Citation Nr: 1135841	
Decision Date: 09/23/11    Archive Date: 10/03/11

DOCKET NO.  99-17 169	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to an effective date earlier than July 8, 1997, for the grant of service connection for chronic fatigue syndrome.

2.  Entitlement to an initial disability evaluation in excess of 10 percent for chronic fatigue syndrome.

3.  Entitlement to an increased disability evaluation for thoracolumbar strain, currently rated as 30 percent disabling.

4.  Whether new and material evidence has been submitted that is sufficient to reopen a previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD).

5.  Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to January 17, 2008.

6.  Entitlement to service connection for status post fusion of right interphalangeal joints, claimed as right toe pain.

7.  Entitlement to service connection for right patellofemoral syndrome, claimed as right knee pain.

8.  Entitlement to service connection for right plantar fasciitis, claimed as pes cavus.

9.  Entitlement to service connection for chronic vaginal infections, to include as due to an undiagnosed illness.

10.  Entitlement to service connection for Sjogren's syndrome, to include as due to an undiagnosed illness. 

11.  Entitlement to service connection for ocular cicatricial pemphigoid, to include as due to an undiagnosed illness.

12.  Entitlement to service connection for pulmonary granuloma, claimed as chest pain, to include as due to an undiagnosed illness.

13.  Entitlement to service connection for mycoplasma infection with hematuria, to include as due to an undiagnosed illness.

14.  Entitlement to service connection for irregular menses, to include as due to an undiagnosed illness.



REPRESENTATION

Appellant represented by:	Disabled American Veterans





ATTORNEY FOR THE BOARD

S. Coyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1988 to January 1992. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 1999 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for a right foot disorder, a right knee disorder, and a right toe disorder; from a May 2004 rating decision by the Cleveland, Ohio RO which granted entitlement to service connection for chronic fatigue syndrome and assigned a 10 percent disability evaluation, effective July 8, 1997; from a July 2005 rating decision by the Cleveland RO which declined to reopen a previously denied claim of entitlement to service connection for PTSD, denied entitlement to a TDIU and denied entitlement to service connection for chronic vaginal infections, Sjogren's syndrome, irregular menses, ocular cicatricial pemphigoid, mycoplasma infection, hematuria, and pulmonary granuloma; and from a January 2007 rating decision by the Cleveland, Ohio RO which granted entitlement to a disability evaluation of 20 percent for thoracolumbar strain.  Timely appeals were noted with respect to the denials of service connection, the denial of the Veteran's application to reopen a previously denied claim of service connection for PTSD, denial of entitlement to a TDIU, the rating and effective date assigned for the grant of service connection for chronic fatigue syndrome, and the rating assigned for thoracolumbar strain.  The claims are now under the jurisdiction of the Chicago, Illinois RO.  

In November 2004, the Board remanded the issues of entitlement to service connection for a right foot disorder, a right knee disorder, and a right toe disorder to the RO (via the Appeals Management Center (AMC)) for further evidentiary development.  After completion of the requested development, the case is back before the Board for further appellate action.

During the pendency of the Veteran's appeal, the RO awarded an increased evaluation for the service-connected thoracolumbar strain from 20 percent to 30 percent.  The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).   The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal.  Id.  Thus, the issue remains in appellate status. 

The issues of entitlement to a TDIU prior to January 17, 2008, entitlement to an increased rating for chronic fatigue syndrome and entitlement to service connection for chronic vaginal infections, Sjogren's syndrome, ocular cicatricial pemphigoid, pulmonary granuloma, mycoplasma infection, hematuria and irregular menses, to include as due to an undiagnosed illness, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is no communication submitted prior to July 8, 1997 that could be construed as a claim (formal or informal) of service connection for chronic fatigue syndrome. 

2.  Entitlement to service connection for chronic fatigue syndrome did not arise until competent evidence, dated subsequent to July 8, 1997, established the presence of the disorder.  

3.  A clear preponderance of the evidence establishes that thoracolumbar strain is not manifested by ankylosis or forward flexion of the thoracolumbar spine limited to 30 degrees or less.

4.  In view of the 100 percent schedular disability rating for depression, there is no longer a controversy on the question of the Veteran's entitlement to a TDIU since January 17, 2008. 

5.  A November 2001 rating decision denied service connection for PTSD on the basis that there was no corroborated stressor.  The Veteran did not file a timely appeal following appropriate notice, and that decision became final.

6.  Presuming its credibility, evidence received since November 2001 relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

7.  Resolving all doubt in her favor, the Veteran has PTSD that is related to her fear of hostile military activity during her period of active duty.

8.  Resolving all doubt in the Veteran's favor, right patellofemoral syndrome had its clinical onset during service.

9.  Resolving all doubt in the Veteran's favor, right plantar fasciitis had its clinical onset during service.


CONCLUSIONS OF LAW

1.  The criteria for assignment of an effective date prior to July 8, 1997 for the grant of service connection for chronic fatigue syndrome have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2010).  

2.  The criteria for a disability evaluation in excess of 30 percent for thoracolumbar strain are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2010).

3.  There remains no justiciable case or controversy currently before the Board concerning the Veteran's claim for TDIU since January 17, 2008, and this portion of the appeal is dismissed.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 4.16 (2010).  

4.  The November 2001 RO decision is final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001).

5.  The evidence added to the record since November 2001 is new and material; the claim is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).

6.  PTSD was incurred in active military duty.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010).

7.  Right patellofemoral syndrome was incurred in service.  38 U.S.C.A. §§ 1110, 5103-5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). 

8.  Right plantar fasciitis was incurred in service.  38 U.S.C.A. §§ 1110, 5103-5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In correspondence dated February 2008, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims for an increased rating for thoracolumbar strain and an earlier effective date for the grant of service connection for chronic fatigue syndrome; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the Veteran is challenging the effective date assigned to her chronic fatigue syndrome following the grant of service connection.  The Board notes that the duty to notify the Veteran was not satisfied prior to the initial unfavorable decision on the underlying claim for service connection for chronic fatigue syndrome, since the claim was decided prior to the enactment of the VCAA.  See Dingess, supra.  In Pelegrini v. Principi, however, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) acknowledged that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice.  Rather, the appellant has the right to a content complying notice and proper subsequent VA process.  Pelegrini, 18 Vet. App. at 120.  The Veteran received proper notice of the evidence needed to establish entitlement to an earlier effective date for chronic fatigue syndrome in correspondence dated February 2008.

With respect to the remaining claims, the Board finds that service connection for PTSD, right plantar fasciitis and right patellofemoral syndrome are warranted, and that the claim for TDIU since January 17, 2008, must be dismissed as moot; therefore, a full discussion of whether VA met these duties is not needed.  



Earlier Effective Date

The Veteran filed a claim for service connection for chronic fatigue syndrome on July 8, 1997.  The claim was denied by rating decision dated August 1998.  The Veteran appealed, and service connection for chronic fatigue syndrome was granted by the Board in August 2003.  In a May 2004 rating decision, a disability evaluation of 10 percent for chronic fatigue syndrome was assigned, effective July 8, 1997, the date of receipt of the Veteran's claim for service connection.  The Veteran filed a timely appeal with respect to the effective date, arguing that she had experienced fatigue since her service in the Southwest Asia theater of operations and should thus be granted service connection back to her date of discharge in January 1992.

The provisions of the law governing effective date of awards of benefits are clear. The effective date of an award is generally the date of receipt of a claim (or informal claim where appropriate), or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  More specifically, the effective date of an award of disability compensation for direct service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  See 38 C.F.R. § 3.151(a).  However, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.  

VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date.  Servello, 3 Vet. App. at 200.

There was no document received prior to July 8, 1997, that can be construed as a claim, either formal or informal, for chronic fatigue syndrome.  The record does contain a letter dated June 25, 1997, discussing symptoms of chronic fatigue; however, the document was not received until July 18, 1997.  The initial diagnosis of chronic fatigue syndrome was in April 1999; entitlement did not arise until a clear diagnosis was established.  There is no legal entitlement to an effective date for chronic fatigue syndrome for any period prior to July 8, 1997.  

As the preponderance of the evidence is against the claim for an earlier effective date of service connection for chronic fatigue syndrome, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Increased Rating for Thoracolumbar Strain

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  


The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).   In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  It is also necessary to evaluate the disability from the point of view of the Veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. §§ 4.2, 4.3.  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  

By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Functional loss, which is the inability to perform the normal working movements of the body within normal limits, specifically due to pain and weakness on motion, also is to be considered when ascertaining the severity of musculoskeletal disabilities.  38 C.F.R. §§ 4.40, 4.45 and 4.59 (2007); see also DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).

The General Rating Formula for Diseases and Injuries of the Spine provides as follows:  

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:
Unfavorable ankylosis of the entire spine...........................................................100

Unfavorable ankylosis of the entire thoracolumbar spine.....................50

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........................................................................40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine........................................................................30

Forward flexion of the thoracolumbar spine greater than 30  degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the  thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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...............................20

Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  Id.

Note 2 provides that for VA compensation purposes, 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 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.  Id.

Note 3 provides that 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.  Id.

Note 4 provides that each range of motion measurement should be rounded to the nearest five degrees.  Id.

Note 5 provides that 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; dispend 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.  Id.

Note 6 provides that disability of the thoracolumbar and cervical spine segments will be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Id.

Service connection for thoracolumbar strain was initially granted by rating decision dated January 1993, and a 10 percent disability evaluation was assigned.  On January 28, 2008, the Veteran filed the instant claim for an increased rating.  

As a preliminary matter, the Board notes that a November 2010 rating decision granting entitlement to a rating of 30 percent for thoracolumbar strain incorrectly stated the date of the Veteran's claim as December 5, 2005.  Although the Veteran did file a claim for an increased rating in December 2005, that claim was granted by rating decision dated January 2007, which increased the Veteran's disability evaluation to 20 percent for thoracolumbar strain.  The Veteran did not file a timely appeal, and instead filed the instant claim in January 2008.  

On VA examination in March 2008, the Veteran reported increased frequency and severity of muscle spasms.  Physical examination showed normal gait and no assistive devices.  The Veteran refused to flex her spine, stating that she could not; however, she was able to undress and redress herself during the examination.  Repetitive movements were "limited by pain and a lack of endurance."  

On VA neurological examination in March 2010, the Veteran refused to engage in forward flexion, stating that it would be too painful; however, after some "mild prodding" on the part of the examiner, the Veteran did flex her spine to approximately 10 degrees.  Range of motion testing "produced excruciating pain per the Veteran and she was quite reluctant, even after doing some stretching, to flex any further."  The examiner went on to note that the Veteran seemed extremely comfortable during the rest of the examination.  She was able to sit at a 90 degree angle and comfortably stretch her legs out.   When putting on her shoes, she was able to lift her leg and bend sideways.  She also mounted and dismounted the examination table without difficulty, and was observed to rise easily from supine to sitting and vice versa.  

On VA neurological examination in April 2010, the Veteran again refused to engage in forward flexion, stating that she would be in pain "all day" if she cooperated.  Neurological examination of the lower extremities was essentially normal.  A possible neurogenic bladder was noted; however, in a separate April 2010 VA genitourinary examination, the etiology of the Veteran's incontinence could not be determined, and there is no indication in the record that the Veteran's incontinence is due to her thoracolumbar strain.  

On May 4, 2010, the Veteran received an examination in connection with her claim for Social Security Administration (SSA) disability benefits.  Flexion of the spine was noted to be 30 degrees, with no comments on whether there was any additional limitation of motion on repetition.  The examiner did note that the Veteran was able to "lift, carry, and handle objects without difficulty."  There was also no difficulty in dressing or undressing, getting on and off the examination table, tandem walking, heel and toe walking, hopping on one leg, or rising from a chair.  There was "mild" difficulty squatting and arising.  There were no neurological deficits noted.  

Upon review, the Board finds that the evidence tends to show that the Veteran's disability does not meet the criteria for a rating in excess of 30 percent for orthopedic manifestations.  VA examinations dated March 2010 and April 2010 indicate that the Veteran's forward flexion was either absent or severely limited to 10 degrees or less; however, the March 2010 examiner called the range of motion testing into question, pointing out that the able to bend down to put on her shoes with no apparent discomfort and lie down and rise from the examining table with apparent ease; however, she was unable to accomplish range of motion testing without experiencing excruciating pain.  The April 2010 examiner did not specifically call into question the findings on range of motion testing, but did note that the Veteran seemed to be walking normally with good power in the legs and with a normal neurological status.   The May 2010 SSA examiner noted that the Veteran had no difficulty dressing and undressing, lifting and carrying objects, hopping on one leg, rising from a chair, and getting on and off the examination table.  After review of the evidence, and considering the references to possible malingering, the Board finds that the findings of flexion limited to less than 30 percent in March, April and May 2010 are of limited probative value.  Thus, the Board finds that the Veteran's orthopedic symptoms do not warrant a rating of greater than 30 percent.  Moreover, none of the examinations of the Veteran's spine have shown a neurological deficit that is attributable to the Veteran's thoracolumbar strain.

The Board has also considered whether a higher evaluation is warranted on the basis of functional loss.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2007); DeLuca, 8 Vet. App. 204-7 (1995).  However, there is no objective evidence that the pain associated with the Veteran's thoracolumbar strain severely interferes with her daily functions.  On examination, the Veteran was observed to lie down and rise from an examination table without much difficulty, as well as dress and undress, lift and carry objects, and rise from a sitting position.  Although some additional limitation of motion upon repetitive use has been reported, the Board finds that this is not adequate pathology or symptoms that would warrant an evaluation in excess of 30 percent for functional loss.  See DeLuca, 8 Vet. App. 204-7 (1995).

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board has carefully compared the level of severity and symptomatology of the Veteran's thoracolumbar strain with the established criteria found in the rating schedule.  The Board finds that the Veteran's thoracolumbar spine symptomatology is fully addressed by the rating criteria under which such disability is rated.  There are no additional symptoms of her thoracolumbar spine strain that are not addressed by the rating schedule.  The Board has considered the Veteran's assertions that her back pain prevents her from working; however, the evidence of reflects that the Veteran's depression, for which she receives a total schedular disability evaluation and which served as the basis for the grant of SSA disability benefits, is a far greater impairment to her ability to maintain employment than her service-connected thoracolumbar strain.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for her service-connected disability.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

The Board has also considered whether higher ratings might be warranted for any period of time during the pendency of this appeal.  Hart, supra.  However, the weight of the credible evidence demonstrates that the manifestations of the Veteran's service connected thoracolumbar strain have warranted no more than a 30 percent rating since December 5, 2005, the date she filed her claim for an increased rating.

TDIU

TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

From January 17, 2008, the claim for TDIU is moot.  A 100 percent schedular rating for depression, effective January 17, 2008, has been awarded; thus it is not permissible to consider entitlement to TDIU for the period since January 17, 2008.  A Veteran may receive a TDIU rating only if the Veteran does not otherwise qualify for a schedular total disability rating on any basis.  See VAOPGCPREC 6-99, 64 Fed. Reg. 52,375 (1999).  Thus, the claim of entitlement to a TDIU is now moot for the period since January 17, 2008.  Accordingly, the Veteran's claim for TDIU since January 17, 2008, must be dismissed as a matter of law.  Sabonis v. Brown, 6 Vet App 426 (1994). 

New and Material Evidence

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160, 20.201, 20.302.

In a November 2001 decision, the RO denied service connection for PTSD on the basis that her claimed stressors could not be verified.  The Veteran did not file a timely appeal and that decision became final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001).  Thus, the Veteran's service connection claim for PTSD may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  See 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (1996).

New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of evidence of record at the time of the last prior final denial, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2006).  In determining whether evidence is new and material, the credibility of the new evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.

Since the November 2001 rating decision is final, the Board must now determine whether new and material evidence sufficient to reopen the claim has been received subsequent to the November 2001 decision.  

On July 13, 2010, VA amended its rules for adjudicating disability compensation claims for PTSD contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision added to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. 

The primary result of the amendment of 38 CFR § 3.304(f) was the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. VA TL 10-05 (July 16, 2010). 

Specific to PTSD claims under which the new § 3.304(f)(3) may be applicable, if review of an application for benefits discloses a compensation claim for PTSD and the Veteran's DD-Form 214 verifies service in a location that would involve "hostile military or terrorist activity" as evidenced by such awards as an Iraq Campaign Medal, Afghanistan Campaign Medal, or Vietnam Service Medal, this evidence would be sufficient to schedule the Veteran for a VA psychiatric examination. VA TL 10-05 (July 16, 2010). 

For claims to reopen a previously denied service connection PTSD claim, new and material evidence will be required as the regulatory amendment is not considered a liberalizing rule under 38 C.F.R. § 3.114.  To reopen a claim under new § 3.304(f)(3), VA will accept a Veteran's lay statement regarding an in-service stressor - "fear of hostile military or terrorist activity" - as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity."  If review of the record discloses a previously submitted lay statement demonstrating "fear of hostile military or terrorist activity," such statement will be sufficient for reopening a claim if the Veterans' record otherwise demonstrates service in a location involving exposure to "hostile military or terrorist activity." VA TL 10-05 (July 16, 2010). 

In the present case, the Veteran's DD Form 214 reflects that she served in the Southwest Asia theater of operations from September 1990 to April 1991.  Her military occupational specialty was listed as aviation operations specialist.  Her record confirms service in a location involving exposure to "hostile military or terrorist activity."  She has often testified as to her exposure to SCUD missile attacks and her fear of hostile military action.  In the Board's opinion, and considering TL 10-05, these statements demonstrate "fear of hostile military or terrorist activity," and are sufficient for reopening this claim as the Veterans' record otherwise demonstrates service in a location involving exposure to "hostile military or terrorist activity." 

Resolving all doubt in favor of the Veteran, new and material evidence has been received, and the claim is reopened. 

Service Connection

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also 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).  

There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury.  Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

a.  PTSD

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997).  

If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  75 Fed. Reg. 39852 (July 13, 2010), to be codified at 38 C.F.R. § 3.304 (f)(3).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b). 

The Veteran has been diagnosed with PTSD, which she attributes to various military stressors, including the fear of hostile military activity.  The Veteran asserts that she came under SCUD missile fire on many occasions during her service, and that she often feared the possibility of enemy action.  The Veteran's service personnel records confirm that she served in the Southwest Asia theater of operations from September 1990 to April 1991.

The Veteran received a VA mental health evaluation in December 1999.  She reported symptoms of PTSD secondary to military stressors, including witnessing her commanding officer kill two enemy troops and exposure to SCUD alerts.  The Axis I diagnosis was PTSD.  The Veteran has continued to receive intermittent VA mental health treatment since that time and much of her treatment focuses on her depressive symptoms.  

During an October 2007 clinical evaluation, the Veteran again reported her military stressors as exposure to SCUD missile attacks and "light exposure to nerve gas."  Indeed, the record contains a July 24, 1997 letter from the Department of Defense, advising the Veteran that her unit was in the area of Khamisiyah, Iraq in March 1991 when the nerve agents sarin and cyclosarin were released into the air following the demolition of Iraqi weapons.  Neuropsychological testing showed that her symptoms were "suggestive of PTSD."  

The Veteran received another VA mental health examination in April 2010 to determine whether the Veteran has PTSD that is due to military sexual trauma.  The examiner found that the sexual harassment described by the Veteran was not sufficient to produce PTSD; however, he did not comment on whether any other military stressors, including the fear of hostile military activity, may have resulted in PTSD.  

Affording the Veteran the benefit of the doubt, the evidence supports a finding that the Veteran does suffer from PTSD, and that her PTSD is due to her fear of hostile military activity in service as noted in the December 1999 VA psychiatric evaluation.  In sum, the Board finds that the statutory and regulatory criteria for entitlement to service connection for PTSD have been met.   

b.  Right Patellofemoral Syndrome and Right Plantar Fasciitis

The Veteran, who is a registered nurse, is claiming service connection for right patellofemoral syndrome and right plantar fasciitis, originally claimed as a right knee disorder and right foot pain.  She attributes her disorders to the rigorous physical demands of military service, particularly basic training.

Review of the Veteran's service treatment records shows a diagnosis of right patellofemoral syndrome and complaints of right foot pain in February 1989.  "Persistent" plantar fasciitis of the right foot was diagnosed in April 1989.  In July 1989, she was treated for what was termed "tendonitis" in the right knee.  "Possible" patellofemoral syndrome was noted in August 1989.  There is no separation examination of record.

The Veteran filed her claim for service connection for right knee pain and right foot pain in July 1997, asserting that she had had right knee and foot pain since her discharge from active service.  On VA general medical examination in May 1999, there was no mention of right knee or right foot pain.  

The Veteran received VA orthopedic examinations of her knee and foot in December 2005.  Her assertions regarding in-service onset of foot and knee pain were noted by the examiner.  Minimal arthritis of the right foot was shown on X-ray, and an X-ray of the Veteran's right knee was normal; however, the examiner diagnosed chondromalacia patella.  There was no opinion offered as to the etiology of the Veteran's foot pain, and the examiner found that he could not come to a conclusion on the etiology of the Veteran's knee pain without resort to speculation; 

however, there is no indication that the examiner took into account the Veteran's reports of a continuity of symptomatology since service.  

During an April 2010 podiatry consult, the Veteran again related a continuity of right foot symptomatology since service.  X-ray studies showed findings consistent with plantar fasciitis.  Right patellofemoral syndrome was also noted, and the Veteran was referred back to her primary care physician for care of her knee.  

Upon review, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's right plantar fasciitis and right patellofemoral syndrome are related to her service.  The Veteran was diagnosed with both disorders while in active service and reported a continuity of right knee and right foot pain on her June 1997 claim for service connection.  The Veteran is a registered nurse and is competent to comment upon the etiology of her right foot and right knee disorders, as well as a continuity of symptomatology since service.  

The December 2005 examiner did not provide an etiology opinion as to the Veteran's right foot disorder, currently diagnosed as plantar fasciitis, nor did he provide an etiology for the Veteran's right knee disorder, stating that to do so would be a resort to mere speculation.  The examiner did not, however, take into account the competent reports by the Veteran of a continuity of symptomatology since service.   

When a Department of Veterans Affairs (VA) medical examiner states no conclusion as to etiology or diagnosis can be reached without resorting to speculation, it must be clear, from either the examiner's statements or the decision of the Board of Veterans' Appeals, that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis; when the record leaves the issue in doubt, it is the Board's duty to remand for further development.  An examiner who states no conclusion as to etiology or diagnosis can be reached without resorting to speculation should clearly identify precisely what facts cannot be determined; for example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  

In this case, the examiner did not consider "all procurable and assembled data,"  since he did not take into account any lay statements regarding continuity of symptomatology, nor did he attempt to discuss the in-service diagnoses of patellofemoral syndrome and their relationship to the Veteran's current knee disorder.  He also provided no rationale for concluding that an opinion as to the etiology of the Veteran's knee disorder would call for speculation.  Thus, the March 2005 VA medical opinion is inadequate with respect to the claim for service connection for right patellofemoral disorder, and is of limited probative value.  Id.  Moreover, the examination of the Veteran's right foot is of no probative value, since it does not offer any opinion as to the etiology of the Veteran's right foot disorder.  

Taking into account the findings of patellofemoral syndrome and plantar fasciitis during service, a continuity of symptomatology since service and current diagnoses of patellofemoral syndrome and plantar fasciitis, the Board finds that the evidence is at least in equipoise on the matter of service connection for right plantar fasciitis and right patellofemoral syndrome.  The Board is also required to resolve all reasonable doubt in favor of the Veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R.          § 3.102.  Accordingly, service connection for right plantar fasciitis and right patellofemoral syndrome is granted.


ORDER

An effective date earlier than July 8, 1997, for the grant of service connection for chronic fatigue syndrome is denied.

An increased disability evaluation for thoracolumbar strain, currently evaluated as 30 percent disabling, is denied.

The claim for a TDIU since January 17, 2008, is dismissed.

New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened.

Service connection for PTSD is granted.

Service connection for right plantar fasciitis is granted.

Service connection for right patellofemoral syndrome is granted.



REMAND

The Veteran asserts that her service-connected chronic fatigue syndrome (CFS) warrants a rating in excess of 10 percent.  Diagnostic Code 6354 provides that CFS includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms.  A 10 percent rating is assigned for signs and symptoms of CFS that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or the symptoms are controlled by continuous medication.  A 20 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year.  A 40 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year.  A 60 percent rating is assigned for signs and symptoms of CFS that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year.  A 100 percent rating is assigned for signs and symptoms of CFS that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care.  A Note to Diagnostic Code 6354 provides that, for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician.  38 C.F.R. § 4.88b. 

The Veteran received a VA examination of her chronic fatigue syndrome in March 2010; however, the examiner did not comment on the restriction of routine daily activities or whether the Veteran had periods of incapacitation.  Thus, the matter should be remanded for another examination.

With regard to the Veteran's claim for service connection for status post fusion of the right interphalangeal joints, claimed as right toe pain, the Veteran received a VA examination in December 2005.  The examiner noted the Veteran's reports of toe pain in service, fusion of the interphalangeal joints following discharge and a continuity of toe pain since then.  He diagnosed status post interphalangeal joint fusion of the second, third and fourth toes, but found that the disorder was less likely than not related to service because there was "no mention of any toe difficulties" in service.  The conclusion failed to take into account the Veteran's reports of toe pain during service, a December 1991 report of callosities on the toes and sides of the feet, or the Veteran's reports of a continuity of symptomatology since service.  Thus, a new VA examination should be scheduled upon remand.  Moreover, in light of the Veteran's allegations that her toe pain could be the result of her plantar fasciitis, which is now service-connected, the examiner should also comment on whether any disability affecting the Veteran's right toes is proximately due to or aggravated by her service-connected plantar fasciitis.

The Veteran has a disability characterized by dry eyes and a dry mouth.  Her symptoms have been attributed to both Sjogren's syndrome and ocular cicatricial pemphigoid; however, it is unclear from the record which disorder is causing the Veteran's symptoms.  It is also unclear from the record whether the Veteran has Sjogren's syndrome, since some records reflect a diagnosis of Sjogren's syndrome, and others state that the disorder has been ruled out.  The Veteran should be scheduled for an appropriate examination upon remand to determine the nature and etiology of her disability characterized by dry mouth, dry eyes and dry nasal passages.  

Review of the record shows that the Veteran has been treated on numerous occasions for yeast infections and bacterial vaginosis.  Her service treatment records also reflect treatment for vaginosis.  Despite the evidence pertinent to current diagnoses and in-service incurrence of the disorders, no opinion has been offered as to the nature and etiology of the Veteran's vaginal infections.  Thus, there is insufficient competent medical evidence for VA to make a decision on her claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Upon remand, a VA gynecologic examination should be scheduled.

With respect to her mycoplasma claim, the Veteran tested positive for this condition in 2000.  However, she has not been afforded a VA examination to determine what the clinical manifestations of this condition are, any illness she has that is attributable to it, or whether any residuals of mycoplasma are etiologically related to any incident of her service, including her service in Southwest Asia during the Persian Gulf War. A VA examination should therefore be scheduled upon remand.

The Veteran has not received appropriate VCAA notice with respect to her claims for service connection for vaginal infections, Sjogren's syndrome, irregular menses, ocular cicatricial pemphigoid, mycoplasma, and pulmonary granuloma as due to an undiagnosed illness.  The May and August 2004 letters sent to the Veteran with respect to these claims did not advise her of the evidence needed to establish a claim for service connection on a direct basis, or as due to an undiagnosed illness.  Corrective notice should be sent to the Veteran on remand.

Finally, the law provides that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  In the present case, the Veteran's claim for a TDIU prior to January 17, 2008, is dependent on the adjudication of her pending claims and the ratings and effective dates assigned to her service-connected PTSD, right plantar fasciitis, and right patellofemoral syndrome.  Thus, adjudication of the claim for a TDIU prior to January 17, 2008 will be held in abeyance pending further development and adjudication of the Veteran's claims.

Accordingly, the case is REMANDED for the following action:

1.  Review the claims folder and ensure that all notification and development actions required by the VCAA are fully complied with and satisfied.  Specifically, the following should be accomplished:  

(a)  Notify the Veteran of the information and evidence necessary to substantiate a claim for direct service connection as well as one based upon an undiagnosed illness; 

(b)  Notify the Veteran of the information and evidence she is responsible for providing;

(c)  Notify the Veteran of the information and evidence VA will attempt to obtain, e.g., that VA will make  reasonable efforts to obtain relevant records not in the custody of a Federal department or agency and will make as many requests as are necessary to obtain  relevant records from a Federal  department or agency; 

(d)  Notify her that she should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on her behalf; and 

(e)  Provide the Veteran with an explanation as to the information or evidence needed to establish disability ratings and effective dates for her claim.  

2.  Schedule the Veteran for an appropriate VA examination in order to determine the extent and severity of her chronic fatigue syndrome.  All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. 

The examiner should comment on whether the Veteran's symptoms wax and wane or are nearly constant; the percentage by which her pre-illness activities are restricted by her chronic fatigue symptomatology; and whether there are any periods of incapacitation requiring bed rest and treatment by a physician, and, if so, the duration of those episodes per year, as set forth in 38 C.F.R. § 4.89, Diagnostic Code 6354.  The examiner should also note whether the subjective complaints reported by the Veteran are consistent with the clinical findings and the nature of the disability.

3.  Schedule an orthopedic examination of the Veteran to determine the nature and etiology of any right toe disorder.  The examiner should review the claims folder prior to the examination and should indicate on the examination report that he or she has reviewed the claims folder.  A copy of this remand should also be provided to the examiner. 

For any right toe disorder found, the examiner should opine whether there is a 50 percent probability or greater that it was caused by the Veteran's service, or, alternatively, whether it is proximately due to or aggravated by her right plantar fasciitis.  The rationale for any opinion should be explained in detail.  The examiner is asked to reconcile his or her opinion with a December 1991 record reporting callosities on the toes as well as the Veteran's reports of a continuity of symptomatology since service.  

4.  Schedule a VA examination of the Veteran to determine the nature and etiology of any disorder characterized by dry eyes and dry mouth, including Sjogren's syndrome and/or ocular cicatricial pemphigoid.  The examiner should review the claims folder prior to the examination and should indicate on the examination report that he or she has reviewed the claims folder.  A copy of this remand should also be provided to the examiner. 

For any disorder characterized by dry eyes and dry mouth found, the examiner should opine whether it is caused by Sjogren's syndrome, ocular cicatricial pemphigoid, or any other disease process.  If Sjogren's syndrome or ocular cicatricial pemphigoid can be definitively ruled out, the examiner should so state.  The examiner should then comment on whether there is a 50 percent probability or greater that the diagnosed disability is the result of the Veteran's service, to include as due to an undiagnosed illness.  The rationale for any opinion should be explained in detail.  

5.  Schedule a VA gynecologic examination of the Veteran to determine the nature and etiology of her chronic vaginal infections, to include yeast infections and bacterial vaginosis.  The examiner should review the claims folder prior to the examination and should indicate on the examination report that he or she has reviewed the claims folder.  A copy of this remand should also be provided to the examiner. 

For any chronic vaginal infections found, the examiner should comment on whether there is a 50 percent probability or greater that the disorder had its clinical onset during service or whether it is due to an undiagnosed illness.  The rationale for any opinion should be explained in detail, and any opinion should be reconciled with the service treatment records reflecting treatment for vaginosis.

6.  Schedule a VA examination of the Veteran to determine the nature and etiology of any chronic residuals of a mycoplasma infection.  The examiner should review the claims folder prior to the examination and should indicate on the examination report that he or she has reviewed the claims folder.  A copy of this remand should also be provided to the examiner. 

The examiner should also provide an opinion, based on review of the evidence of record, as to whether any currently diagnosed chronic disability is due to mycoplasma.  If so, he or she should then opine as to whether it is at least as likely as not (i.e., to a probability of 50 percent or greater) that the disorder is etiologically related to any incident of the Veteran's service, including her service in Southwest Asia during the Persian Gulf War.  The examiner should also discuss whether there is a reasonable probability that any current infection is a manifestation of an undiagnosed illness attributable to service in the Persian Gulf.  The rationale for any opinion should be explained in detail.  

7.  After the above has been completed, readjudicate the issues on appeal, including the claim for TDIU prior to January 17, 2008, taking into consideration all evidence added to the file since the most recent VA adjudication.  If the issues on appeal continue to be denied, the Veteran and her representative must be provided a supplemental statement of the case.  The Veteran must then be given an appropriate opportunity to respond.  Thereafter, the case must be returned to the Board for appellate review.

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

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




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs