted the Veteran's past treatments to include 
injections.  The Veteran complained of numbness in his left leg 
and tingling, the tingling was not increasing.  He did not have 
frank muscular weakness.  There was some weakness in the lower 
back and groin and aches in those areas and spasms.  There were 
some lymph node problems in the left groin as demonstrated on 
ultrasound.  Supine SLR was positive on the left.  Lumbar facet 
loads were positive bilaterally with pain in the left lumbar 
facet area and upper buttocks in the left lower back.  Trigger 
points were positive in the left lower back, left buttocks region 
and over the left SI joint region.  The right side was normal.  
Dr. Ring said that active and passive range of motion were "ok" 
but did not provide any measurements.  Strength was said to be 
decreased on thigh flexion at the hip on the left side.  Reflexes 
were 2/3 upper and lower bilaterally.  Sensory upper and lower 
was intact to touch, cold vibratory, sharp.  Neurologic 
examination was grossly intact.  

The assessment was:  History of clot or DVT in the left lower 
extremity, lower back pain, left lumbar radiculopathy, groin 
numbness, history by patient history of left inguinal adenopathy, 
and history of depo-medrol injections.

Additional records identified as from Advance Pain Care show that 
the Veteran was seen on several occasions for LBP.

Associated with the claims folder are VA treatment records for 
the period from January 2009 to August 2009.  The Veteran was 
seen in January 2009 with complaints of back pain.  He had been 
seen at TMH were an MRI, noted supra, was done.  The Veteran was 
noted to have muscle spasm on the left lower paralumbar area, and 
muscle tenderness on deep palpation.  There was no vertebral 
tenderness and no muscle atrophy.  SLR testing was unremarkable.  
Heel walking was fair and toe walking more difficult.  The 
assessment was LBP with radicular symptoms.  A referral to 
physical therapy was made.  

A physical therapy entry from April 2009 noted a history of back 
pain for 7 years.  The Veteran said the pain was 5/10.  The 
Veteran said his job involved heavy lifting and this aggravated 
his disability.  The therapist said the Veteran was independent 
for grooming/hygiene, dressing of the upper and lower body.  The 
Veteran had good sitting, standing, and walking balance.  No 
adaptive equipment.  There was no activity limitation and 
restriction on participation although pain was said to be a 
barrier to the treatment plan.  The goals were to reduce pain and 
increase activity levels.  

A neurology clinic note from August 2009 said the Veteran 
completed his therapy in May.  It had helped but the pain comes 
back.  He reported lots of climbing stairs, walking and lifting 
at work that made him feel worse.

The Veteran was granted service connection for left lower 
extremity radiculopathy in August 2009.  He was awarded a 10 
percent disability rating.  The effective date for the grant and 
the disability award was established as May 23, 2008.  (This 
issue is addressed in the remand portion of this decision.)

Analysis

At the outset the Board notes that this is an increased rating 
issue.  The Veteran originally sought service connection for a 
back disorder in November 2003.  He was granted service 
connection for lumbosacral strain in December 2005.  Notice of 
the rating action was provided January 11, 2006.  The Veteran did 
not submit a disagreement with any aspect of the back rating 
within one year and the decision is final.  

The Board notes that the Veteran did submit a statement that was 
received in October 2006 that was within the one year period.  
However, the Veteran referenced a July 2004 rating decision that 
had deferred adjudication of the issue of service connection for 
a back disability.  The Veteran did ask for a 30 percent rating 
for his back but that was in the context of wanting money to pay 
for his physical therapy program.  It was not in reference to a 
prior adjudication and a disagreement with a particular rating.  
As noted, the Veteran had received notice of the rating action 
and previously disagreed with the ratings for his left shoulder 
and GERD disabilities.

In addition, the Board has reviewed the record and a significant 
amount of evidence was added to the record between January 2006 
and January 2007.  However, nearly all such evidence was 
unrelated to this issue.  The Veteran's October 2006 lay 
statement of his back being improved from one therapy session 
does not constitute new and material evidence that would support 
an increase in his rating.  See Young v. Shinseki, 22 Vet. App. 
461 (2009); Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005); 
see also 38 C.F.R. §§ 3.156(b), 20.210 (2009).

The regulations used to evaluate disabilities of the spine are 
codified at 38 C.F.R. § 4.71a (2009).  Other than a disability 
involving intervertebral disc syndrome (IVDS), the different 
disabilities are evaluated under the same rating criteria.  The 
diagnostic codes are as follows:

Diagnostic Code 5235, Vertebral fracture or 
dislocation; Diagnostic Code 5236, 
Sacroiliac injury and weakness; Diagnostic 
Code 5237 Lumbosacral or cervical strain; 
Diagnostic Code 5238 Spinal stenosis; 
Diagnostic Code 5239 Spondylolisthesis or 
segmental instability;  
Diagnostic Code 5240 Ankylosing 
spondylitis; Diagnostic Code 5241 Spinal 
fusion;  
Diagnostic Code 5242 Degenerative arthritis 
of the spine (see also diagnostic code 
5003); 
Diagnostic Code 5243 Intervertebral disc 
syndrome.

Under the general rating formula for diseases and injuries of the 
spine, (For diagnostic does 5235 to 5243 unless 5243 is evaluated 
under the Formula for Rating Intervertebral Disc Syndrome Based 
on Incapacitating Episodes): with or without symptoms such as 
pain (whether or not it radiates), stiffness, or aching in the 
area of the spine affected by residuals of injury or disease.  A 
10 percent rating is for where there is forward flexion of the 
thoracolumbar spine greater than 60 degrees but not greater than 
85 degrees; or, combined range of motion of the thoracolumbar 
spine greater than 120 degrees but not greater than 235 degrees; 
or muscle spasm, guarding, or localized tenderness not resulting 
in abnormal gait or abnormal spinal contour.  A 20 percent 
evaluation is for forward flexion of the thoracolumbar spine 
greater than 30 degrees but not greater than 60 degrees, or a 
combined range of motion of the thoracolumbar spine of not 
greater than 120 degrees; or muscle spasm or guarding severe 
enough to result in an abnormal gait or abnormal spinal contour 
such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent evaluation will be assigned for unfavorable 
ankylosis of the entire cervical spine; or, forward flexion of 
the thoracolumbar spine 30 degrees or less; or, favorable 
ankylosis of the entire thoracolumbar spine.  A 50 percent 
evaluation will be assigned where there is evidence of 
unfavorable ankylosis of the entire thoracolumbar spine.  A 100 
percent evaluation will be assigned for unfavorable ankylosis of 
the entire spine.  38 C.F.R. § 4.71a (2009).

In addition, several notes outline addition guidance for applying 
the rating formula. 

Note (1): Evaluate any associated objective 
neurologic abnormalities, including, but 
not limited to, bowel or bladder 
impairment, separately, under an 
appropriate diagnostic code.

Note (2): (See also Plate V) For VA 
compensation purposes, normal forward 
flexion of the cervical spine is zero to 45 
degrees, extension is zero to 45 degrees, 
left and right lateral flexion are zero to 
45 degrees, and left and right lateral 
rotation are zero to 80 degrees.  Normal 
forward flexion of the thoracolumbar spine 
is zero to 90 degrees, extension is zero to 
30 degrees, left and right lateral flexion 
are zero to 30 degrees, and left and right 
lateral rotation are zero to 30 degrees.  
The combined range of motion refers to the 
sum of the range of forward flexion, 
extension, left and right lateral flexion, 
and left and right rotation.  The normal 
combined range of motion of the cervical 
spine is 340 degrees and of the 
thoracolumbar spine is 240 degrees.  The 
normal ranges of motion for each component 
of spinal motion provided in this note are 
the maximum that can be used for 
calculation of the combined range of 
motion.

Note (3): In exceptional cases, an examiner 
may state that because of age, body 
habitus, neurologic disease, or other 
factors not the result of disease or injury 
of the spine, the range of motion of the 
spine in a particular individual should be 
considered normal for that individual, even 
though it does not conform to the normal 
range of motion stated in Note (2).  
Provided that the examiner supplies an 
explanation, the examiner's assessment that 
the range of motion is normal for that 
individual will be accepted.

Note (4): Round each range of motion 
measurement to the nearest five degrees.

Note (5): For VA compensation purposes, 
unfavorable ankylosis is a condition in 
which the entire cervical spine, the entire 
thoracolumbar spine, or the entire spine is 
fixed in flexion or extension, and the 
ankylosis results in one or more of the 
following: difficulty walking because of a 
limited line of vision; restricted opening 
of the mouth and chewing; breathing limited 
to diaphragmatic respiration; 
gastrointestinal symptoms due to pressure 
of the costal margin on the abdomen; 
dyspnea or dysphagia; atlantoaxial or 
cervical subluxation or dislocation; or 
neurologic symptoms due to nerve root 
stretching.  Fixation of a spinal segment 
in neutral position (zero degrees) always 
represents favorable ankylosis.

Note (6): Separately evaluate disability of 
the thoracolumbar and cervical spine 
segments, except when there is unfavorable 
ankylosis of both segments, which will be 
rated as a single disability. 

The criteria also direct that IVDS be evaluated either on the 
total duration of incapacitating episodes over the past 12 months 
or by combining under 38 C.F.R. § 4.25 separate evaluations of 
the chronic orthopedic and neurologic manifestations along with 
evaluations for all other disabilities, whichever method results 
in the higher evaluation.  38 C.F.R. § 4.71a.

In this case, although the Veteran's disability is rated as 
lumbosacral strain, he has been granted service connection for a 
separate disability involving radiculopathy of the left lower 
extremity.  That issue is addressed in the remand portion of this 
decision.  The evidence of record does not establish any 
additional neurological component to the Veteran's disability.  
Accordingly, no further discussion is warranted in regard to a 
separate neurological rating or to incapacitating episodes.

As noted above, Plate V provides a pictorial of the normal range 
of motion for the cervical and thoracolumbar spine.   See 
38 C.F.R. § 4.71a, Plate V (2009).

The Veteran's disability rating was increased to 10 percent in 
September 2007, effective as of October 6, 2006.  It was 
increased to 20 percent in October 2008, effective from December 
7, 2007.  Finally, the disability rating was increased to 40 
percent in February 2009, effective from January 13, 2009.

In evaluating the Veteran's lumbosacral strain, the Board finds 
that there is no basis for an evaluation in excess of 10 percent 
prior to December 7, 2007.  In that regard, the evidence of 
record does not establish that the Veteran symptoms satisfy the 
rating criteria for a rating in excess of 10 percent at any time 
prior December 7, 2007.  The Veteran's range of motion, as 
reflected on several examinations does not indicate 
symptomatology associated with a 20 percent rating until 
September 2008, when his forward flexion was measured at 60 
degrees.  

His combined range of motion at the time of his examination in 
August 2007 and his forward flexion of 90 degrees did not satisfy 
the criteria for a 10 percent rating.  The Veteran had complaints 
of back pain and there was evidence of record to reflect that he 
had received epidural injections for his back pain.  X-ray, CT 
scan and MRI evidence documented findings of DDD of the lumbar 
spine, as well as disc herniations.  However, the Veteran's range 
of motion was still as measured and not such as to warrant an 
increased rating.  The evidence did not demonstrate muscle spasm, 
guarding or localized tenderness resulting in abnormal gait or 
abnormal spinal contour.  There is no basis to grant a rating in 
excess of 10 percent prior to December 7, 2007.

The September 2008 VA examination documented flexion to 60 
degrees.  The Veteran's combined range of motion for the 
thoracolumbar spine at that time was not sufficient to warrant a 
20 percent.  The increased rating from October 2008 was based on 
the evidence of the limitation of flexion to 60 degrees.  

As to the date established by the RO, December 7, 2007, the Board 
notes that the Veteran had previously submitted his NOD with the 
10 percent rating established by the rating decision of September 
2007 in November 2007.  As such he had submitted his intent to 
appeal his disability and the issue of an increased rating 
remained on appeal from the date of the claim, October 6, 2006.  
See AB v Brown, 6 Vet. App. 35 (1993).  There can be no "new" 
claim to serve as a basis for an increased rating.

As noted, the September 2008 examination results was the first 
evidence that the Veteran's symptomatology satisfied the rating 
criteria for a 20 percent rating.  This was the earliest date the 
increase was ascertainable.  The treatment records do not provide 
evidence of symptomatology consistent with a 20 percent rating 
under the rating criteria.  It is unequivocal that there is no 
range of motion measurements to support a 20 percent rating prior 
to the September 2008 examination.  Further, the treatment 
records do not reflect symptoms of muscle spasm or guarding 
severe enough to result in an abnormal gait or abnormal spinal 
contour as required by the rating criteria at any time prior to 
September 2008.  However, the RO provided the Veteran with a 
greater benefit in establishing an effective date of December 7, 
2007, for the 20 percent rating.  

The examination of January 13, 2009, was close in time to the 
prior examination.  The Veteran's range of motion was reduced by 
way of flexion with 30 degrees of flexion on examination.  The 
other planes remained essentially unchanged.  As noted in the 
rating criteria, flexion to 30 degrees or less warrants a 40 
percent rating.  The 40 percent rating established by the RO, as 
of the date of the examination, is the earliest date that the 
evidence supports such an increase. 

Although the Veteran continued to receive treatment for his back 
complaints, the evidence does not support a rating of 40 percent 
prior to the VA examination in January 2009.  

The evidence after January 2009 does reflect increased 
symptomatology.  Dr. Spence reported a decrease in the range of 
motion for flexion, extension and lateral movement from the VA 
examination.  Dr. Shepherd reported restriction in extension and 
flexion, although without measurements.  

As noted, to warrant assignment of a 50 percent rating there must 
be unfavorable ankylosis of the entire thoracolumbar spine.  A 
100 percent rating requires unfavorable ankylosis of the entire 
spine.  It is undebatable that the evidence of record reflects no 
finding of ankylosis of the thoracolumbar spine at any time 
during the pendency of the appeal.  Accordingly, a disability 
rating in excess of 40 percent is not justified and the claim is 
denied.

When an evaluation of a disability is based on limitation of 
motion, the Board must also consider, in conjunction with the 
otherwise applicable diagnostic code, any additional functional 
loss the Veteran may have sustained by virtue of other factors as 
described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2009).  See DeLuca v. 
Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or 
less movement than normal, weakened movement, excess 
fatigability, incoordination, pain on movement, swelling, and 
deformity or atrophy of disuse.  

The Veteran has complained of low back throughout the pendency of 
his appeal.  He has been treated by VA and private physicians for 
his complaints to include epidural injections provided to help 
with the pain.  He has referred to his pain as a 10/10, 10+, or 
9/10 to his several healthcare providers.  

The VA examiners carefully documented the Veteran's range of 
motion on examination.  The August 2007 VA examiner said there 
was no additional functional impairment due to pain, weakness, 
fatigability, incoordination, or flare-ups.  No assistive devices 
and no incapacitating episodes or radiation of pain, and no 
neurologic findings or effect on the usual occupation of daily 
activities.  There was some pain on extension and rotation.  In 
September 2008, the examiner noted that the Veteran had pain and 
stiffness and the limits of the ranges of motion reported.  The 
examiner reported the ranges of motion were the same with active 
and passive and after three tests.  He added that there no 
additional functional impairment due to pain, weakness, 
fatigability, incoordination, or flare-ups.

In January 2009, the examiner again noted that the Veteran's 
ranges of motion were limited by pain at their extremes.  The 
movement was the same with passive and active motion.  As with 
the other two examinations, there was no additional functional 
impairment due to pain, pain on repeated use times three, 
weakness, fatigue, lack of endurance, incoordination, or flare-
up.  

The Board recognizes the Veteran's many subjective complaints of 
pain.  However, in light of the examination findings, to include 
no changes after multiple testing and careful assessments of the 
Veteran's pain and its effect on his range of motion by the 
examiners, the Board finds that his disability ratings adequately 
address his symptomatology for the periods represented by his 10, 
20, and 40 percent ratings.


B.  Increased Rating Left Inguinal Hernia
Background

The Veteran's STRs contain a November 1995 separation physical 
examination that noted a left inguinal repair.  A VA treatment 
record of December 1995 recorded that the Veteran complained of a 
cyst on the left side and lump in left inguinal area.  A left 
inguinal hernia (LIH), described as small but very tender, was 
noted.

The Veteran submitted his claim for service connection for a LIH 
in December 1995.  A VA examination in May 1996 noted a prior RIH 
repair.  The findings included a small, easily reducible 
umbilical hernia.  No inguinal hernia was found on examination.

The Veteran was granted service connection for a LIH in June 
1996.  He was awarded a noncompensable disability rating for the 
hernia.

The Veteran submitted evidence that he had had a hernia repair in 
October 2000.  Evidence was received from The Methodist Hospitals 
to show a LIH repair in March 2000.

The Veteran was granted a temporary 100 percent rating under 38 
C.F.R. § 4.30 in October 2000.  The rating was effective from 
March 9, 2000, to April 30, 2000.  His noncompensable rating was 
then in effect from May 1, 2000.

The Board notes that STR entries from the Veteran's period of 
Reserve service were added to the record at a later date.  
However, they did contain entries noting that the Veteran needed 
to be evaluated and cleared for return to full duty.  An entry 
from April 2000 noted that he was returned to full duty with no 
restrictions.

The Veteran was afforded a VA examination in September 2001.  His 
March 2000 hernia repair was noted.  He said he was a 
steelworker.  His job required heavy lifting.  The Veteran said 
that he had soreness every day after work and would experience 
moderate to severe pain in the left inguinal area that would 
subside overnight.  He said he was pain-free and asymptomatic on 
weekends.  No recurrent hernia was found on examination as well 
as any local tenderness or palpable mass.  The diagnosis was 
hernia repair of a LIH with scar and continuous symptoms as 
described.  

The Veteran's then-appointed attorney representative advised the 
RO in December 2001 that the Veteran had been recalled to active 
duty.  The attorney representative argued that the VA examination 
findings warranted a 10 percent rating in January 2002.  

The RO denied entitlement to a compensable disability rating in 
March 2002.  However, the RO issued another rating decision in 
August 2002 wherein the Veteran's disability rating was increased 
to 10 percent from May 1, 2000.  The Veteran disagreed with the 
rating action in November 2002.  

As noted the Veteran was recalled to active from November 2001 to 
June 2003.  His STRs reflect that he was treated for his hernia 
prior to be recalled.  An entry from June 2003 noted that the 
Veteran complained of left groin pain.  Annual health 
certifications from 2003 and 2004 did not report any addition 
problems related to the LIH.  

The Veteran was afforded a VA examination in April 2004.  He was 
noted to have a past history of repairs for his LIH.  He was 
currently doing quite well and worked in a steel mill.  He did 
not limit his lifting except for weights over 70 pounds.  He said 
he was on his feet climbing and walking all day and did not have 
any pain in the inguinal area or limitations except after a 
typical 8-10 hour shift when he would be sore in the LI area.  
The examiner said that the Veteran pointed to his upper scrotum 
at the lower inguinal canal and said this would be painful with 
movements and bending of the waist or leg, especially in the 
evening after a heavy day at work.  He would take Motrin, once or 
twice a week at most for his orthopedic pain or the inguinal pain 
with relief of symptoms.  The Veteran also had a ventral hernia 
repair in 2000 not related to his other problems.  

The examiner reported that the Veteran had a well healed LIH 
repair scar that measured approximately 10 centimeters above the 
left inguinal fold.  She said there were no active hernias on 
examination.  The impression was recurrent left inguinal hernias 
with repeated repairs.

VA treatment records for the period from June 2003 to August 2004 
were received.  An entry from March 2004 noted there was no 
evidence of an inguinal hernia.  

The Veteran submitted records from A. Atassi, M.D., in July 2005.  
The records show outpatient evaluation on February 29, 2000, that 
led to the hernia repair of March 2000.  An entry from April 2005 
noted that the Veteran was referred for evaluation of pain in the 
left groin.  The Veteran complained of left groin pain for the 
last couple of weeks, especially on straining, coughing, and 
sneezing.  He was said to be healthy otherwise.  Dr. Atassi said 
there was no hernia identified on physical examination.  He said 
the Veteran was told that it was most likely a straining of his 
muscle and to observe.  

VA treatment records for the period from March 2004 to March 2006 
contain a March 2006 entry wherein the Veteran reported that a 
caregiver at his employer said that he may have a hernia.  A 
second entry, also in March 2006, said that the Veteran 
complained of pain in left groin area off and on for 2 months.  
He had no pain at rest; it would start when he walked or climbed 
stairs.  No hernia was found on examination as well as no scrotal 
swelling or tenderness.  There was mild tenderness along the 
inguinal canal on the left.  The assessment was left groin pain, 
and he was told to take Tylenol PRN (as needed) and to avoid 
lifting pulling/pushing heavy objects.  The Veteran was to keep 
his appointment with his private surgeon.

Records from Dr. Atassi were received in March 2006.  They were 
duplicative of records previously received except for the 
addition of an entry dated in February 2006.  The Veteran was 
noted to complain of left inguinal pain.  The examination was 
negative for evidence of a recurrent hernia.

The Veteran's disability rating was increased to 30 percent by 
way of a rating decision dated in August 2006.  The effective 
date of the increase was established as June 29, 2003, the day 
after his release from active duty.  

The Veteran submitted a statement in September 2006.  He said 
that he was in pain after a day of work.  He said he was taking 
Coumadin for six months.  Because of this he could not take 
Motrin as usual for pain.  He said he worked in a water treatment 
facility and, although on limited duty, he still had to perform 
his duties as a water treatment operator.  He said he had to 
walk, climb stairs, pull open doors, turn valves, lift with his 
right hand, and bend.  He said the limited duty was only "on 
paper."  

The Veteran was afforded a VA examination in August 2007.  The 
examiner said there were two 2-centimeter (cm) hernia repair 
scars.  One was on the right and one on the left.  The Veteran 
said that the left scar still gave him some discomfort with 
referred pain down to the left scrotal region.  The examiner said 
the scar was non-erythematous, non-adherent, with no wound 
healing problems.  The examiner said there was normal texture to 
the skin with no adherence to underlying tissue, atrophy, 
ulceration or breakdown of skin, elevation or depression of the 
surface, underlying soft tissue damage, inflammation, edema, or 
keloid formation, discoloration of scar compared to normal skin, 
induration or inflexibility of skin near the scar, pain or 
limitation of motion due to scar and no disfigurement.  The 
impression was mildly tender left inguinal hernia scar.  

The Veteran was afforded a VA examination in October 2007.  The 
examiner noted a scar on the left superior abdomen that was 3.5-
cm by .5-cm described as a linear scar.  There was another scar 
on the left inferior abdomen that was 10.5-cm by .3-cm and also 
described as a linear scar.  The examiner said there was normal 
texture of the skin with no adherence to underlying tissue, 
atrophy, ulceration or breakdown of skin.  There was no elevation 
or depression of the surface, or underlying soft tissue damage, 
inflammation, edema, or keloid formation.  He also said there was 
no induration or inflexibility of the skin near the scars, no 
pain or limitation of motion due to the scars and no 
disfigurement.  

The Veteran was afforded a VA examination in September 2008.  The 
Veteran reported soreness in the area of the left inguinal hernia 
that he said was a 10/10.  He also reported pain in the left 
groin since his blood clot.  The examiner said there was 
tenderness over the left inguinal area in the region of the 
inguinal repair.  There was no evidence of any recurrence of 
inguinal hernia.  There was no bulge present and the scar 
[undescribed] was said to be well healed.  The impression was 
left inguinal hernia repair, with residuals of pain in the left 
groin with a mild disability.

The Veteran was afforded a VA examination in January 2009.  He 
noted that he was a water treatment operator and was responsible 
for monitoring 13 stations within a 3-mile radius.  He used a 
truck to travel to the different stations.  In regard to scars 
related to LIH repair, the examiner said there was an 11-cm scar 
in the left iliac fossa from a hernia repair in 1990.  The 
examiner noted a 7-cm scar in the left inguinal area.  This was 
the only scar that was tender.  The examiner said that the scars 
showed no pain or tenderness except the left inguinal scar.  The 
scars were not adherent to underlying tissue and the texture was 
normal.  The scars were stable with no ulceration or breakdown, 
no elevation or depression.  They were superficial and not deep 
without any edema, inflammation, or keloid formation.  The 
examiner said the scars were all pigmented with no induration or 
inflexibility of the skin the area of the scar.  There was no 
limitation of motion or limitation of function caused by the 
scars.

The diagnoses were scar on the left iliac fossa status post 
hernia repair and scar on the left inguinal area status post left 
inguinal hernia.

Analysis

The Veteran's left inguinal herniorrhaphy disability has been 
rated as an inguinal hernia under Diagnostic Code 7338.  38 
C.F.R. § 4.114 (2009).  Under that diagnostic code a 10 percent 
schedular rating is appropriate for a recurrent post-operative 
hernia that is readily reducible and well supported by a truss or 
belt.  A 30 percent rating is applicable where there is a small, 
postoperative recurrent, or unoperated irremediable, not well 
supported by truss, or not readily reducible hernia.  A 60 
percent rating is for consideration where there is a large, 
postoperative, recurrent, not well supported under ordinary 
conditions and not readily reducible hernia, when considered 
inoperable.  Id.

The evidence shows that the Veteran was granted service 
connection for his left hernia disability with a noncompensable 
rating in June 1996, effective from November 1995.  The evidence 
of record at that time established that he had a small, but 
tender, inguinal hernia as per VA treatment records.

The Veteran submitted his claim for an increased rating in May 
2000.  The claim was based on his hernia repair from March 2000.  
He was granted a 100 percent rating under 38 C.F.R. § 4.30 from 
the date of his surgery, March 9, 2000, to April 30, 2000.  His 
noncompensable rating was in effect from May 1, 2000.  He 
disagreed with the noncompensable rating.  

The RO increased the rating for the Veteran's LIH in May 2002.  
He was awarded a 10 percent disability effective from May 1, 
2000.  

The Veteran served on active duty from November 2001 to June 
2003.  He was granted a 30 percent rating in August 2006, 
effective from June 29, 2003, the day after his release from 
active duty.

A review of the medical evidence of record shows that there is no 
recurrence of a left inguinal hernia following the surgical 
repair in March 2000.  The Veteran was treated at his place of 
employment for complaints of groin pain.  He was seen by his 
private physician, Dr. Atassi, on several occasions with 
complaints of groin pain.  Dr. Atassi found no evidence of a left 
inguinal hernia.  The Veteran was also seen at VA with his 
complaints of groin pain but no evidence of a hernia was found.   

The Veteran has made several lay statements wherein he reported 
that he wore a truss that he purchased.  The wearing of a truss 
was not recorded in the various treatment records.  

The Board notes that the Veteran has submitted numerous 
statements attesting to his groin pain and complaining of groin 
pain at his several VA examinations.  The Board notes that the 
Veteran is service connected for several genitourinary-related 
disabilities to include post-operative residuals of left 
varicocele with recurrent epididymitis, and atrophy of the 
testicles.  His treatment records for those disabilities have 
recorded multiple complaints of groin pain that have been 
attributed to those disabilities.  

The evidence of record supports a 10 percent rating from May 1, 
2000.  The Veteran's disability is manifested by his most recent 
repair in March 2000 and subjective complaints of pain.  The 
Veteran received a temporary 100 percent rating that addressed 
the required surgical repair.  The evidence does not demonstrate 
that the Veteran symptoms reflect any of the criteria for a 30 
percent rating at any time prior to June 29, 2003.  

The evidence also does not support a 60 percent rating for the 
Veteran's disability at any time during the pendency of the 
appeal.  The RO granted the 30 percent rating in August 2006 
based on the fact that the Veteran had previously required 
repeated repair.  There was no finding of an existing hernia, 
indeed the medical evidence does not reflect such since the March 
2000 surgery.  The RO considered the Veteran's complaints of pain 
and how it impacted him at work and increased the rating to 30 
percent.  Although there has been tenderness noted at the site of 
the surgical scar, the 30 percent rating awarded by the RO 
included consideration of such a symptom.  Moreover, the Veteran 
did not have pain shown on objective observation.  38 C.F.R. 
§ 4.118, Diagnostic Code 7804.  Consequently, a separate rating 
for scarring is not warranted.

Based on the evidence of record, to include the medical evidence 
and lay statements, there no basis to grant an increase in excess 
of 10 percent prior to June 29, 2003, and no basis to grant an 
increase in excess of 30 percent after June 29, 2003.  The 
Veteran's claim is denied.

C.  Left Shoulder
Background

The Veteran submitted his claim for service connection for pain 
in the left shoulder in November 2003.  He submitted an STR entry 
from June 2003 that noted a complaint of left shoulder pain for 
three months.  The assessment was probable impingement of the 
left shoulder and arthritis.

The Veteran was afforded a VA examination in April 2004.  He said 
he was seen for left shoulder pain in service.  He continued to 
have minor pain that increased with activity and overhead type 
activities.  On examination the Veteran was found to have no 
significant atrophy of the left deltoid.  There were minor 
impingement signs as well with Hawkin's maneuver.  There was a 
normal range of motion without pain.  There was good muscle 
strength and the rotator cuff seemed to be intact.  The examiner 
said the range of motion was the same for both active and passive 
testing.  There was no limitation due to weakness, fatigability, 
incoordination or flare-ups.  The examiner said there was no 
effect on the Veteran's usual occupation.

An x-ray of the left shoulder was interpreted to show mild 
osteoarthritis of the acromioclavicular (AC) joint.  The 
impression was mild AC joint arthritis of the left shoulder with 
mild impingement.  

The RO obtained records from Indiana Surgery and Medical Center 
that were dated in July and September 2003.  The entries noted 
physical therapy for the Veteran's "shoulder" without any 
further details.  

The Veteran was granted service connection for AC joint arthritis 
of the left shoulder with mild impingement in December 2005.  He 
was awarded a 10 percent disability rating.  The effective date 
for service connection and the disability rating was established 
as June 29, 2003.  This was the day after his separation from 
active duty as his claim was received within one year of his 
separation.  

Copies of VA x-ray reports were associated with the claims folder 
in December 2005.  The reports included several for the left 
shoulder.  Reports from May 1997 and September 1997 said that the 
x-rays of the left shoulder were normal.  However, in April 2004 
the report said that there was widening of the left AC joint.  
This was said to be consistent with separation.  The assessment 
was of a left shoulder separation.

Records from USS FMC show that the Veteran was seen for 
complaints of left shoulder pain in January 2006.  A note from 
February 2006 included a referral for further treatment.  The 
Veteran was assessed as having magnetic resonance imaging (MRI) 
evidence of a partial tear of the distal spinatus, a tear of the 
posterior superior glenoid labrum, and bicipital tenosynovitis.

The Veteran submitted his NOD with the 10 percent rating for his 
left shoulder disability in February 2006.  He said that a 
February 2006 MRI and January 2006 x-ray supported his increase.  
He said that he continued to have pain in his left shoulder when 
sleeping, lifting, driving and pushing.  He continued to be 
awakened at night by his pain.  He said he could not take Tylenol 
or Ibuprofen for pain when taking Prevacid.  He said he was told 
this by his VA GI doctor.  Finally, the Veteran asked that he be 
given a 30 percent disability rating.  

Although the Veteran said he could not take his usual pain relief 
medications when taking Prevacid, a VA outpatient entry from 
March 2006 notes that he was specifically prescribed Tylenol for 
left groin pain.  

Records from USS FMC were received in March 2006 that included an 
x-ray report for the left shoulder that was interpreted as 
normal.  However, records were received from Diagnostic 
Specialties Center in March 2006 that included an MRI report for 
the left shoulder.  The report was dated in February 2006.  A 
lifting injury in 2001 was noted and that the Veteran complained 
of pain with limited range of motion especially when lifting 
weights.  The final impressions were of a small intermediate-
high-grade partial tear of the distal supraspinatus tendon with 
no retraction or atrophy.  Suspected degeneration with ill-
defined fraying or tear at the postero-superior glenoid labrum 
and bicipital tenosynovitis.  The records also included an MRI 
report for the right shoulder that showed a large partial 
thickness rotator cuff tear at the insertion of the supraspinatus 
tendon on the greater tuberosity.

The MRI report for the left shoulder does confirm the treatment 
entry from USS FMC also dated in February 2006.  However, there 
is no indication as to when this injury occurred, although the 
MRI report said the Veteran gave a history of an injury in 2001.

Records from Orthopedic Specialists were received in April 2006.  
The records covered a March 2006 consult and a letter report to 
the Veteran's employer's physician, M .E. Masleid, M.D.  The 
consulting physician, A. L. Bonjean, M.D., had the Veteran's 
recent left shoulder MRI and x-rays for review.  The Veteran gave 
a history of injury to his should in 2002 when he fell on some 
ice.  The Veteran said he could not sleep on his left side and 
had difficulty in lifting anything with his arm.  He also said he 
could not leave his arm in one position for any length of time.  
He said that he took Tylenol for pain but it did not help.  
Dr. Bonjean recounted the findings of the MRI and x-rays.  

Dr. Bonjean said that there was tenderness to pressure over the 
anterior aspect of the left shoulder.  There was no tenderness to 
pressure over the AC joint.  He said the Veteran had full forward 
flexion and abduction.  The Veteran did complain of anterior 
shoulder pain with forward flexion.  The biceps and triceps 
reflect were 2+ to sensation to pin pricks intact throughout the 
arm.  The muscle strength of the left hand was said to be intact.  
The impression was impingement syndrome of the left shoulder with 
erosion of the supra spinatus tendon and bicipital tenosynovitis.  
The Veteran was given a cortisone injection with good immediate 
relief of his pain.  The letter to Dr. Masleid recounted the 
above findings and that the Veteran would be seen again in two 
weeks.

The Veteran submitted statements in April and May 2006, 
respectively.  He said that he saw Dr. Bonjean again and he 
recommended continued therapy for the Veteran's left shoulder.  
He also said he was asked about his pain level on a scale from 10 
to 100 and he said he told the doctor it was a 70.  In May 2006 
the Veteran said he was referred to an orthopedic surgeon, M. M. 
Patel, M.D.  He said Dr. Patel recommended that he have surgery 
for a torn rotator cuff injury and some arthritis of his left 
shoulder.  He said surgery would be in July 2006.

A copy of a May 2006 evaluation from Dr. Patel was obtained in 
July 2006.  Dr. Patel noted that the Veteran was right hand 
dominant.  (This fact is noted in the Veteran's STRs).  He said 
the Veteran complained of left shoulder pain since 2003.  He 
noted the prior cortisone injection with some relief but the 
Veteran was seen again for pain.  The Veteran reported that he 
worked in a steel mill and had been doing well because he was in 
the water control room.  The Veteran denied any numbness or 
tingling.  The Veteran related an injury in service in 2003 when 
he was doing a lot of pulling exercise.  He felt a couple of pops 
at that time.  The Veteran reported that he used his right arm to 
turn the valves at work.  

Physical examination of the left shoulder revealed forward 
flexion to 180 degrees.  There was some mild pain with 
supraspinatus testing.  The Veteran was tender over the distal 
acromion and nontender over the AC joint.  There was pain over 
the supraspinatus with crossed adduction.  Dr. Patel said the 
Veteran's motor and sensation were intact to radial, ulnar, 
median and axillary nerves.  The external and internal rotation 
strengths were said to be 5/5.  There was no pain with biceps 
testing.  Dr. Patel referred to the results of the MRI.  His 
impression was left supraspinatus tear and fraying of the labrum.  
He listed a discussion of the Veteran's treatment options and 
that the Veteran would consider them.  They were to plan to 
schedule the surgery and decide on a date.  

The veteran submitted copies of a physical examination report 
from his employer that was dated September 14, 2006.  The 
Veteran's job title was listed as "W. environ operator."  He 
was listed as approved for work with restriction.  The 
restriction involved his left upper extremity and he was to not 
lift over 2 pounds, avoid painful motion, and access to 
stepladder.  He also submitted a release to return to work with 
restriction that was dated on September 13, 2006.  The release 
noted that there were restrictions related to the left shoulder.  

The Veteran submitted another statement in September 2006.  He 
asked that he be given a temporary 100 percent rating for his 
left shoulder disability.  He said that he could not take pain 
medication because of the requirement to take Coumadin.  He said 
he could not perform the normal movements of his left shoulder 
with normal excursion, strength, speed, coordination and 
endurance.  He said he was weak and seriously disabled.  He 
included a duplicate copy of the August 2006 report from TMH that 
showed treatment for the DVT.  He also included a release to 
return to work from USS FMC that was dated September 6, 2006.  
The release noted that the Veteran had been off work and unable 
to work since August 22, 2006, but could return on September 7, 
2006.  This was entirely unrelated to his left shoulder.  The 
limitation was due directly to treatment for the DVT he 
experienced in August 2006.  

The Veteran also submitted a total disability evaluation based on 
individual unemployability (TDIU) even though he was still 
working full time.  The Board notes that the Veteran's claim for 
a TDIU rating was denied in October 2008.  As noted in the 
Introduction, it appears that the Veteran has perfected an appeal 
for this issue from a later claim but it has not yet been 
certified on appeal or forwarded to the Board for action.  All 
evidence of record shows that the Veteran is still employed full-
time.

The Veteran submitted several statements that his DVT was 
discovered as part of the pre-surgical screening that was done.  
He said he was to have surgery on his left shoulder but that this 
was postponed because of the DVT.  The Veteran later submitted a 
copy of letter to him from Dr. Patel that noted he was scheduled 
for outpatient surgery on September 7, 2006.

VA records dated in October 2006 note that the Veteran was unable 
to take NSAIDS because he was on Coumadin.  Tylenol did not help 
to relieve his left shoulder pain.  

The Veteran submitted four statements from his spouse that were 
all dated in January 2007.  The statements relate that the 
Veteran was in pain after his shift at work.  He no longer took 
care of things around the house because of his pain and his 
spouse was left to do the lawn care and take care of the cars.  

Of note in the records from APMA was that the Veteran did not 
list any complaints involving pain in his left shoulder.

The Veteran was afforded a VA examination in August 2007.  In 
regard to the left shoulder, the Veteran said he had noticed some 
decreased activity.  He had had several subacromial injections 
for impingement-type symptoms, which had given him temporary 
relief.  There was no surgical intervention.  The examiner said 
there was a normal range of motion for the left shoulder 
[compared] to the right shoulder without pain.  He said the 
rotator cuff musculature appeared to be intact; however, there 
was some mild positive impingement at testing.  X-rays of the 
left shoulder showed type 2 acromion and some mild degenerative 
changes seen at the acromioclavicular (AC) joint.  The examiner's 
impression was of stable left shoulder impingement.

The examiner said that there was no additional functional 
impairment due to pain, weakness, fatigability, incoordination, 
or flare-ups and no assistive devices.  There were no 
incapacitating episodes or radiation of pain, and no neurologic 
findings or effect on the usual occupation of daily activities.

VA records for the period November 2007 to April 2008 show that 
the Veteran was seen for possibly being released to return to 
work on April 1, 2008.  The examiner noted that the Veteran's 
private doctor had placed him on the light duty restriction and 
should be seen for any change.  The Veteran said he did that but 
was told that, since his left shoulder was service connected, he 
should be cleared by VA.  The examiner noted the results of an 
MRI report provided by the Veteran and a list of prior 
restrictions at work.  On physical examination the Veteran was 
noted to have good range of motion that was unremarkable.  The 
assessment was left shoulder pain.  The examiner added the 
results of a left shoulder x-ray that was interpreted as normal.  

The Veteran submitted the results of a May 2008 MRI of his left 
shoulder.  The impression was that there was mild tendinopathy 
and a focal partial thickness tear involving the undersurface of 
the distal left supraspinatus tendon.  There were moderate 
hypertrophic changes of the left acromioclavicular joint.  This 
finding in combination with a type II acromion does cause some 
mass effect on the myotendinous junction of the supraspinatus 
tendon and in a proper clinical setting may cause an impingement 
syndrome.  The report also noted mild subacromial-subdeltoid 
bursitis.

The Veteran was afforded a VA examination in September 2008.  He 
complained of left shoulder pain that he said was 7/10.  He said 
he used a filter press machine at work and when it vibrated, it 
caused pain in the left shoulder.  The Veteran described the pain 
as sharp and he used Ben Gay for relief.  He was right handed.  
The Veteran said his left shoulder problem almost cost him his 
job.  He said he was off work for six months and was unemployed 
during this time.  He said when he attempted to return to work, 
his employer would not take him with a left shoulder problem so 
he had to declare that his shoulder was alright.  The Veteran 
said he could lift about 5 pounds.  He drove with his left hand 
on the steering wheel.  

The Veteran said his daily activities were restricted.  He said 
he could hardly mow the lawn.  The examiner said the left 
shoulder was tender, warm and swollen.  There was no deformity, 
effusion, or crepitus.  The muscles showed no atrophy.  The 
strength was 3/5 for the left shoulder.  The active and passive 
movements were the same against gravity and resistance.  The 
Veteran had flexion from 0 to 90 degrees limited by pain and 
stiffness at 90 degrees.  He had abduction from 0 to 90 degrees 
with pain and stiffness at 90 degrees.  The examiner reported 
adduction of 0 to 10 degrees that was limited by pain and 
stiffness at that point.  The examiner stated that there was no 
additional functional impairment due to pain, pain on repeated 
use, weakness, fatigue, lack of endurance, incoordination, or 
flare-up.  The examiner also referenced the results of the MRI of 
May 2008 in his report.  The impression was left supraspinatus 
tendon tear and bursitis, described as a moderate disability.

The Veteran's disability rating was increased to 20 percent by 
way of a rating decision dated in October 2008.  The effective 
date for the increase was said to be December 7, 2007.  The RO 
determined the Veteran had submitted a claim for an increase on 
that date.  The RO did not address the fact of a prior NOD to the 
initial disability rating of December 2005.

The February 2009 assessment from Dr. Spence also included an 
examination of the Veteran's shoulder.  Dr. Spence said the 
Veteran's shoulders had passive and active range of motion of 180 
degrees bilaterally, with no tenderness at AC joints.  Neers and 
Hawkins were negative for impingement.  

The March 2009 examination by Dr. Shepherd reported that the 
range of motion of both upper extremities was normal.  

Analysis

The Veteran's left shoulder disability was originally rated as 10 
percent disabling from June 29, 2003, under Diagnostic Code 5010 
for traumatic arthritis.  The Schedule for Rating Disabilities 
directs that disabilities involving traumatic arthritis are to be 
evaluated as degenerative arthritis under Diagnostic Code 5003.  
See 38 C.F.R. § 4.71a (2009).  Diagnostic Code 5003 provides that 
degenerative arthritis established by x-ray findings will be 
rated on the basis of limitation of motion under the appropriate 
diagnostic codes for the specific joint or joints involved.

The initial 10 percent rating was based on x-ray findings of 
arthritis of the left shoulder at the time of the VA examination 
in April 2004.  There was pain with motion but such a limitation 
of motion to warrant a compensable disability rating.

The Veteran's left shoulder disability was increased to 20 
percent in October 2008, effective from December 7, 2007.  The 
diagnostic code was changed to Diagnostic Code 5201, relating to 
limitation of motion of the arm, the minor arm in this case.  See 
38 U.S.C.A. § 4.71a (2009).  Under Diagnostic Code 5201, a 20 
percent disability rating is warranted, for the minor arm, where 
the motion is limited to midway between the side and shoulder.  A 
20 percent rating is also for consideration if the motion is 
limited to 25 degrees from the side.  A 30 percent rating is for 
application where the arm is limited to motion to 25 degrees from 
the side.  Id.

The Board notes that ranges of motion for the shoulder are 
provided in 38 C.F.R. § 4.71, Plate I (2009).  Normal flexion and 
abduction is from 0 to 180 degrees.  Normal external and internal 
rotation is from 0 to 90 degrees.

A higher rating is not available under Diagnostic Code 5003.  In 
order to be considered for a higher rating the rating criteria 
from one of the other diagnostic codes related to the shoulder 
must be satisfied.

As noted, the Veteran's disability rating was increased to 20 
percent under Diagnostic Code 5201.  This was done as a result of 
the findings from the limited motion reported at the time of the 
VA examination in September 2008.  As with the Veteran's 
lumbosacral strain rating, the RO erroneously determined that the 
Veteran had submitted a claim for an increase on December 7, 
2007.  (He had an active NOD in place with the rating decision of 
December 2005.)

A review of the evidence does not reflect that the Veteran met 
the criteria for a 20 percent rating under Diagnostic Code 5201 
at any time.  His ranges of motion were reported as meeting a 
full range as indicated by Plate I or described as normal.  This 
was reported by way of VA examinations in April 2004 and August 
2007 as well by private examinations by Dr. Bonjean , Dr. Patel, 
Dr. Spence, and Dr. Shepherd.  The September 2008 VA examination 
results, the basis for the higher rating, demonstrated flexion 
and abduction to 90 degrees, or level with the shoulder.  Thus a 
higher rating prior to December 7, 2007, or after, is not in 
order under Diagnostic Code 5201.

The Board has also considered the Veteran for a higher evaluation 
under Diagnostic Code 5200 for disabilities involving ankylosis 
of the scapulohumeral articulation.  There is no evidence of 
ankylosis in the left shoulder joint to warrant consideration of 
a disability evaluation under Diagnostic Code 5200 at any time 
during the pendency of this appeal.  

Likewise the Board has considered the Veteran's claim for a 
higher rating under Diagnostic Code 5202 involving impairments of 
the humerus.  Under Diagnostic Code 5202 a 20 percent rating is 
warranted for recurrent dislocation at the scapulohumeral joint 
with infrequent episodes and guarding of movement only at arm 
level.  A 30 percent rating is for consideration where there are 
frequent episodes of dislocation and guarding of all arm 
movements.

There was one VA x-ray report from April 2004 that was 
interpreted to show a left shoulder separation.  However, this 
finding was not repeated on the several other x-rays or MRI 
studies done to assess the Veteran's left shoulder.  The evidence 
does not show a recurrence at any point, nor was the one time x-
ray results substantiated by clinical assessment.  A higher 
rating under Diagnostic Code 5202 is not for consideration at any 
time during the pendency of the appeal.  

Finally Diagnostic Code 5203 pertains to disabilities involving 
impairment of the clavicle or scapula.  38 C.F.R. § 4.71a.  Under 
Diagnostic Code 5203 a 20 percent rating is the maximum schedular 
rating for an impairment of the minor arm.  Such a rating is for 
dislocation or nonunion with loose movement of the scapula.  Id.  
There is no evidence of record to show any impairment of the 
scapula, to include dislocation or nonunion, to justify a higher 
rating under Diagnostic Code 5203 at any time during the pendency 
of the appeal.

The award of the 20 percent rating from December 7, 2007, 
provided the Veteran with the greater benefit in this case as it 
was not factually ascertainable that his symptoms satisfied the 
criteria for a 20 percent rating under Diagnostic Code 5201 until 
he was examined in September 2008.

As the Veteran's left shoulder disability is evaluated based on 
limitation of motion, the Board must also consider 38 C.F.R. §§ 
4.40, 4.45, 4.59 and DeLuca.   

In that regard, as with his lumbosacral spine disability, the 
Veteran has made numerous statements attesting to the pain he 
experiences in his left shoulder.  He has repeatedly asserted 
that it affects his ability to sleep and perform tasks around the 
house.  A review of the VA examinations of April 2004, August 
2007, and September 2008 show that the Veteran had good muscle 
strength, and except for September 2008, a full or normal range 
of motion.  Each of those examiners found no additional 
functional impairment due to pain, weakness, fatigability, 
incoordination, or flare-ups.  The Veteran was noted to have some 
decreased strength in September 2008 but there was no atrophy.

The various private treatment records also do not reflect 
evidence of additional disability due to pain, weakness, 
fatigability, incoordination or flare-ups.  The Veteran's 
statements were that his symptoms were significant all of the 
time.  Yet, the objective medical evidence of record does not 
show limitation of motion or strength that is commensurate with 
his subjective symptoms.  The Veteran was to have a surgical 
repair of the torn tendon in his left shoulder but this was 
canceled due to the development of the unrelated DVT.  Even with 
consideration of the impairment from the torn tendon, the 
objective evidence demonstrated full or normal range of motion at 
that time (September 2006).  The only evidence noting a change in 
the range of motion was the examination of September 2008.  The 
Veteran's disability rating was increased accordingly.

The evidence does not support a higher rating at any time under 
38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca.

D.  Gerd
Background

The Veteran submitted his claim for service connection in 
November 2003.  He noted that he had been diagnosed with GERD 
during his period of active duty from November 2001 to June 2003.  
He felt that several medications that he took for pain for other 
disorders had caused him to suffer from heartburn.

He submitted several STR entries in support of his claim.  One, 
dated in June 2003, noted that the Veteran had been diagnosed 
with GERD.  This was mentioned in regard to medications 
prescribed to treat left shoulder pain such that if 
gastrointestinal (GI) problems occurred, the medication could be 
changed.  

The Veteran was afforded a VA examination in April 2004.  He said 
he had been treated for his GERD for the past 4 years.  The 
Veteran said he had received treatment from service doctors and 
his private physician.  He took Aciphex and Mylanta for his 
symptoms.  He had modified his eating schedule and this had 
reduced his need for extra Mylanta to two days a week from every 
day.  He had an esophagogastroduodenoscopy (EGD) scheduled with 
his private physician in May 2004.  He denied any worsening of 
his reflux, vomiting, or blood in his stool.  He said his acid 
reflux had increased in the past 18 months and that was when his 
Aciphex was started.  He denied any weight gain.

The examiner provided an impression of GERD that was not due to 
nonsteroidal anti-inflammatory use nor caused by analgesics.  

The Veteran submitted a copy of an EGD report from D. B. Hurwich, 
M.D., of Internal Medicine Associates, in November 2004.  The EGD 
was done in May 2004.  The impression was Barrett's Esophagus, 2-
cm hiatal hernia, and moderate gastritis.  An accompanying GI 
pathology report said that the results of the EGD was that the 
Veteran had GERD.  

VA treatment records for the period from June 2003 to August 2004 
noted that the Veteran was taking medications to treat symptoms 
of his GERD.  

The Veteran was granted service connection for GERD in December 
2005.  He was awarded a 10 percent disability rating.  The 
effective date for service connection and the disability rating 
was established as June 29, 2003.  This was the day after his 
separation from active duty as his claim was received within one 
year of his separation.  

Records from USS FMC show treatment for GERD in January 2006.  
They also include a copy of the EGD report from Dr. Hurwich that 
was dated in February 2006.  The EGD showed mild gastritis and a 
hiatal hernia.  

The Veteran submitted his NOD with the 10 percent rating for his 
GERD in February 2006.  He included excerpts of the latest EGD 
from February 2006.  He said he had changed his lifestyle as 
demonstrated by a weight loss from 217 to 198, changing his 
eating habits (he referred to his shift work as requiring eating 
discipline), and cutting back on his caffeine intake.  He said he 
continued to have pain in his chest that would travel to his left 
arm and shoulder.  He also had regurgitation.  He said his doctor 
at USS FMC had recommended Nexium but this was not "in the 
clinics pharmacist system."  Presumably this meant the VA 
system.  He purchased the medication on his own.  The Veteran 
asked that he be given a 50 percent rating so that he could 
afford to buy the medication.  

VA records for the period from March 2004 to March 2006 were 
associated with the claims folder.  They noted continued 
treatment for the Veteran's GERD-related symptoms.  The several 
entries also provided notations on the Veteran's weight.  An 
entry from March 30, 2004, recorded his weight as 209.8 pounds.  
An entry from August 2004 noted his weight as 210 pounds.  In 
November 2005 his weight was reported as 205 pounds.  In March 
2006 his weight was recorded as 206 pounds.  

The Veteran submitted a statement in September 2006 wherein he 
said he was hospitalized for a blood clot.  He said he 
experienced heartburn while hospitalized that was so bad he asked 
for an electrocardiogram (EKG).  He said the pain from his 
heartburn was in his left chest, shoulder and arm.  The record 
from TMH reflects a weight of 198 at the time of admission.

In another statement from September 2006 the Veteran said that he 
had worked to change his lifestyle.  He reported that his weight 
had come down from 217 to 198.  He also said that he worked 
rotating 8-hour shifts and this required discipline for eating 
and sleeping.  He noted he had joined a local gym and had cut 
back on his caffeine.  The Veteran said he had tried to get a day 
shift job but was not successful.  He said if he could get a 100 
percent rating he would not have to work and could get an 
education.  He had been approved for vocational rehabilitation 
benefits but could not attend classes because of shift work and 
mandatory overtime.  He said the moment his supervisor found out 
that he was attending classes he was almost positive he would be 
put on mandatory overtime.  He noted that he had conflicts with 
his medication used to treat his GERD as it was recommended that 
he not take Tylenol and Motrin for the pain in his groin and left 
shoulder.

VA treatment records dated in September and October 2006, 
respectively, note treatment for unrelated disorders.  The 
Veteran's weight was recorded as 209 pounds on September 18, 
2006, and 211 pounds on October 19, 2006.

The Veteran submitted a statement in February 2007 wherein he 
asked that his disability rating be increased to 30 percent.  He 
said that medications upset his stomach and he felt that his GERD 
was getting worse.  

Records from APMA included a complete physical examination with 
the initial visit of February 2007.  The Veteran complained of 
symptoms of reflux but denied any vomiting, constipation, or 
diarrhea.  

VA records for the period from June 2003 to September 2007 were 
associated with the claims folder.  Most of the entries are 
duplicative of records already in the claims folder.  However, 
the Veteran was seen on several occasions for complaints 
associated with his GERD.  His weight was also recorded on 
several entries to include in March 2007 when it was noted to be 
218 pounds.  A MRI report from April 2007 listed the Veteran's 
weight as 215 pounds.  By contrast, a physical therapy entry from 
July 2007 gave the Veteran's weight as 198 pounds.  Then, at the 
time of his August 2007 VA examinations, the Veteran's weight was 
listed as 203 pounds.  

The Veteran submitted private treatment records from a number of 
sources in December 2007.  Some of the records were from TMH and 
dated in November 2007.  The Veteran was noted to weigh 214 
pounds on admission on November 15, 2007.  

VA treatment records from October 2007 to February 2008 noted 
that the Veteran continued to take medication for his GERD 
symptoms.  An entry from November 2007 recorded his weight as 221 
pounds.  A neurology clinic note from December 2007 recorded his 
weight as essentially the same, 221 pounds.  A GI clinic note 
from January 25, 2008, reviewed prior EGD reports and the results 
for CT of abdomen and pelvis.  The Veteran was noted to have 
longstanding heartburn and acid regurgitation and had developed 
progressive solid and liquid dysphagia over the past year.  The 
doctor said it was possibly peptic stricture related to chronic 
reflux.  She said she would also consider eosinophilic 
esophagitis (EE).  The Veteran was to have another EGD and return 
to the clinic.  The Veteran's weight was noted as 214 and that he 
had weighed 224 pounds in November.  The weight loss was said to 
be intentional.  

A VA interdisciplinary note of April 30, 2008, reported the 
Veteran's weight as 221 pounds.  

The Veteran was afforded a VA examination in September 2008.  In 
regard to his GERD, he complained of daily heartburn after every 
meal.  The examiner noted an EGD had shown a hiatal hernia with 
superficial esophagitis and mild gastritis.  The Veteran took 
Omeprazole twice a day and Maalox and Tums as needed.  He avoided 
certain foods and beverages.  He said he regurgitated about three 
times a week and vomited about twice a month.  He also reported 
dysphagia with solid food but not with liquid.  He also had 
epigastric pain.  The Veteran reported that work and daily 
activities of living were reduced because of his heartburn.  The 
impression was GERD of moderate severity.

The Veteran was afforded a VA examination in January 2009.  He 
said that he experienced heartburn after meals.  His Omeprazole 
usually helped relieve the heartburn.  He said he usually had a 
bad taste in his mouth.  He said this occurred during the day and 
at night and there were times when he would choke.  No particular 
food would create it but usually after every meal no matter what 
the meal was he would get some heartburn.  The diagnosis was 
GERD.

A VA treatment entry from May 2009 noted that the Veteran 
complained of a bad taste in his mouth despite his use of Nexium.  
The Veteran's weight was noted as 234 pounds.  

Analysis

In this case, the Veteran's disability rating is governed by the 
regulation found at 38 C.F.R. § 4.114 and the rating criteria 
provided for the several diagnostic codes used to evaluate 
disabilities of the digestive system.  Section 4.114 prohibits 
the assignment of separate disability ratings for disabilities 
evaluated under Diagnostic Codes 7301 to 7329, 7331, 7342, and 
7345 to 7348.  The regulation instructs that a single evaluation 
will be assigned under the diagnostic code that reflects the 
predominant disability picture, with elevation to the next higher 
evaluation where the severity of the overall disability warrants 
such elevation.

The Board notes that the assignment of a particular diagnostic 
code to evaluate a disability is "completely dependent on the 
facts of a particular case."  See Butts v. Brown, 5 Vet. App. 
532, 538 (1993).  

The Veteran's service-connected GERD is currently rated as 10 
percent disabling under Diagnostic Code 7346.  38 C.F.R. § 4.114 
(2009).  Diagnostic Code 7346 relates to disabilities involving a 
hiatal hernia and the Veteran's GERD has been rated as analogous 
to a hiatal hernia.  38 C.F.R. § 4.20 (2009).  Diagnostic Code 
7346 provides a 10 percent rating when the evidence shows two or 
more of the symptoms for the 30 percent evaluation of less 
severity.  A 30 percent rating is warranted when there is 
persistently recurrent epigastric distress with dysphagia, 
pyrosis, and regurgitation, accompanied by substernal or arm or 
shoulder pain, productive of considerable impairment of health.  
A 60 percent rating contemplates symptoms of pain, vomiting, 
material weight loss and hematemesis or melena with moderate 
anemia; or other symptom combinations productive of severe 
impairment of health.  

The Veteran was granted an initial rating of 10 percent in 
December 2005.  His symptoms were manifested by EGD evidence of a 
hiatal hernia and heartburn.  The symptoms remained essentially 
the same until an increase was documented by way of a VA 
treatment record of January 25, 2008, that noted the Veteran 
reported progressive solid and liquid dysphagia over the past 
year.  This was in addition to his longstanding symptoms of 
heartburn and regurgitation.  The Veteran also continued to take 
prescription medication to treat his symptoms of reflux.  The 
Board finds that the treatment entry denotes symptomatology 
consistent with a 30 percent rating from January 25, 2008.  This 
is the earliest date that an increase in symptomatology is 
ascertainable.

The evidence of record does not establish that the Veteran has 
ever experienced material weight loss and hematemesis or melena 
with moderate anemia.  The VA and private records do not reflect 
a weight loss associated with his GERD.  He had a very brief 
period of intentional weight loss.  The multiple citations to his 
weight in the medical records show that he did not experience a 
weight loss due to symptoms related to his GERD.

Consideration has been given to assigning a higher rating under 
another GI diagnostic code, Diagnostic Codes 7301 to 7329, 7331, 
7342, and 7345 to 7348, for the period prior to January 25, 2008, 
and after.  However, the evidence of record does not establish 
the presence of the different disabilities identified in those 
diagnostic codes such as adhesions of the peritoneum, ulcers, 
problems associated with the liver or gall bladder, irritable 
colon syndrome, ulcerative colitis, or diverticulitis.  He has 
had no surgeries affecting the stomach or intestines.  There is 
no evidence of tuberculosis peritonitis or pancreatitis.  

The two EGD studies of 2004 and 2006 did note evidence of 
gastritis.  The April 2004 noted moderate gastritis in the antrum 
while the February 2006 report indicated mild gastritis.  
Diagnostic Code 7307 relates to disabilities involving 
hypertrophic gastritis that is identified by gastroscope.  The 
criteria provides for a 30 percent rating for chronic gastritis 
manifested by multiple small eroded or ulcerated areas and 
symptoms.  A 60 percent rating is for application where there is 
chronic gastritis with severe hemorrhages, or large ulcerated or 
eroded areas.  

The evidence of record does not reflect gastritis manifested by 
symptoms consistent with a 30 percent rating prior to January 25, 
2008.  Further, the evidence clearly does not show symptoms 
consistent with a 60 percent rating after that date.  There is no 
basis for a higher rating at any time during the pendency of the 
appeal under Diagnostic Code 7307.

E.  SMC

The Veteran has been awarded SMC for loss of use of a creative 
organ.  See 38 U.S.C.A. §  1114 (West 2002 & Supp. 2010).  This 
is based on the grant of service connection for erectile 
dysfunction, a separate service-connected disability.  Because of 
the erectile dysfunction, the RO also granted the Veteran 
entitlement to the SMC payment now challenged.  

Congress sets the disability compensation rate by statute.  See 
generally Sandstrom v. Principi, 358 F.3d 1376 (Fed. Cir. 2004).  
When the rates are set, they have a specific effective date and 
remain in effect until they are changed.  The Veteran's many 
statements demonstrate that he believes he should be compensated 
at a higher rate based on the impact of loss of use.  He is not 
contending that a different level of SMC is applicable to his 
case.  

The Veteran is seeking a higher amount of compensation than is 
authorized by Congress.  His argument is therefore without merit.  
See Sabonis v. Brown, 6 Vet. App. 424 (1996).

F.  Extraschedular Rating

The Board has also considered whether the Veteran's disabilities 
are so exceptional as to require consideration of an 
extraschedular rating.  In reviewing this aspect of the case, the 
Board notes that the Veteran has submitted a significant number 
of written, typed, and electronic statements attesting to the 
severity of his symptoms.  He has alleged that they have 
interfered with his work, that they have caused him to miss out 
on promotions, and that they have resulted in his receiving 
disparate treatment at work.  

In Thun v. Peake, the Court held that determining whether a 
claimant is entitled to an extraschedular rating is a three-step 
inquiry.  22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 
(Fed. Cir. 2009).  The first step is to determine whether the 
"evidence before VA presents such an exceptional disability 
picture that the available schedular evaluations for that 
service-connected disability are inadequate."  Id.  If the 
adjudicator determines that this is so, the second step of the 
inquiry requires the adjudicator to "determine whether the 
claimant's exceptional disability picture exhibits other related 
factors," such as marked interference with employment or 
frequent periods of hospitalization.  Id. at 116.  Finally, if 
the first two steps of the inquiry have been satisfied, the third 
step requires the adjudicator to refer the claim to the Under 
Secretary for Benefits or the Director of the Compensation and 
Pension Service for a determination of whether an extraschedular 
rating is warranted.  Id. 

The Veteran submitted a statement in January 2004 that related to 
a debt he owed in regard to an overpayment of military pay.  He 
noted that he had returned to his employment at USS.  His 
previous job was closed and he was moved to another job.  He said 
he being trained for yet another job at the plant.  He did not 
relate any change in jobs was due to his medical 
disorders/disabilities.  

The Veteran submitted a statement in February 2006 wherein he 
listed his problems at work.  He said he had to work rotating 
shifts and this made it difficult for him to sleep and eat 
properly and created stress in his life.  He said his co-workers 
all had degrees and they did not have to do heavy lifting or do 
shift work.  He asked that his disability rating be increased so 
he could be paid to attend school.  He noted that his employer 
would allow him to take education leave if he had a 50 percent 
disability rating. 

The Veteran submitted additional statements wherein he requested 
that he be given a 100 percent rating so that he would not have 
to work and could go to school.  The Veteran reported that he was 
participating in a VA vocational rehabilitation program in 
September 2006.  In December 2006 he noted that he wanted to 
enroll in four courses for January 2007 but was being harassed by 
his supervisor.  He asked that he be given a 100 percent rating 
so he could take the classes because he could not do so while 
doing shift work.  He also submitted statements wherein he 
informed that he was taking classes but was worried that if his 
supervisor found out he would be placed on mandatory overtime.  

In addition, the Veteran has submitted numerous statements 
regarding his inability to continue to work due to his several 
disabilities.  However, he has maintained his employment 
throughout the duration of the more than 10 years of this appeal.  
He has submitted a number of statements wherein he alleges he has 
been denied the opportunity to work overtime, as opposed to his 
fear that he could be made to work mandatory overtime, because of 
discrimination based on his race and/or his disabilities.  He has 
even submitted a complaint to a Federal agency in that regard.  

He has contended that he has been denied advancement 
opportunities but he has not supported his contentions with 
evidence.  In December 2006 he submitted two job position 
descriptions that he said he was not selected for, but both of 
the jobs were outside his area of expertise of water treatment.  
Both involved shift work and would not be different from his 
current shift work status.  The jobs related to electrical work 
described as maintenance technical electrical learner.  The 
Veteran has submitted no evidence that he had the requisite 
background for either position.  Both announcements required that 
the applicant be able to achieve a passing level score for a 
level 3 learner.  The two job announcements did state that there 
could be no walking, climbing, or lifting restrictions.  Further, 
the Veteran has submitted the job requirements for his current 
position in the water treatment plant and knowledge of electrical 
work is not an element of his job.

In a statement submitted in February 2007 the Veteran complained 
of having to take time off from work to drive himself to 
appointments.  He noted that this cost him money because he did 
shift work and attended classes.  

The Veteran did have a period where he was unable to work in 
August 2006 that was entirely related to his development of a 
DVT.  He had a second period from November 2007 to April 2008.  
He suffered a pulmonary emboli in November 2007 and was not 
cleared to return to work for several months.  As reported by his 
employer he was paid disability pay during that period.  He was 
not unemployed as he informed a VA examiner.

The Veteran has submitted several claims for a TDIU rating while 
continuing to be employed full time.  He sought SSA disability 
benefits but was denied.  Two primary medical conditions at that 
time were his DVT and pulmonary emboli - two nonservice-connected 
disorders.  In a statement to his Congressional representative in 
July 2010, the Veteran said he was in the process of quitting his 
job due to his disabilities.  He provided nothing to support that 
although he submitted additional evidence directly to the Board 
after that date. 

In this case, the schedular criteria are adequate to address the 
Veteran's level of disability for his lumbosacral strain, left 
shoulder AC joint arthritis with mild impingement, residuals of a 
left inguinal hernia and GERD.  He has been thoroughly examined 
and the objective findings demonstrate that his subjective 
symptoms are not supported.  The private treatment records also 
do not support his contentions of limitations.  They do 
acknowledge his complaints of pain and attempts were made to 
treat his pain.  However, the overall status of his disabilities 
is adequately assessed by application of the rating criteria.  

In light of this finding there is no requirement to proceed with 
the next two steps in consideration of an extraschedular rating.  
Thun, 22, Vet. App. at 116.

III.  Reasonable Doubt

The Board has considered the doctrine of reasonable doubt, but 
finds that the record does not provide an approximate balance of 
negative and positive evidence on the merits.  The Board is 
unable to identify a reasonable basis for granting service 
connection for DVT, increased ratings for lumbosacral strain and 
left inguinal hernia, higher rating for left shoulder AC joint 
arthritis with mild impingement, or higher ratings other than 
already established for GERD.  Gilbert v. Derwinski, 1 Vet. App. 
49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 
3.102 (2009).  The Board notes that 38 C.F.R. § 3.102 was amended 
in August 2001, effective as of November 9, 2000.  See 66 Fed. 
Reg. 45,620-32 (Aug. 29, 2001).  However, the change to 38 C.F.R. 
§ 3.102 eliminated the reference to submitting evidence to 
establish a well-grounded claim and did not amend the provision 
as it pertains to the weighing of evidence and applying 
reasonable doubt.  Accordingly, the amendment is not for 
application in this case.

IV.  Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in 
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 
2010)), and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2009), provides that VA will assist a claimant in 
obtaining evidence necessary to substantiate a claim.  They also 
require VA to notify the claimant and the claimant's 
representative, if any, of any information, and any medical or 
lay evidence, not previously provided to the Secretary that is 
necessary to substantiate the claim.  As part of the notice, VA 
is to specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the evidence 
is to be provided by the claimant and which part, if any, VA will 
attempt to obtain on behalf of the claimant.

(The Board notes that 38 C.F.R. § 3.159 was revised, effective 
May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).  The 
amendments apply to applications for benefits pending before VA 
on, or filed after, May 30, 2008.  The amendments, among other 
things, removed the notice provision requiring VA to request the 
veteran to provide any evidence in the veteran's possession that 
pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

The VCAA notice requirements apply to all five elements of a 
service connection claim.  These are: (1) veteran status; (2) 
existence of a disability; (3) a connection between a veteran's 
service and the disability; (4) degree of disability; and (5) 
effective date of the disability.  Dingess v. Nicholson, 19 Vet. 
App. 473 (2006).

VA's General Counsel has held that VCAA notice is not required 
for downstream issues.  VAOPGCPREC 8-2003.  In addition, the 
Court has held that "the statutory scheme contemplates that once 
a decision awarding service connection, a disability rating, and 
an effective date has been made, § 5103(a) notice has served its 
purpose, and its application is no longer required because the 
claim has already been substantiated."  Dingess, 19 Vet. App. at 
490.  In this case, the Veteran's claim for service connection 
for a left shoulder disability and GERD disability was granted 
and an effective date was assigned in the December 2005 rating 
decision on appeal.  Further, Board has granted service 
connection for a sinus/rhinitis disorder, respiratory disorder, 
and burn scar of the right side of the face.  

The Veteran did not express any specific rating or effective date 
in association with his claim for the above issues.  As such, no 
additional notice is required because the purpose that the notice 
is intended to serve has been fulfilled.  See Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 
21 Vet. App. 112 (2007).  

The Board notes that the Veteran's case is unique in that it 
involves a number of issues that were raised at different times.  
The RO wrote to him on multiple occasions to provide him with the 
notice required for service connection and for increased ratings 
for his left inguinal hernia and lumbosacral strain disabilities.

In that regard, the Veteran was issued notice letters for his 
left inguinal hernia disability beginning in September 2003.  
Another was issued in February 2004 and again in April 2005.  An 
initial letter for an increased rating for his lumbosacral strain 
disability was issued in February 2007.  

The Veteran was issued a letter to provide the notice required by 
the Court's decision in Vazquez-Flores v. Peake, 22 Vet. App 37, 
43 (2008), vacated and remanded by 580 F.3d 1270 (Fed. Cir. 
2009), in May 2008.  The left inguinal hernia was addressed at 
that time.  A second Vazquez-Flores letter was issued in June 
2009.  This letter included both the left inguinal hernia and 
lumbosacral strain issues.  

The Veteran's left inguinal hernia disability was readjudicated 
in February 2009 and he was issued a SSOC at that time.  The 
Veteran's lumbosacral spine disability was readjudicated in 
August 2009 and a SSOC issued that provided a reasons and bases 
for the RO's rating action, to include the recent grant of a 40 
percent rating.

The Veteran was issued a VCAA letter in regard to his claim for 
service connection for DVT in April 2008.  The Veteran was 
advised of the evidence required to substantiate his claim for 
service connection.  He was advised of the information required 
from him to enable VA to obtain evidence on his behalf, the 
assistance that VA would provide to obtain evidence on his 
behalf, and that he should submit such evidence or provide VA 
with the information necessary for VA to obtain such evidence on 
his behalf.  The RO informed the Veteran on the types of evidence 
he could submit that would support his claim for service 
connection.  He was asked to submit any medical evidence that he 
had.  The letter informed the Veteran of the evidence of record.  

The DVT notice letter was issued after the initial unfavorable 
adjudication of September 2007.  However, the Veteran's claim was 
re-adjudicated in February 2009 and a SOC issued at that time.  
The claim was re-adjudicated again in August 2009.  The Veteran 
was issued a SSOC at that time.  

The Veteran has not disputed the contents of the VCAA notice in 
this case.  He was afforded a meaningful opportunity to 
participate in the development of his claim.  From the outset he 
demonstrated actual knowledge of what was required to establish 
service connection as evidenced by his statements as he provided 
general information regarding DVTs, his correspondence with 
United Airlines, and a recap of his military flights in support 
of his claim for service connection.  He submitted a significant 
number of statements regarding his symptoms related to his left 
inguinal hernia and lumbosacral strain and made specific 
arguments as to how the evidence supported increased ratings.  He 
identified sources of evidence for the RO to obtain and submitted 
a hundreds of pages of evidence by way of medical records and 
statements in support of his claim.  He also submitted responses 
on forms provided on the several VCAA notice letters.  Thus, the 
Board is satisfied that the duty to notify requirements under 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.  

The Board also finds that VA has adequately fulfilled its 
obligation to assist the Veteran in obtaining the evidence 
necessary to substantiate his claim.  The evidence obtained 
includes the Veteran's STRs, some service personnel records, VA 
treatment records, private medical records from several sources, 
and statements from the Veteran.  The Veteran was afforded a 
number of VA examinations in the development of his claim.  He 
elected not to have a hearing in his case.  

The Board has considered whether a VA examination for the claimed 
DVT was required in this case under the duty to assist provisions 
codified at 38 U.S.C.A. § 5103A(d) and by regulation found at 38 
C.F.R. § 3.159(c)(4).  See McLendon v. Nicholson, 20 Vet. App. 
79, 81 (2006).  The duty to assist under 38 U.S.C.A. § 5103A(d) 
and 38 C.F.R. § 3.159(c)(4) is triggered when it is necessary to 
obtain an examination to make a decision in the case.  Factors to 
consider whether an examination is necessary include whether 
there is evidence of a current disability, and whether there is 
evidence that the disability may be associated with the veteran's 
military service, but there is not sufficient medical evidence to 
make a decision on the claim.  Id.  

The evidence of record is such that the duty to obtain a medical 
examination is not triggered in this case.  The Veteran contends 
that he developed a DVT because of flying that he did during his 
active and Reserve service.  He has provided his own lay 
statements and general medical evidence in support of his claim.  
The evidence of record demonstrates no indication of a DVT during 
the Veteran's military service.  He developed the DVT while on a 
commercial flight after his retirement from service.  He has not 
provided any medical evidence that links his DVT to any incident 
of service.  Thus, there is no requirement to obtain a VA medical 
examination for the Veteran's DVT in this case.  See McLendon, 20 
Vet. App. at 85-86; see also Wells v. Principi, 326 F.3d 1381 
(Fed. Cir. 2003) (a veteran is required to show some causal 
connection between his disability and his military service).  

The Veteran was afforded VA examinations.  The examinations were 
adequate upon which to base a determination as they fully address 
the rating criteria for the increased and higher rating issues as 
well as the impact of the disabilities on the Veteran's daily 
life.  Opinions were also provided as to a nexus for the 
Veteran's other service connection issues.  See 38 C.F.R. § 3.326 
(2009), Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that 
a medical opinion is adequate if it provides sufficient detail so 
that the Board can perform a fully informed evaluation of the 
claim).

The Board finds that VA has satisfied its duty to notify and 
assist.  The Veteran has not identified any other pertinent 
evidence, not already of record.  The Board is also unaware of 
any such evidence.


ORDER

Entitlement to service connection for sinusitis is granted.

Entitlement to service connection for rhinitis is granted.

Entitlement to service connection for bronchial asthma is 
granted.

Entitlement to service connection for burn scar of the right side 
of the face is granted.

Entitlement to service connection for DVT is denied.

Entitlement to a disability rating in excess of 10 percent for 
lumbosacral strain prior to December 7, 2007, is denied.

Entitlement to a disability rating in excess of 20 percent for 
lumbosacral strain prior to January 13, 2009, is denied.

Entitlement to a disability rating in excess of 40 percent for 
lumbosacral strain from January 13, 2009, is denied.

Entitlement to a disability rating in excess of 10 percent for 
left inguinal hernia prior to June 29, 2003, is denied.

Entitlement to a disability rating in excess of 30 percent for 
left inguinal hernia from June 29, 2003, is denied.

Entitlement to a disability rating in excess of 10 percent for 
left shoulder AC joint arthritis with mild impingement prior to 
December 7, 2007, is denied.

Entitlement to a disability rating in excess of 20 percent for 
left shoulder AC joint arthritis with mild impingement from 
December 7, 2007, is denied.

Entitlement to a disability rating in excess of 10 percent for 
GERD prior to January 25, 2008, is denied.

Entitlement to a disability rating of 30 percent for GERD, from 
January 25, 2008, is granted subject to the laws and regulations 
governing the payment of monetary benefits.

Entitlement to increased rate of SMC for loss of use of a 
creative organ is denied.


REMAND

The Veteran is seeking entitlement to service connection for a 
left hip disorder.  He has claimed that he injured his left hip 
at the same time he injured his lower back during his period of 
active duty from November 2001 to June 2003.  The Veteran has 
stated on a number of occasions that he suffered falls.  The 
falls took place in his patrol boat, when he slipped on some ice, 
and when he was shot with a paint ball/plastic pellet round 
during training.  

The evidence of record does establish that the Veteran suffered 
several falls during service.  His service-connected lumbosacral 
strain and left shoulder disabilities relate, in part, to falls 
suffered during service.  The Veteran has provided statements 
from others who witnessed him as having fallen during service.  
He has evidence of a current disability and has complained of 
pain in the left side that he relates to his left hip both in 
service and after.

The Board finds that the evidence is such that a VA examination 
is in order to fully develop the Veteran's claim for service 
connection for a left hip disorder.

The Veteran's STRs reflect treatment for a left varicocele and 
epididymitis on several occasions prior to his release from 
active duty in November 1995.  He was also noted to have atrophy 
of the right testicle.  

He was granted service connection for postoperative residuals for 
a left varicocele with recurrent epididymitis in June 1996.  He 
was awarded a noncompensable disability rating at that time.  He 
was also granted service connection for a separate disability of 
atrophy of the right testicle.  A noncompensable disability 
rating was established for this disability as well.  

The Veteran submitted a claim for involving several issues in 
November 2003.  His disability rating for his service-connected 
postoperative residuals of a left varicocele with recurrent 
epididymitis was increased to 10 percent by way of a rating 
decision dated in August 2006.  The effective date was 
established as November 20, 2003.  

The Veteran submitted a claim for an increased, or compensable, 
rating for his service-connected disability of atrophy of the 
right testicle in November 2006.  

The RO issued a rating decision in September 2007 that addressed 
several of the Veteran's GU-related disabilities.  First, the 
Veteran's disability rating for postoperative residuals of a left 
varicocele with recurrent epididymitis was increased to 20 
percent.  The basis for the increase was the finding of bilateral 
atrophy of the testicles at the last examination.  The effective 
date was as of the date of the VA examination of August 25, 2007.  
Second, the Veteran was also granted service connection for a 
separate disability of erectile dysfunction.  A noncompensable 
rating was assigned.  The effective date was as of the date of 
the VA examination where the examiner related this disability to 
the Veteran's testicular disability on August 25, 2007.  Finally, 
the Veteran was also awarded SMC for the loss of use of a 
creative organ.  Again, the effective date was August 25, 2007.

Although the Veteran was previously service connected for two, 
separate GU-related disabilities, the left varicocele and atrophy 
of the right testicle, the RO has combined those two disabilities 
as one disability with the establishment of the 20 percent 
rating.  In addition, the RO also included the disability for 
erectile dysfunction in the same rating.  All GU-related 
disabilities were now rated under Diagnostic Codes 7325-7523 as 
of August 25, 2007.

Despite the above rating action, the RO issued a SOC identifying 
a separate issue of a compensable evaluation for erectile 
dysfunction in February 2009.  The RO also issued a SSOC that 
same month that listed a separate issue of a 20 percent rating 
for postoperative residuals of a left varicocele with recurrent 
epididymitis.

The Board notes that the RO's actions do not provide for a rating 
for the Veteran's several distinct GU disabilities.  The 
Veteran's left varicocele, with recurrent epididymitis was 
previously rated under Diagnostic Codes 7599-7525.  See 38 C.F.R. 
§ 4.20 (2009) (When an unlisted condition is encountered it will 
be permissible to rate under a closely related disease or injury 
in which not only the functions affected but the anatomical 
localization and symptomatology are closely analogous.)  The 
rating criteria for Diagnostic Code 7525, provide that the 
disability is to be rated as urinary tract infection.  38 C.F.R. 
§ 4.115a, 4.115b (2009).

The atrophy of the right testicle was previously rated under 
Diagnostic Code 7523.  The criteria for rating atrophy of the 
testes is just that - rating the disability on the basis of 
atrophy.  A noncompensable disability rating is warranted when 
one testicle is involved.  A 20 percent rating is applicable 
where there is bilateral atrophy.  38 C.F.R. § 4.115b.

Like the Veteran's varicocele disability, the Schedule for Rating 
Disabilities does not include a specific diagnostic code for 
evaluation of erectile dysfunction.  VA has routinely rated this 
disability under Diagnostic Code 7522.  Under Diagnostic Code 
7522, penis deformity with loss of erectile power warrants a 20 
percent rating.  38 C.F.R. § 4.115b.  This is the only available 
rating under Diagnostic Code 7522.  The provisions of 
38 C.F.R. § 4.31 indicate that in every instance where the 
schedule does not provide a zero percent evaluation for a 
diagnostic code, a zero percent evaluation shall be assigned when 
the requirements for a compensable evaluation are not met.  The 
Veteran's disability is listed on the SOC as noncompensable.

The Board finds that the RO has not provided a justification for 
its combination of the Veteran's GU-related disabilities under 
one rating.  It appears that the left varicocele with recurrent 
epididymitis, the bilateral atrophy of the testes, and the 
erectile dysfunction all have distinguishable rating criteria 
that are applicable in evaluating the level of disability for 
each separate disability.  See Esteban v. Brown, 6 Vet. App. 259, 
262 (1994) (upholding the issuance of separate ratings for three 
distinct facial problems where "none of the symptomatology for 
any one of these three conditions is duplicative of or 
overlapping with the symptomatology of the other two conditions") 
(emphasis in original); see also 38 C.F.R. § 4.14 (2009).

On remand, the RO must address the propriety of a separate 
disability rating for each of the GU-related disabilities.  

The Veteran was granted service connection for pes planus by way 
of a rating decision dated in September 2007.  He was awarded a 
10 percent disability rating.  He has appealed this initial 
disability rating.

VA and private treatment records document ongoing treatment for 
the Veteran's pes planus.  In September 2008, the Veteran 
reported a knot in his left foot at his VA examination.  The 
Veteran said it had been present for a year.  The examiner 
remarked that there was a callus on the ball of the left foot.  
The Veteran raised a similar complaint at a VA examination in 
January 2009.  The examiner said there was a tender deep callus 
on the left arch area of the left foot.

Records from L. J. Wapiennik, II., D.P.M., from March 2008 to 
June 2009, noted pain in the left foot in March and July 2008, 
respectively.  In May 2009 he was seen for an insidious onset of 
discomfort to the plantar aspect of his left foot.  The Veteran 
described the presence of a small nodular area of the plantar 
medial aspect of the central arch area.  An MRI report for May 
2009 indicated that there was a 20 x 12 x 7 mm contrast enhancing 
soft tissue mass within the plantar subcutaneous soft tissues at 
the level of the proximal first metatarsal shaft.  The report 
said the lesion may represent a plantar fibroma.  Dr. Wapiennik's 
assessment was possible plantar fibromatosis of the left foot.  
He made the same assessment in June 2009.

The Veteran submitted additional evidence regarding his feet in 
August 2010.  He did not waive consideration of the evidence by 
the AOJ.  The records were VA treatment records that showed he 
was seen for complaints of foot pain.  The Veteran described 
having a bump on the dorsum of his left foot.  He was also noted 
to have a plantar fibroma on the left foot.  The assessment at 
the time was of ganglion cyst versus bursa, plantar fibroma of 
the left foot and onychomycosis.  The plan was to obtain another 
MRI of the left foot to assess the soft tissue mass.  

As noted the Veteran was last examined in January 2009.  Since 
that time a plantar fibroma has been diagnosed as well as a soft 
tissue mass in the left foot. It is not known if these later 
diagnoses are related to his service-connected pes planus 
disability.  In light of the identification of these additional 
disorders and the VA records submitted without a waiver, the 
issue is remanded for an examination and consideration of the 
records.  

Finally, the Veteran was granted service connection for 
lumbosacral strain in December 2005.  A noncompensable disability 
rating was awarded.  His disability rating was increased to 10 
percent in September 2007.  The disability was characterized as 
lumbosacral strain with radiculopathy.  The rating decision noted 
that a VA examiner attributed the radiculopathy disability to the 
Veteran's DDD of the lumbar spine.  This disability was included 
in the rating for lumbosacral strain by the RO.  

The Veteran's service-connected back disability was increased to 
20 percent in October 2008 and to 40 percent in February 2009.  
Radiculopathy was considered as part of the overall disability in 
those rating decisions.

The RO granted a separate 10 percent disability rating for 
radiculopathy of the left lower extremity in August 2009.  The 
effective date was established as of May 23, 2008.  It was 
determined that receipt of a Congressional inquiry at that time 
served as claim for service connection.  

The Board notes that the rating criteria used to evaluate 
disabilities of the spine were amended in September 2002 and 
September 2003 to provide for separate ratings of the orthopedic 
and neurologic manifestations of a back disability involving 
intervertebral disc syndrome (IVDS).  By way of the rating action 
of December 2005, the RO appears to have awarded service 
connection for IVDS by implicitly associating the cause of 
radiculopathy with the Veteran's lumbosacral strain.  

In light of the above, the Board finds that this issue must be 
remanded to the RO for consideration of whether the Veteran is 
entitled to a separate disability rating for his radiculopathy of 
the left lower extremity for any stage earlier than August 2009.

Accordingly, the case is REMANDED to the AOJ for the following 
action:

1.  No tabs should be removed from the 
claims folders unless necessary to 
facilitate copying of the record.

2.  The AOJ should contact the Veteran 
and request that he identify the 
names, addresses and approximate dates 
of treatment for all health care 
providers, VA and private, who may 
possess additional records pertinent 
to his claims remaining on appeal.  
The AOJ should attempt to obtain and 
associate with the claims folder any 
medical records identified by the 
Veteran that are not already of 
record.  

3.  Upon completion of the above 
development, the Veteran should be 
afforded a VA examination to evaluate 
his claim for service connection for a 
left hip disorder.  The claims folder 
and a copy of this remand must be 
provided to the examiner and reviewed 
as part of the examination.  All 
indicated studies, tests and 
evaluations deemed necessary by the 
examiner should be performed.  The 
results of such must be included in 
the examination report.

The examiner is requested to identify 
any and all disorders of the left hip.  
The examiner is also requested to 
provide an opinion as to whether it is 
at least as likely as not that any 
currently diagnosed left hip disorder 
is directly related to the Veteran's 
military service.  A complete 
rationale for any opinion expressed 
must be provided.

4.  The Veteran should be scheduled 
for an examination to determine the 
nature and extent of his service-
connected pes planus.  The claims 
folder and a copy of this remand 
should be made available to the 
examiner.  The examiner should fully 
describe all manifestations of the 
Veteran's pes planus to include an 
opinion as to whether the plantar 
fibroma and any identified soft tissue 
mass are related to the Veteran's pes 
planus or can be determined to be 
separate disorders.  The examiner 
should provide a complete rationale 
for all conclusions reached.

5.  After undertaking any other 
development deemed appropriate, the 
AOJ should re-adjudicate the issues 
remaining on appeal.  Such re-
adjudication should include 
consideration of separate ratings for 
the Veteran's service-connected GU 
disabilities, as well as whether 
radiculopathy of the left lower 
extremity should be rated as a 
separate compensable disability for 
any earlier stage, i.e., any stage for 
which the back disability was at 
issue-since October 6, 2006.  If any 
benefit sought is not granted, the 
Veteran should be furnished with a 
supplemental statement of the case and 
afforded an opportunity to respond 
before the record is returned to the 
Board for further review.

Thereafter, the case should be returned to the Board for further 
appellate review.  By this remand, the Board intimates no opinion 
as to any final outcome warranted.  No action is required of the 
Veteran until he is notified by the AOJ.  The Veteran has the 
right to submit additional evidence and argument on the matters 
the Board has remanded to the AOJ.  Kutscherousky v. West, 12 
Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board 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. 
2010).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs