Citation Nr: 1111881	
Decision Date: 03/24/11    Archive Date: 04/06/11

DOCKET NO.  07-10 259A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for prostate cancer.

2.  Entitlement to service connection for numbness of the right arm, to include as secondary to service-connected scoliosis of the dorsal spine.  

3.  Entitlement to service connection for numbness of the right leg, to include as secondary to service-connected scoliosis of the lumbar spine.

4.  Entitlement to an increased initial evaluation for depression, rated as 30 percent disabling from August 21, 2003, to December 18, 2005, and rated as 50 percent disabling from December 19, 2005, to the present.

5.  Entitlement to an increased initial evaluation for hepatic porphyria with a history of rash (skin rash disability), evaluated as 10 percent disabling from November 14, 1995, to October 19, 2003.

6.  Entitlement to an increased evaluation for a skin rash disability, evaluated as 10 percent disabling from October 20, 2003, to the present.

7.  Entitlement to a compensable evaluation for furunculosis of the external auditory canals.  

8.  Entitlement to an initial increased rating for degenerative joint disease of the right knee, rated as 10 percent disabling from August 21, 2003, to February 28, 2005.  

9.  Entitlement to an initial increased evaluation for residuals of a left knee injury, rated as 10 percent disabling from November 14, 1995, to October 19, 2003, and 20 percent disabling from October 20, 2003, to the present.

10.  Entitlement to an initial increased evaluation for a right hip injury, rated as 10 percent disabling from February 28, 1995, to October 19, 2003, and 20 percent disabling from October 20, 2003, to the present.

11.  Entitlement to an initial compensable evaluation for a muscle tear of the right knee, Muscle Group XIV (muscle tear disability).

12.  Entitlement to an increased evaluation for degenerative disc/joint disease of the thoracolumbar spine, with history of scoliosis, lower dorsal and lumbar spine (low back disability), rated as 20 percent disabling.

13.  Entitlement to a compensable evaluation for left lateral epicondylitis with degenerative joint disease (left elbow disability).

14.  Entitlement to an effective date prior to August 21, 2003, for the grant of entitlement to a total disability rating based upon individual unemployability (TDIU).


ATTORNEY FOR THE BOARD

D. Whitehead, Associate Counsel

INTRODUCTION

The Veteran had active service from May 1954 until August 1957.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2005, October 2005, and August 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.    

In a March 2007 Statement of the Case (SOC), the disability rating for the Veteran's service-connected depression was increased by the RO from 10 percent to 30 percent from August 21, 2003, and 50 percent from December 19, 2005.  Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The Veteran has not withdrawn the appeal as to the issue of the disability rating greater than assigned, and the issue therefore remains in appellate status.  

The Veteran executed a June 2007 Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22), appointing ABS Legal Advocates, P.A. as his representative.  Prior to the September 2010 certification of the matters on appeal, an ABS Legal Advocates, P.A. representative submitted a May 2007 correspondence, withdrawing the organizations representative services in the present matter.  As the initial communication was provided to the Veteran and the Agency of Original Jurisdiction (AOJ) prior to certification of the Veteran's claim, the Board deems this withdrawal effective and in compliance with applicable VA regulations.  See 38 C.F.R. § 14.631, 20.608 (2010).  

In April 2010, the Board remanded the prostate cancer, right arm numbness, right leg numbness, right knee, left knee, muscle tear, skin rash , depression, and right hip claims to the RO, via the Appeals Management Center (AMC), so that the Veteran and his representative could be provided with a Statement of the Case (SOC).  However, the claims file reflects that SOCs were issued with respect to these issues in March 2007.  Subsequently, the claims have been returned to the Board for further appellate review.    

In May 2009, the Board denied a claim for an increased disability rating for residuals of a gunshot wound to the left lower extremity and foot, with secondary degenerative joint disease of the first toe and hammertoe deformity.  However, the RO certified this issue to the Board in September 2010, mistakenly identifying the issue as still in appellate status.  As the issue of an increased disability rating for residuals of a gunshot wound to the left lower extremity and foot has already been decided by the Board by way of the May 2009 decision, it is no longer in appellate status and is not addressed in the decision below.   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of service connection for right arm and right leg numbness and for an earlier effective date for TDIU 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.  The evidence of record does not show that the Veteran's prostate cancer diagnosis is etiologically related to his military service or to a service-connected disability.

2.  The evidence of record dated from August 21, 2003, to December 18, 2005, does not show that the Veteran's depression more closely approximated occupational and social impairments with reduced reliability and productivity.

3.  The evidenced of record dated from December 19, 2005, does not show that the Veteran's depression more closely approximated occupational and social impairments with deficiencies in most areas, such as work, school family relations, judgment, thinking, or mood.

4.  The evidence of record dated from November 14, 1995, to October 19, 2003, indicates that the Veteran's skin rash disability more closely approximated constant exudation or itching, with the use of systematic therapy for 6 weeks or more, but not constantly during a 12 month period.  

5.  The evidence of record dated from October 20, 2003, does not show that the Veteran's skin rash disability more closely approximates constant exudation or itching, with the use of systematic therapy for 6 weeks or more, but not constantly during a 12 month period.    

6.  The evidence of record shows that the Veteran's furunculosis disability is not presently manifested by any associated symptomatology and is considered to be resolved.

7.  The evidence of record does not show that the Veteran's right knee flexion is limited to 45 degrees or his right knee extension is limited to 10 degrees.  

8.  The evidence of record dated from November 14, 1995, to October 19, 2003, does not show that the Veteran's left knee flexion was limited to 45 degrees or his left knee extension was limited to 10 degrees.

9.  The evidence of record dated from October 20, 2003, does not show that the Veteran's left knee flexion is limited to 15 degrees or his left knee extension is limited to 20 degrees.  

10.  The evidence of record dated from February 28, 1995, to October 19, 2003, does not show that the Veteran's right hip flexion was limited to 30 degrees or a limitation of right hip abduction such that motion was lost beyond 10 degrees.  

11.  The evidence of record dated from October 20, 2003, does not show that the Veteran's right hip flexion was limited to 20 degrees.

12.  The evidence of record does not show that the Veteran's muscle tear disability more closely approximates a moderate muscle injury.

13.  The evidence of record does not show that the Veteran's low spine disability is manifested by flexion limited to 30 degrees or less, or favorable anklyosis of the entire thoracolumbar spine.  

14.  The evidence of record does not show that the Veteran's left elbow disability is manifested by forearm flexion limited to 100 degrees, forearm extension limited to 45 degrees, or any other elbow impairment; however, the preponderance of the medical evidence does show that the Veteran's left elbow disability is manifested by degenerative joint disease.


CONCLUSIONS OF LAW

1.  The criteria for service connection for prostate cancer have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010).

2.  The criteria for an initial disability rating in excess of 30 percent for depression from August 21, 2003, to December 18, 2005, and 50 percent from December 19, 2005, to the present have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.41, 4.130, Diagnostic Code 9435 (2010).

3.  The criteria for a 30 percent rating for a skin rash disability from November 14, 1995, to October 19, 2003, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7806, 7815 (2001) (2002).

4.  The criteria for a rating in excess of 10 percent rating for a skin rash disability from October 20, 2003, to the present have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7806, 7815 (2001) (2002).  

5.  The criteria for a compensable disability rating for furunculosis of the external auditory canals have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Codes 7800-7806 (2001) (2002).

6.  The criteria for an initial disability rating in excess of 10 percent for a right knee disability from August 21, 2003, to February 28, 2005, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.14, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2010).

7.  The criteria for an initial disability rating in excess of 10 percent for a left knee disability from November 14, 1005, to October 19, 2003, and 20 percent from October 20, 2003, to the present, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.14, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2010).

8.  The criteria for an initial disability rating in excess of 10 percent for a right hip disability from February 28, 1995, to October 19, 2003, and 20 percent from October 20, 2003, to the present, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.14, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5251, 5252, 5253 (2010).
   
9.  The criteria for an initial compensable disability rating for a muscle tear disability of the right knee, Muscle Group XIV have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.14, 4.40, 4.41, 4.45, 4.55, 4.56, 4.73, Diagnostic Codes 5314 (1996) (2010).

10.  The criteria a disability rating in excess of 20 percent for a low back disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.14, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2010).

11.  The criteria for a 10 percent disability rating, but no greater, for left elbow disability have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.3, 4.6, 4.7, 4.14, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5003, 5206- 5209  (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCCA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010) requires VA to assist a claimant at the time he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to provide; and (3) that the claimant is expected to provide.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  Under Sanders, VA bore the burden of proving that such an error did not cause harm.  Id.  

However, in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA.  Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis.  Id.  As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. 

By letters dated in November 1996, January 1999, February 2000, September 2000, July 2001, December 2001, July 2002, October 2003, November 2004, and April 2006, the Veteran was notified of the information and evidence necessary to substantiate his claims.  VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain.  Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA.  

As to the issue of a higher initial disability rating for the now service-connected depression, skin rash, right knee, left knee, right hip, and muscle tear disabilities, an increased rating is a "downstream" issue.  Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  See Sutton v. Nicholson, 20 Vet. App. 419 (2006) (citing Dingess).  

For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect of such worsening or increase has on the claimant's employment and daily life.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement.  VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation.  Id.

In this case, the Veteran was provided pertinent information with regards to his furunculosis, low back, and left elbow disabilities in the aforementioned notice letters and in the Statement of the Cases (SSOCs) dated in March 2007.  Specifically, VA informed the Veteran of the necessity of providing, on her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability and the effect that the worsening has on her employment and daily life.  The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation.  The Veteran was also provided notice of the applicable relevant diagnostic code provisions.  

VA satisfied the notice requirements under Dingess by the April 2006 letter, wherein VA informed the Veteran as to the type of evidence necessary to establish a disability rating or effective date.  Adequate notice has been provided to the Veteran prior to the transfer and certification of his case to the Board, and thus, compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been met.  Nonetheless, in light of the Board's denial of the Veteran's claims, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding.  

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's relevant service, VA, and private medical treatment records have been obtained.  He was provided appropriate VA medical examinations.  There is no indication of any additional, relevant records that the RO failed to obtain.

With respect to the prostate cancer claim, there is also no duty on the part of VA to provide a medical opinion, because as in Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003), the Veteran has been advised of the need to submit competent medical evidence indicating that he has the disorder in question, and further substantiating evidence suggestive of a linkage between his active service or a service-connected disability and his claimed disorder, if shown.  The Veteran has not done so, and has not advanced any specific contentions or details to support his assertion that service connection is warranted for his prostate cancer.  No evidence thus supportive has otherwise been obtained with respect to the Veteran's claim.  As will be described in greater detail below, the medical evidence of record does not show that the Veteran's prostate cancer diagnosis is etiologically related to his period of active duty or to a service-connected disability.

In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA.    

Legal Criteria for Service Connection

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  That an injury incurred in service alone is not enough.  There must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).

Service connection may also be granted for certain chronic diseases, such as tumors, when such disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, to prove service connection, the record must contain:  (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an 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.  Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

After determining that all relevant evidence has been obtained, the Board must then assess the credibility and probative value of proffered evidence of record as a whole.  See 38 U.S.C.A. § 7104(a); see also Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the instant claim.

Prostate Cancer

Here, the Veteran claims that he is entitled to service connection for prostate cancer.  The Veteran essentially asserts that his prostate cancer diagnosis is related to the mental anguish and physical pain resulting from his service-connected disabilities.  Having reviewed the evidence of record and all pertinent laws, the Board finds that the preponderance of the evidence is against the Veteran's claim in the instance.  Thus, the appeal must be denied.

The Veteran service treatment records are negative for evidence of any symptoms or disorders affecting the prostate.  The July 1957 report of medical examination shows that the genitourinary, anus, and rectum examinations were generally normal prior to his separation from active duty.  On the associated July 1957 report of medical history, the Veteran denied ever having a tumor, growth, cyst, or cancer, frequent or painful urination, or blood in his urine.

VA treatment records show that the Veteran was diagnosed with prostate cancer in May 1997.  Subsequent to this diagnosis, he underwent a prostectomy.  Subsequent treatment records reflect his history of prostate cancer and intermittent treatment for residual disorders following his prostectomy, to include urinary incontinence.  Overall, the VA records are negative for an opinion as to the etiology of the diagnosed prostate cancer.   

Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the claim for service connection for prostate cancer.  While the medical evidence shows that the Veteran was diagnosed with prostate cancer in May 1997, the preponderance of the medical evidence, as discussed below, does not indicate that the Veteran's disorder is related to his military service.  Therefore, the Board concludes that service connection is not warranted in this instance.  

In this regard, the Board finds that the July 1957 report of medical examination, which was completed approximately one month prior to separation, is highly probative as to the Veteran's condition at the time nearest his release from active duty, as it was generated with the specific purpose of ascertaining the Veteran's then-physical condition, as opposed to his current assertion which is proffered in an attempt to secure VA compensation benefits.  Rucker v. Brown, 10 Vet. App. 67, 73 (1993) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of reasons for the Board's decision).  The July 1957 report of medical examination is entirely negative for any symptoms associated with a prostate disorder or cancer and weighs heavily against the claim.  On the associated report of medical history, the Veteran denied ever having a tumor or any genitourinary trouble.  The weight of the service medical records, including the July 1957 report of physical examination, is greater than any subsequent medical treatment records based on a history provided by the Veteran.  Overall, the service medical records support a conclusion that the Veteran did not have a prostate disorder during his military service.  

The Board also notes that the medical evidence does not show a definitive diagnosis of a prostate cancer until May 1997, some forty years after the Veteran's separation from active service.  The Board notes that evidence of a prolonged period without medical complaint and the amount of time that elapsed since active duty service can be considered as evidence against a claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (2000).  Accordingly, his claim has not been established based on the legal presumption given for diseases that manifest within one year from the date of separation.  See 38 C.F.R. §§ 3.307, 3.309.  

Moreover, the Board finds that there is no competent medical evidence that suggests a nexus between the Veteran's prostate cancer diagnosis and his period of active service.  See 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  In fact, none of the medical records provide an opinion as to the etiology of his cancer.  Without evidence of a nexus, there is no basis upon which service connection can be awarded.  

Additionally, the preponderance of the evidence does not show that the Veteran's prostate cancer diagnosis is related to any service-connected disability.  While the Veteran has claimed that his prostate cancer developed due to his mental anguish and physical pain resulting from his service-connected orthopedic disabilities, there is no competent medical evidence of record indicating a relationship between the cancer diagnosis and any of the Veteran's service-connected disabilities.  As the evidence is void of a medical nexus with regards to this aspect of the Veteran's claim, the Board finds that secondary service connection is not warranted.

In essence, the evidence linking the Veteran's prostate cancer to his military service or to a service-connected disability is limited to the Veteran's own assertion that service connection is warranted in this case.  The Board has considered the Veteran's statements that the claimed disorder is related to his service-connected disabilities.  The Board reiterates that medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494  (1992).  However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

In the instant case, however, the evidence of record does not demonstrate that the Veteran, who is competent to comment on symptoms, has the requisite expertise to render a medical diagnosis or to comment on a question of medical causation.  Indeed, detection of a disorder of this nature requires sophisticated medical and diagnostic evaluations of, which the Veteran is not competent to provide.  Essentially, the Veteran has not provided any competent or credible medical or lay evidence relating his prostate cancer diagnosis to his period of active service or to a service-connected disability.  Thus, there is no competent or credible lay or medical evidence to support service connection in this case.

For the Board to conclude that the Veteran's prostate cancer is related to his military service or to a service-connected disability would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility.  38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993).  

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection in this instance.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See Gilbert, 1 Vet. App. at 53

Legal Criteria for Increased Disability Ratings

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  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.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, with respect to the depression, skin rash right knee, left knee, right hip, and muscle tear claims, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  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.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating periods on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the instant claims.

Depression

The Veteran claims that his service-connected depression warrants disability ratings higher than what has been assigned.  By way of brief history, the Veteran was awarded service connection for depression by way of the March 2005 rating decision, wherein the RO assigned a 10 percent disability rating, effective August 21, 2003.  In a March 2007 Statement of the Case (SOC), the RO increased the initial disability rating for depression to 30 percent, effective from August 21, 2003.  Also in the March 2007 SOC, a 50 percent rating was assigned for the Veteran's depression, effective from December 19, 2005.  

The Veteran's service-connected depression is currently rated pursuant to the criteria set forth in Diagnostic Code 9435, which provide the rating criteria for a mood disorder, not otherwise specified.  Under Diagnostic Code 9435, a 50 percent disability rating is warranted when occupational and social impairment is found with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.

A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:  suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the 
ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.

A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as:  gross impairment in thought processes or 
communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  38 C.F.R. § 4.130.

In evaluating psychiatric disabilities, the Board has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DMS-IV).  That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV).   

A GAF score of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a job).  

A score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers).  

A score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningful interpersonal relationships.  See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. 

In December 2004, the Veteran underwent a VA mental disorders examination, at which time the Veteran reported having depression since 1959 or 1960.  He reported that he also had anxiety.  His symptoms were noted to include:  a loss of energy; a loss of interest; poor sleep; feelings of discouragement; and poor concentration.  The Veteran expressed feelings of worry about his numerous health problems, pain, and the death of his family members.  He reported that he was previously employed as a teacher for thirty years prior to his retirement.  The Veteran indicated that he volunteered often with his church; however his involvement had decreased due to his chronic pain.  He reported that he was temporarily separated from his wife, but that they planned to reconcile.  There was no psychosis, or any suicidal or homicidal thoughts reported.

The mental status examination revealed that the Veteran was neatly groomed and dressed.  He demonstrated some chronic pain behavior.  The Veteran was pleasant and cooperative during the examination.  He was oriented and alert.  His speech was spontaneous and logical.  There was no evidence of pressured speech, a flight of ideas, or loose associations.  The examination was negative for evidence of hallucinations, delusions, or paranoia.  The Veteran was not homicidal or suicidal.  He demonstrated a depressed affect, with some psychomotor retardation and anxiety.  His judgment was good and his insight was fair.  A GAF score of 55 was reported, and the examiner determined that the Veteran was able to handle his own finances.    

The Veteran's VA treatment records reflect that he underwent treatment for his psychiatric symptoms.  A September 2005 mental health treatment record shows that the Veteran reported that he felt a little better and that he was sleeping a little longer.  He reported that after going to bed he would awake in a different room, without any knowledge of how he got there.  He reported that he felt frustrated and irritable towards his grandchildren.  The Veteran stated that he felt less anxiety since the start of his prescription medication; however he continued to feel depressed.  He denied any suicidal ideations in the recent past, as well as any current suicidal or homicidal ideations, auditory or visual hallucinations, delusions, or paranoia.  It was noted that he had auditory hallucinations in the past, but that he had no current experiences.  On the mental status examination, the Veteran was neatly dressed, tense, alert, and oriented, with a mildly constricted affect.  His speech was normal, coherent, relevant, and organized, but with some tangentiality at times.  The Veteran's sleep, energy, and motivation were reported as fair.  He was described as goal directed and future oriented.  The Veteran was assessed as having chronic anxiety and depression related to his chronic pain.  The GAF score was recorded as 52, and the examiner recommend an increase in the Veteran's prescription medication.

A December 19, 2005 VA treatment record documents the Veteran's report of depression due to constant pain.  The Veteran denied any suicidal or homicidal ideations, delusions, or paranoia.  On the mental status examination, the Veteran was mildly agitated, and casually and neatly dressed.  He was oriented and demonstrated good eye contact.  His affect was congruent with his depressed mood.  Speech was normal in rhythm, rate, and tone, and was relevant, coherent, and organized.  The Veteran was provided instructions with regards to correcting information in his medical records on three occasions; however, he continued to ask the same question with regards to this matter.  He reported having poor sleep secondary to his pain.  Motivation was fair; memory was grossly intact; and the Veteran was goal directed and future oriented.  The GAF score was reported as 50.

An additional VA individual therapy note also dated on December 19, 2005, shows that the Veteran was well groomed and neatly attired.  During the interview, he provided somewhat tangential answers, and demonstrated limited insight into his problems.  The Veteran displayed poor judgment and compromised logic and reasoning.  He had difficulty recalling remote life experiences that one would usually remember.  The Veteran reported that he cried often.  The Veteran reported that he was married and that he was close with one of his children.  He reported that he retired from his employment as a teacher in 1988; he essentially stated that he had difficulty in this position because he "was crippled."  His symptoms were noted to include irritability, short temper, lost of interest, feelings of emotional distance from others, withdrawal from others, preoccupation of death of others, feelings of hope and despair, and decrease energy.  The examiner determined that the Veteran had been depressed for most of his life.    

Treatment records dated in March 2006 show that the Veteran was casually dressed, alert, and oriented, with a irritable mood.  He demonstrated a somewhat inflexible pattern of thinking, which impaired his ability to effectively interact within the therapeutic process.  The Veteran blamed all of his physical impairments on an in-service ankle injury; he focus was primarily on his perceived injustices he suffered due to his military injury, despite the examiner's attempts to engage the Veteran in cognitive therapeutic interventions.  On a mental status examination, no speech impairments were noted.  The Veteran was assigned a GAF score of 50.  

The Veteran further reported his psychiatric symptoms during June 2006 and July 2006 VA mental health consultations.  The June 2006 documents his reports of continued sleep impairments; he was observed to be irritable and loud at times, with directed and logical thoughts.  The Veteran's speech was mildly slurred, and the examiner recommended a decrease in his prescription medication to reduce over sedation during the day.  The July 2006 treatment record shows that he reported having improved sleep, but that he was sometimes "cranky" towards his family.  He denied any suicidal or homicidal ideations, paranoia, hallucinations, or delusions.  The mental status examination revealed that the Veteran was neatly dressed, calmer, and less angry.  He was alert and oriented, with good eye contact.  His speech was normal in rate, rhythm, and tone; his speech was also noted to be coherent, relevant, and organized.  The Veteran's judgment was intact and his insight was fair.  His recent and remote memory was intact.  The examiner concluded that the Veteran appeared more relaxed and less angry.  His GAF score was 50.

VA records dated from October 2006 to April 2009 show additional assessments of the Veteran's psychiatric symptoms.  Overall, the clinical assessments completed during this time period are negative for evidence of delusions, hallucinations, suicidal or homicidal ideations, or impaired thought process.  On mental status examinations conducted in October 2006, the Veteran presented with mild anxiety, normal speech, poor sleep, grossly intact memory, fair insight, and intact judgment; he was assessed as having moderate/severe mood disorder secondary to chronic pain.  The Veteran reported that he was sleeping well in April 2007, at which time his mood was described as calm and cooperative.  His affect was appropriate to his mood; his thinking was organized, and there was no evidence of delusions, hallucinations, or suicidal or homicidal ideations.  In April 2009, the Veteran reported denied having any severe low moods, hallucinations, suicidal ideations, or other psychotic symptoms.  He reported that he had a good relationship with his wife.  The associated mental status examination showed that the Veteran's speech was fluent, thought process was logical, and cognition was grossly intact.  His insight and judgment were fair.  His GAF scores for this time period ranged from 45 to 50.  

Analysis- Disability Rating from August 21, 2003, to December 18, 2005

Based on the foregoing, the Board finds that the preponderance of the evidence does not show that a disability rating in excess of 30 percent is warranted for the Veteran's depression from August 21, 2003, to December 18, 2005.  The medical evidence dated throughout this time period shows that the Veteran's psychiatric disability was primarily manifested by social and occupational impairments characterized by:  sleep disturbances, anxiety, decreased energy, poor concentration, depression, episodes of depressed or mildly constricted affect, some psychomotor retardation, feelings of frustration, and irritability.  While the Veteran reported having decreased energy, irritability, and a depressed mood, he reported he was active in his church.  Here, the Board notes that a September 2005 VA treatment record shows that the Veteran was goal directed and future oriented.  His GAF scores for this time period ranged from 45 to 55, which is indicative of  serious moderate impairments in social and occupational functioning.  Overall, the evidence dated during this period on appeal does not show that the Veteran's psychiatric disability was manifested by impairments of speech, panic attacks more than work a week, difficulty understanding complex commands, impaired memory, judgment, or abstract thinking, or difficulty in establishing and maintaining effective work and social relationships.  Given the above evidence, the Board does not find that the Veteran's symptoms were consistent with the type of impaired thinking, judgment, and motivation required for a 50 percent disability rating, and clearly, the evidence does not demonstrate deficiencies in most areas or total social and industrial impairment for even higher ratings under the applicable rating criteria.  Therefore, a disability rating in excess of 30 percent is not warranted from the effective date of service connection to December 18, 2005.  

Analysis- Disability Rating from December 19, 2005

In examining the evidence for this period on appeal, the Board concludes that the findings do not approximate the criteria for the assignment of a higher disability rating for PTSD greater than 50 percent from December 19, 2005, to present.  The evidence of record dated during this time period shows that the Veteran's PTSD has primarily been manifested by evidence of occupational and social impairments with reduced reliability and productivity due to such symptoms as:  sleep disturbances, disturbances of mood and motivation, depression, somewhat tangential speech, poor judgment, comprised logic and reasoning, irritability, difficulty with recall of remote events, feelings of detachment and withdrawal from others, and preoccupation of thoughts.  The October 2007 VA treatment record shows that his psychiatric disability was assessed as moderate/severe.  His GAF score for this time period ranges from 45 to 50, which is indicative of serious impairments in social and occupational functioning.   

Overall, the Board finds that the preponderance of the evidence does not show that the Veteran's PTSD more closely approximates the criteria for the next-higher 70 percent disability rating.  Throughout this period of on appeal, there is no evidence that the Veteran reported suicidal ideations, engaged in obsessional rituals that interfered with his routine activities, or that he suffered from spatial disorientation.  In this regard, the VA treatment records dated during this time period are all negative for reports of suicidal thoughts or disturbances in orientation.  While the Veteran is also noted to suffer from depression, there is no objective evidence that indicates he has near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively.  Moreover, there is no objective that the Veteran has neglected his personal appearance and hygiene, as all of the medical evidence illustrates that he was adequate in his appearance and hygiene.   With respect to impaired impulse control, the Veteran has reported experiencing irritability and a short temper.  However, there is no reported or objective evidence that the Veteran has impaired impulse control or reports of violence.  Essentially, the evidence of record does not support a finding that the Veteran's PTSD more closely approximates occupational and social impairments with deficiencies in most areas to warrant the next-higher 70 percent rating.  

Skin Disabilities

Here, the Veteran seeks a higher rating for his service-connected furunculosis disability and a higher initial rating for his service-connected skin rash disability.  The Veteran's furunculosis disability of his external auditory canals is currently assigned a noncompensable disability rating under Diagnostic Code 7899-7806.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  Similarly, the Veteran's skin rash disability of the upper lower extremities, face, and neck is also rated under Diagnostic Code 7806, with an initial 10 percent rating assigned under this diagnostic code.  

Skin Rash Disability

The Veteran's initial claim for service connection for a skin rash disability of the upper and lower extremities, face, and neck was received by the RO in November 1995.  He was awarded service connection for the skin rash disability by way of an August 2003 Board decision.  In the October 2005 rating decision, the RO effectuated the grant of service connection, and assigned an initial 10 percent disability rating under Diagnostic Code 7806.  The relevant diagnostic criteria for the evaluation of skin disabilities have been revised during the pendency of this appeal.  The effective date of the change was August 30, 2002.  See 67 Fed. Reg. 49590, 49596-99 (July 31, 2002).  The amended rating criteria can be applied only for periods from and after the effective date of the regulatory change.  The prior criteria can apply only the periods before the effective date of the regulatory change.  See VAOPGCPREC 3-00 (Apr. 10, 2000).  In the present case, the Veteran's disability was considered under both the old and new criteria, and he was notified of both the old and the revised regulations.  Accordingly, there is no prejudice to the Veteran in evaluating the Veteran's disability pursuant to both sets of criteria.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Pursuant to the old schedule of ratings for skin disorders, Diagnostic Code 7806 provided the rating criteria for eczema.  See 38 C.F.R. § 4.118 (2001).  Under Diagnostic Code 7806, a 10 percent rating was assigned for exfoliation, exudation or itching of an exposed surface or extensive area.  A 30 percent disability rating was assigned in cases of constant exudation or itching, extensive lesions, or marked disfigurement.  38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813, 7814 (2001).  Under the revised Diagnostic Code 7806, dermatitis or eczema is assigned a 30 percent rating if the disease covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent, maximum, rating is warranted if the disease covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; if constant or near constant systematic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2002).

The Board notes that effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses the skin.  Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  However, these amendments apply to applications for benefits received by VA on or after October 23, 2008.  As the Veteran's claims were already pending as of that date, these new regulations do not apply.  The Board recognizes that these regulations appear to provide for consideration of the new regulations upon request by the Veteran.  However, in this case, no such request has been made.  Furthermore, the Board notes that, even in the event such requests are made, the regulations specifically prohibit application of these regulations prior to October 23, 2008.
  
The revised schedule of provides additional ratings for skin disorders under Diagnostic Code 7800 (disfigurement of the head, face, or neck), Diagnostic Codes 7801-7805 (scars), or Diagnostic Code 7806 (dermatitis), depending on the predominant disability.  Under Diagnostic Code 7800, disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent evaluation.  The eight characteristics of disfigurement are: scar five or more inches (13 or more centimeters) in length; scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).  Id. at Note (1).  

Under Diagnostic Code 7801 regarding scars, other than head, face, or neck, that are deep or cause limited motion, a 20 percent rating is warranted if the skin disability affects an area or areas exceeding 12 square inches (77 sq. cm.).  A 30 percent rating is assigned for areas exceeding 72 square inches (465 sq. cm.).  A maximum 40 percent rating is assigned for areas exceeding 144 square inches (929 sq. cm.).  

Under Diagnostic Code 7802, a 10 percent rating is warranted for scars that are superficial, do not cause limited motion, and cover area of 144 square inches (929 sq. cm).  A superficial scar, as defined in Note 2, is one not associated with underlying soft tissue damage.  Under Diagnostic Code 7803, a 10 percent rating is warranted for a scar that is superficial and unstable. An unstable scar is defined at Note 1 as one where, for any reason, there is frequent loss of covering over the scar.  A superficial scar is defined in Note (2) as one not associated with underlying soft tissue damage.  Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination.  A superficial scar is again defined in Note (1) as one not associated with underlying soft tissue damage.  Under Diagnostic Code 7805, a scar may also be rated based upon limitation of function of the part affected.

Under Diagnostic Code 7815, bullous disorders, a skin disability covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period warrants a 30 percent disability rating.  A skin disability covering more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating.  Otherwise, the disability is rated based on disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.  38 C.F.R. § 
4.118, Diagnostic Code 7815

The Board notes that other remaining diagnostic codes for skin disabilities that provide a compensable rating are not more appropriate because the facts of the case do not support their application.  See 38 C.F.R. § 4.118, Diagnostic Codes 7807 (American leishmaniasis), 7808 (Old Word leishmaniasis), 7809 (discoid lupus erythematosus or subacute lupus erythematosus), 7811 (tuberculosis luposa), 7813 (dermatophytosis), 7816 (psoriasis), 7818 (malignant skin neoplasms), 7819 (benign skin neoplasms), 7820 (infections of the skin not listed elsewhere, including bacterial, fungal, viral, treponemal and parasitic diseases), 7821 (cutaneous manifestations of collagen-vascular diseases not listed elsewhere), 7822 (papulosquamos disorders not listed elsewhere), 7823 (vitiligo), 7824 (disease of keratinization), 7825 (uriticaria), 7826 (primary cutaneous vasculitis), 7827 (multiforme erythema; toxic epidermal necrolysis), 7828 (acne), 7829 (chloracne), 7830 (scarring alopecia), 7832 (hyperhidrosis), and 7833 (malignant melanoma).

The Veteran's VA treatment records show frequent treatment for his skin rash disability.  These records show that his disability first manifested in February 1995, at which time the Veteran developed a rash with lesions after he was treated with several antibiotics for an unrelated disability.  In May 1995, the Veteran was noted to have moderately severe actinic damage on the scalp, ears, face, neck, and upper extremities.  He also had telangiectasias and sole elastosis of the face, and scratch purpura of his forearms.  He was prescribed topical ointment to treat the itchy blisters observed on his hands.  Treatment records dated in July 1995 reflect that the Veteran had several lesions on his hands and fingers; he was noted to experience a lot of pruritus.  Treatment records dated in December 1995 show that the Veteran suffered from lesions on his hands and forearms.  These record show that between April 1995 and July 1995, he was prescribed the use of topical creams and ointments, antibiotics, antihistamine medication, and medicated soap.  In February 1996, the Veteran was noted to have very few areas of active infection on his upper extremities, and in April 1996, his upper extremities were clear of any active infection. 

The Veteran underwent a VA skin examination in February 1996, at which time he was noted to have developed a skin rash with blister formation on his face, ears, and hands in February 1995.  The Veteran reported that since that time his rash had spread to his arms, back, and neck.  He stated that the blisters occurred intermittently and that when they went away, he was left with reddish spots at the site of the blisters with some itching.  He stated that the skin lesions had never really resolved.  The Veteran did not have any blisters at the time of the examination, but had multiple skin lesions with itching.  The subjective complaints were listed as burning and itching of his skin lesions.  On examination, the Veteran presented with multiple small reddish, maculopapular lesions on his hands and arms.  A few lesions were noted on the back of the Veteran's neck.

In March 2000, the Veteran's skin was further assessed during a VA skin examination.  He reported experiencing a rash on his face and ears, which had spread to his arms and the back of his neck.  He reported experiencing itching once the rash resolved; he reported that he was prescribed antibiotics for his itching.  
On the physical examination, the Veteran was not observed to have any lesions on his face.  Two small residual lesions, which were drying, were observed on the neck, lesions which were noted to previously be furuncles.  One lesion was slightly reddened, but was nontender.  He did not have any other localized furuncle seen on examination.  There was no significant ulceration, exfoliation, or crusting observed.  The Veteran was also noted to sometimes have itching and some dryness about the hands, with excoriation.  On examination, the hands were slightly roughed on the finger, which had the appearance of an eczematiod dermatitis.  

In November 2001, the Veteran underwent an additional VA skin examination.  He reported his history of multiple bullous lesions, many hemorrhagic, on his hands, arms, toes, and earlobes, with increased fragility of the skin.  The Veteran further reported an acute onset of severe symptoms, to include severe pruritus and pain with weeping and bleeding of the lesions, and hypersensitivity to wind and cold temperatures.  The physical examination revealed multiple fragile vesicles and bullae on the dorsum of the hands in a bilateral distribution.  The examiner noted multiple areas of denoted/eroded epidermis with underlying hemorrhagic crusting.  Bullae and vesicles were positive for cabnerization.  Additionally, the examiner noted multiple areas of post-inflammatory pigment changes and superficial scarring.  There was no evidence of milia or hypertrichosis noted on the examination.  

On October 20, 2003, the Veteran underwent a VA skin examination.  He reported that his symptomatology was treated with the use hydroxychloroquine, an oral antimalarial medication, and various sundry topical medications since 1995.  The physical examination revealed two small lesions on the dorsum of the hand on the right; they were red and slightly raised.  The Veteran was noted to have some minor circular scars on his extremities.  The examination was negative for acne, chloracne, scarring alopecia, alopecia areata, and hyperhidrosis.  

In August 2006, the Veteran underwent an additional VA skin examination.  The Veteran reported a history of bullous eruptions of the extremities on his foot, legs, arms, scalp, and neck.  He reported that he was treated by a dermatologist with an hydroxychloroquine twice weekly since 1995.  However, he still experienced some blisters and had pruritus all over.  He reported that his condition had improved since its onset.  The physical examination revealed pink papules, erosions, and hypopigmented papules consistent with ruptured bullea on the bilateral dorsal hands and forearms.  No lesions were observed on the face or neck.  Diffuse actinic damage of the face and scalp was also noted.  The examiner determined that greater than 5 percent but less than 20 percent of exposed areas were affected.  Greater than 5 percent and less than 20 percent of the Veteran's total body was affected.  The Veteran was noted to be unemployed.  However, he reported having problems shaking hands with people because he worried that his disorder may be contagious.

Additional VA medical records show further treatment of the Veteran's bullous eruptions disability.  Treatments records dated from December 2000 to January 2009 show that the Veteran was prescribed the use of a topical corticosteroid cream, an antibiotic ointment, antihistamines, a vitamin based cream, and medicated body wash.  A March 2003 letter from his VA treatment physician documents that the Veteran was essentially free of lesions for the first time since the onset in 1995, likely because he was prescribed hydroxychloroquine, twice weekly, in December 2002.  In November 2005, the Veteran was observed to have actinic keratosis of the right frontal scalp and two or three small ones on his ears.  The areas were treated with liquid nitrogen.  A January 2009 treatment record shows that a physical examination revealed no skin rashes, sores, or lesions.   

Analysis- Disability Rating from November 14, 1995, to October 19, 2003

Having reviewed the evidence and the pertinent laws, and resolving all doubt in the Veteran's favor, the Board determines that the Veteran's bullous eruptions disability meets the criteria for an initial disability rating of 30 percent under Diagnostic Code 7806 from the effective date of service connection until October 19, 2003.  As noted above, for the next higher 30 percent disability rating to be warranted under either the old or new rating criteria, the competent medical evidence of record would have to show that the skin disability was productive of constant exudation or itching, extensive lesions, or marked disfigurement, covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or requires constant or near constant systematic therapy, such as the use of corticosteroids or immunosuppressive drugs, for a six weeks or more, but not constantly, during the past 12 month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2001) (2002).  Although the evidence of record shows the Veteran's skin disability varied in its severity during this time period, his disability was primarily manifested by itchy lesions on his upper extremities and face, with itching, and intermittent exudation and pruritus.  The Veteran was consistently treated for his symptoms with the use of antibiotics, antihistamines, and topical creams and ointments.  Moreover, as of December 2002, he was prescribed the use of hydroxychloroquine, an oral antimalarial (autoimmune suppressive) medication, which he uses twice weekly.  In the March 2003 letter, the Veteran's VA treating physician essentially reported that the Veteran was free from any skin symptomatology likely due to his use of this medication.  Thus, the preponderance of the evidence for this time period shows that the Veteran's skin rash disability more closely approximated constant exudation or itching, with the use of systematic therapy for 6 weeks or more, but not constantly during a 12 month period.  Accordingly, the Board finds that when all doubt is resolved in the Veteran's favor, a 30 percent disability rating is warranted for his bullous eruptions disability from November 14, 1995, until October 19, 2003.  

However, the Board finds that a disability rating in excess of 30 percent is not warranted under either the old or new version of Diagnostic Code 7806 for this time period.  Initially, the Board notes that the old version of Diagnostic Code 7806 only provided for a maximum, 30 percent rating.  Thus, a rating in excess of the 30 percent assigned herein is not assignable under the old version of this diagnostic code.  The next-higher, 60 percent disability rating is assigned under the new version of Diagnostic Code 7806 if the skin disability covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; if constant or near constant systematic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.  In this case, the preponderance of the medical evidence dated up until October 19, 2003, shows that the Veteran's skin disability was primarily confined to his upper extremities, face, and neck.  There is no objective evidence that the disability covered more than 40 percent of his entire body or more than 40 percent of the exposed areas affected.  While the medical evidence shows that the Veteran has used an oral immunosuppressive medication since December 2002, the use of the medication is not best characterized as constant or near constant, as the Veteran only uses the medication twice a week.  Thus, the evidence of record does not support a disability rating in excess of 30 percent under Diagnostic Code 7806.

Analysis- Disability Rating from October 20, 2003, to the Present

With regards to the Veteran's skin rash disability from October 20, 2003, to the present, the Board finds that a rating in excess of 10 percent rating is not warranted.  The evidence dated from October 20, 2003, does not show that the Veteran's skin rash disability more closely approximates constant exudation or itching, extensive lesions, or marked disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2001).  In this instance, the medical evidence for this time period shows that the Veteran's skin rash disability has primarily been manifested by some small lesions on hands, scalp, and ears, without any objective evidence of constant itching, exudation, or marked disfigurement.  While he reported in August 2006 that he still experienced some blisters and pruritis, the preponderance of the evidence for this period does not show that his symptoms are best characterized as constant.  Moreover, the objective evidence of record does not show that the disability covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or requires constant or near constant systematic therapy, such as the use of corticosteroids or immunosuppressive drugs, for a six weeks or more, but not constantly, during the past 12 month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2002).  Indeed, the August 2006 VA examiner determined that the skin disability covers greater than 5 percent but less than 20 percent of both the entire body and the exposed areas affect.  At that time, the Veteran reported that his skin disability had improved since its onset.  He was noted to be free of any skin rashes, sores, or lesions in January 2009.  The medical records show that he was prescribed the use of topical creams,  ointments, and antihistamines to treat his symptoms during this time.  When viewed in its entirety, the evidence dated from October 20, 2003, to the present does not show that the Veteran's skin rash disability more clearly approximates the criteria for a 30 percent disability rating under either the old or new version of Diagnostic Code 7806. 

Consideration has also been given to whether high disability ratings are warranted for the periods on appeal under a different disability rating applicable to skin disabilities.  In this regard, the Board recognizes the November 2001 VA examination report documents the presence of multiple areas of superficial scarring.  However, disability ratings higher than what has been assigned are not warranted under Diagnostic Code 7800 (disfigurement of the head, neck, or face), as the objective medical evidence does not indicate any visible or palpable tissue loss and either a gross distortion or asymmetry of one feature or paired set of features, or with at least two characteristics of disfigurement.  Moreover, there is no clinical evidence dated after the November 2001 VA examination which indicates that the Veteran's skin disability meets the criteria for higher disability ratings under Diagnostic Code 7800.

The Board finds that higher disability ratings are not warranted under Diagnostic Codes 7801 and 7802 (which evaluate scars other than on the head, face, or neck),  7803 (which evaluates an unstable superficial scar manifested by frequent loss of covering of the skin over the scar), and 7804 (which evaluates a superficial scar which is painful on examination).  Specifically, the Board notes that these diagnostic codes only allow for a maximum 10 percent disability rating, and thus would not provide a basis for a rating in excess of what has been assigned and upheld herein.  Diagnostic Code 7805 (which instructs the rater to evaluate a scar according to limitation of function of the affected part) is not applicable, as there is no lay or medical description of frequent loss of skin on his upper and lower extremities, face, or neck.  Further, while he has reported at times experiencing hypersensitivity of his skin due to wind and cold temperatures, there is no indication that his condition is physically painful or has resulted in limited motion of the affected areas.  With regards to higher ratings under Diagnostic Code 7815 (bullous disorders), the Board notes that the rating criteria for bullous disorders under Diagnostic Code 7815 are the same as those provided  under Diagnostic Code 7806.  As explained above, the Veteran's disability does not more closely approximate the criteria for the next-higher ratings under Diagnostic Code 7806, and therefore does not meet the criteria for a 60 percent rating and a 30 percent rating, respectively, under Diagnostic Code 7815.  Essentially, the evidence of record does not indicate that disability ratings in excess of 30 percent and 10 percent, respectively, are warranted under any other diagnostic code relevant to skin disabilities.    

Furunculosis

Here, the claims file shows that the Veteran filed a claim for a compensable disability rating for his furunculosis disability of the external auditory canals in July 2000.  The claims file shows that the furunculosis disability has been rated as noncompensable under Diagnostic Code 7806, which is described in detail above.  The additional diagnostic codes relevant to skin disabilities described above, to include the August 30, 2002 revisions, are applicable to the Veteran's furunculosis disability.

VA treatment records, which are dated throughout the pendency of the appeal, have been associated with the claims file.  While these records show treatment for other dermatological disorders, they are negative for reports or treatment of the service-connected furunculosis of the external auditory canals disability.  Of particular note is an August 2008 treatment record showing that no skin rashes, sores, or lesions were observed on a clinical examination.

The Veteran underwent a VA skin examination in August 2006.  The examiner noted that the Veteran was initially diagnosed with furunculosis of the external auditory canals in 1954, at which time he was given medication that resolved his symptoms.  The Veteran reported that he did not have any subsequent problems with this disability.  No obvious lesions were observed on the ear canals on the physical examination.  The examiner again noted that the Veteran's prior problem was resolved.  The diagnosis was resolved condition in the external auditory canals.  With regards to the functional effects of the Veteran's diagnosis, the Veteran reported that he was not employed.  No functional effects were recorded with respect to the furunculosis disability.

Based on the foregoing, the Board finds that a compensable disability rating is not warranted for the Veteran's service-connected furunculosis disability.  The evidence of record does not show any treatment for this disability during the period currently appeal.  The August 2006 VA skin examination report provides the most comprehensive medical assessment of the Veteran's disability.  The August 2006 VA skin examination report shows that, following a clinical evaluation, the service-connected furunculosis is resolved.  Indeed, the Veteran reported at that time essentially that he had not had any problems with his furunculosis since 1954.  Essentially, there is no objective evidence that the Veteran's furunculosis is presently manifested or that the disability is treated by the intermittent use of systemic therapy for any period of time during the appeal.  As the medical evidence indicates that the Veteran's furunculosis is resolved, there is no basis to warrant a compensable disability rating with respect to this disability.  Thus, the next-higher, 10 percent disability is not warranted.  

The Board has also considered whether a higher disability rating is warranted under other diagnostic codes relevant to skin disorders.  However, there is no other diagnostic code warranting an increased rating for the skin disability.  As previously noted, other skin diagnostic codes from 7800 to 7820 provide for ratings greater than 10 percent with a showing of disfigurement, scars, bullous disorder, psoriasis, dermatitis requiring systemic therapy, infection or skin cancer.  The medical evidence simply does not indicate disfigurement, scars, bullous disorder, psoriasis, infection and cancer related to the service-connected furunculosis disability, and nor does the Veteran claim such symptomatology.  Given that the evidence does not show any current manifestations of the Veteran's furunculosis disability, clearly, these alternative diagnostic codes are not applicable here. 

Right and Left Knee Disabilities

Here, the Veteran claims that higher disabilities ratings are warranted for both his service-connected right knee and left knee disabilities.  The claims file reflects that the RO assigned an initial 10 percent disability rating for the Veteran's right knee disability in the October 2005 rating decision; the 10 percent rating was assigned from August 21, 2003, to February 28, 2005.  The Veteran disagrees with this initial 10 percent rating for his right knee disability for this time period.  With respect to his left knee disability, the RO assigned an initial 10 percent disability rating from November 14, 1995, to October 19, 2003, and a 20 percent disability rating from October 20, 2003, by way of the October 2005 rating decision.  The Veteran disagrees with both the initial 10 percent rating and the 20 percent rating assigned for his left knee disability.

The claims file reflects that the Veteran's right knee disability has been rated under Diagnostic Code 5003, degenerative arthritis, and his left knee disability has been rated under Diagnostic Code 5260, based on a limitation of flexion.  

Diagnostic Code 5003 provides the rating criteria for degenerative arthritis.  This diagnostic code 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.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  When, however, the limitation of motion of the specific joint or joints involved is no compensable under the diagnostic codes, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.  Diagnostic Code 5003.  For the purpose of rating disability from arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45(f).

Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent evaluation, limitation to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrant a 30 percent evaluation. 
Diagnostic Code 5260.   Diagnostic Code 5261 provides that limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation to 15 degrees warrants a 20 percent evaluation and limitation to 20 degrees warrants a 30 percent evaluation. Diagnostic Code 5261.  The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint.  See VAOPGCPREC 9-2004.

Standard motion of a knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

Right Knee

Turing the to the merits of this claim, the Veteran's VA medical records show treatment for his service-connected right knee disability.  An April 2003 radiology report shows a diagnosis of mild degenerative joint disease (DJD) of both knees.  His right knee was assessed during an April 2003 surgical orthopedic consultation, following the Veteran's report of suffering a fall with subsequent medial joint line tenderness, immediate swelling, popping, and snapping of his right knee.  The clinical examination revealing 1+ effusion in the right knee and right knee range of motion from 0 degrees to approximately 110 degrees.  He was noted to have tenderness along the medial joint line.  Discomfort was demonstrated on the McMurray's test; however, there was no palpable click, snap, or pop.  The Veteran's collateral and cruciate ligaments were intact.  Similarly, his distal neurovascular examination was intact.  

In a May 2003 letter, the Veteran's VA treating physician reported that the Veteran had bilateral knee arthritis.  The physician stated that a magnetic resonance imaging (MRI) study of the knees revealed medial and lateral meniscus tears.  The physician noted that the Veteran had an increase in progression of his right knee symptoms.

Subsequent VA treatment records show further assessment of the Veteran's right knee.  In August 2003, the Veteran was noted to have undergone a right knee scope during the previous month; the physical examination revealed minimal effusion and tenderness at the medial joint line.  An August 2004 physical examination revealed 1+ effusion in the right knee and pain with range of motion testing.  The Veteran had a tender medial joint line; however his ligaments were stable.  Mild synovitis was noted.  An August 2004 radiology report again showed the impression of minimal DJD of both knees.  A January 2005 radiology report shows an impression of right knee moderately advanced DJD, previous arthroscopy and partial medial meniscectomy, degenerative lateral meniscus without surface tear, medial compartment bone edema and osteochondral defects, and small effusion.  

The Veteran underwent a VA joints examination in December 2004, at which time he reported having right knee pain, popping, stiffness, swelling, giving way, and intermittent heat and redness.  He reported taking prescription medication for his pain.  The Veteran denied any flare ups or dislocations of his right knee; however, he reported that is knee hurt with any movement.  The examiner noted that the Veteran was retired and that he used crutches.  The physical examination revealed flexion to 100 degrees, with pain, and extension to zero degrees.  No changes were reported of the right knee range of motion following repetitive use.  There was no objective evidence of painful motion, edema, effusion, instability, weakness, redness, heat, abnormal movement, or guarding of movement.  Tenderness was appreciated of the medial and lateral joint lines.  The Veteran was noted to have palpable crepitance with movement of the right knee.  No ankylosis was observed and there were no constitutional signs of inflammatory arthritis.  The Veteran was observed to have an antalgic gait, limping on his right lower extremity.  He presented in a wheelchair and was observed to walk very slowly.  

Based on a thorough review of the record, the Board finds that the preponderance of the evidence dated during the period on appeal is against an evaluation in excess of 10 percent for increased rating for a right  knee disability under Diagnostic Codes 5260 or 5261.  As noted above, a 10 percent disability rating is warranted under Diagnostic Codes 5260 and 5261 for limitation of flexion of the knee to 45 degrees and limitation of extension of the knee to 10 degrees.  Here, the medical evidence of record shows that the Veteran's right knee range of motion was from 0 to at least 100 degrees, with pain.  Thus, the medical evidence of record does not show that a compensable disability rating is warranted under either Diagnostic 5260 or 5261.

While the medical evidence shows that the limitation of motion of the left knee warrants a noncompensable rating under either Diagnostic Codes 5260 or 5261, the Board notes that the Veteran's disability is rated under Diagnostic Code 5003.  As noted above, this diagnostic code provides that when the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  The medical evidence in this case reflects a diagnosis of DJD of the right knee.  Based on objective, albeit noncompensable, findings of limitation of motion (including the Veteran's subject report of the right knee pain, swelling, intermittent heat and redness, and giving way) and arthritis, the Board finds that the Veteran meets the criteria for the currently assigned disability rating of 10 percent under Diagnostic Code 5003.

In so determining, the Board recognizes the Veteran's reports of right knee pain, swelling, intermittent heat and redness, and giving way.  While the Veteran has reported experiencing these symptoms, to include pain, he has not asserted any changes in the range of motion of his left knee following the most recent VA examination. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In this case, however, the Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's right knee disability are contemplated in the current evaluation.  As noted above, the medical evidence shows that the range of motion of the Veteran's right knee was limited to 110 degrees in April 2003, and to 100 degrees, with pain, in December 2004.  Even taking into account the limitation of motion due to pain, his left knee disability is still noncompensable under VA regulations.  38 C.F.R. §4.40, 4.45; DeLuca, supra.

Consideration has also been given as to whether any other diagnostic codes pertaining to the knee are applicable in this case.  However, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5257 (recurrent subluxation or lateral instability), 5258 (dislocation of semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of these conditions.  While the Veteran has reported his right knee giving way, the December 2004 VA examination report does not show any objective finding of instability, dislocation, or locking of the right knee.  Additionally, the medical evidence does not show that the Veteran has undergone any surgical procedures on his right knee during the period on appeal.  Therefore, the application of a different diagnostic code is not warranted.

Left Knee Disability

Here, the Veteran's VA treatment records reflect treatment for his left knee symptomatology throughout the pendency of the appeal.  A September 1991 treatment record documents the Veteran's report of having left knee pain for years; on examination he was noted to have good range of motion of his knees, but with cracking and popping.  He was noted to have multiple arthralgias, to include the knees, in April 1997.  

The Veteran underwent a VA joints examination in February 1996, at which time he reported a history of locking and swelling of his left knee.  Objective testing of the left knee revealed full extension and flexion to 120 degrees.  He had no gross effusion.  Testing revealed negative McMurray's and Lachman's tests, anterior posterior drawer signs, and varus or valgus instability.  The Veteran did exhibit pain along the medial joint line, especially with internal rotation of the tibia and flexion and extension.  An X-ray examination of the left knee revealed DJD.  

In March 2000, the Veteran underwent an additional VA examination, at which time he reported having some occasional aching and soreness in his left knee.  He stated the he noticed his symptoms more if he stood all day.  He denied any additional pain, swelling, popping, dislocation, easy fatigue, incoordination, or flare ups.  On the physical examination, slight tenderness was noted of the medial plica area of the left knee.  Range of motion was from 0 to 130 degrees, without pain.  The Veteran had minimal crepitation.    

VA records document the Veteran's report of left knee symptomatology.  In October 2003, the Veteran reported suffering numerous falls due to his left ankle and knee giving way.  The VA records reflect that the Veteran underwent a left knee arthroscopy and partial medial meniscectomy in 2003.  

On October 20, 2003, the Veteran's left knee was further assessed during a VA joints examination.  He reported having pain in his left knee and was noted to use crutches for ambulation.  The Veteran denied any episodes of dislocation.  He was noted to be unemployed.  The physical examination revealed left knee flexion to 30 degrees and full extension.  The movements were noted to be painful and the Veteran stopped when the pain began.  The left knee joint was not found to have additional limitations of motion due to fatigue, weakness, or lack of endurance.  While there was objective evidence of painful motion, there was no evidence of edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding movement.  No ankylosis was noted.  

In August 2006, the Veteran underwent an additional VA joints examination, at which time he essentially reported having constant left knee pain.  He stated that he knee might swell at the end of every day and that he had swelling with ambulation.  The Veteran reported crepitus with walking and weakness in his knee; however, he denied any locking or giving way of the left knee.  He reported that he wore a knee brace.  Flare ups were reported to occur only with extended use of the left knee.  The Veteran was noted to use crutches for his ambulation and reported that he could only ambulate 150 to 200 feet before experiencing knee problems.  He denied any episodes of dislocation or subluxation.  The Veteran was noted to be retired as of 1988 and he reported having minimal daily activities.  He reported being able to perform his activities of daily living with no significant problems.  

During the physical examination, the Veteran reported having pain with any movement of the knee and slight tenderness in the area of the superior patellar tendon.  The physical examination of the left knee revealed left knee flexion to 130 degrees, which was relatively painless, and extension to 0 degrees, with no significant discomfort.  Minimal crepitus was noted.  There was no abnormality to varus or valgus stress.  Motor and sensory examinations of the lower extremities were grossly normal, equal and symmetrical.  There was no change in the examination with repetitive motion.    

Having reviewed the foregoing, the Board finds that the preponderance of the evidence dated from November 14, 1995 to October 19, 2003, does not show that a disability rating in excess of 10 percent is warranted for the left knee disability based on a limitation of motion.   See Diagnostic Codes 5260, 5261.  As noted above, a 10 percent disability rating is warranted under Diagnostic Codes 5260 and 5261 for limitation of flexion of the knee to 45 degrees and limitation of extension of the knee to 10 degrees.  Here, the medical evidence of record shows that the Veteran's left knee range of motion was from 0 to at least 120 degrees.  Thus, the medical evidence of record does not show that a compensable disability rating is warranted under either Diagnostic 5260 or 5261.

Also applicable to the Veteran's left knee disability is Diagnostic Code 5003, which pertains to degenerative arthritis.  As previously noted, Diagnostic Code 5003 allows for the assignment of a 10 percent disability rating when the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  The medical evidence in this case reflects a diagnosis of DJD of the left knee.  Based on objective, albeit noncompensable, findings of limitation of motion (including the Veteran's subject report of the left knee pain, swelling, locking, soreness, and aching) and arthritis, the Board finds that the Veteran meets the criteria for the currently assigned disability rating of 10 percent under Diagnostic Code 5003 from November 14 1995, to October 19, 2003.

With regards to the left knee disability from October 20, 2003, to the present, the preponderance of the evidence does not show that a disability rating in excess of the currently assigned 20 percent is warranted.  Under Diagnostic Codes 5260 and 5261, the next-higher a 30 percent evaluation is warranted when flexion of the knee is limited to 15 degrees and extension is limited to 20 degrees.  Here, the October 20, 2003, VA examination report shows that the Veteran's left knee flexion was limited to 30 degrees due to pain and full extension.  The subsequent August 2006 VA examination report revealed left knee range of motion was from 0 to 130 degrees, without pain.  Thus, the medical evidence for this time period does not show that the Veteran's left knee disability is manifested by flexion to 30 degrees or extension to 20 degrees.  Accordingly, a disability rating in excess of the currently assigned 20 percent is not warranted for this time period based on a limitation of motion.

Consideration has also been given as to whether any other diagnostic codes pertaining to the knee are applicable in this case.  However, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5257 (recurrent subluxation or lateral instability), 5258 (dislocation of semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of these conditions.  Indeed, the Veteran denied having any episodes of dislocations or subluxations of his left knee during the October 2003 and August 2006 VA examinations.  While the Veteran has reported his left knee pain and swelling, the October 2003 and August 2006 VA examination report does not show any objective finding of instability, dislocation, or locking of the left knee.  Therefore, the application of a different diagnostic code is not warranted.

In so determining, the Board recognizes the Veteran's reports of left knee pain and swelling.  While the Veteran has reported experiencing left knee pain, swelling, and weakness, he has not asserted any changes in the range of motion of his left knee following the most recent VA examination.  As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In this case, however, the Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's right knee disability are contemplated in the current evaluation.  As noted above, the medical evidence shows that the range of motion of the Veteran's left knee demonstrated flexion to at least 30 degrees, with pain, and full extension.  Even taking into account the limitation of motion due to pain, his left knee disability is still does not warrant higher disability ratings under VA regulations.  38 C.F.R. §4.40, 4.45; DeLuca, supra.

Right Hip Disability

Here, the Veteran claims that his right disability is more severe than what is reflected by the previously assigned disability ratings.  The claims file shows that the Veteran assigned an initial 10 percent disability rating for his right hip disability by way of the October 2005 rating decision, effective from the date of service connection, February 28, 1995.  In the same rating decision, a 20 percent rating was assigned from October 20, 2003.  

The Veteran's right hip disability has been evaluated under Diagnostic Code 5252.  The normal range of motion for the hip is from 0 degrees extension to 125 degrees flexion and from 0 to 45 degrees abduction.  38 C.F.R. § 4.71a, Plate II.  The Board notes that disabilities of the hip and thigh are rated under Diagnostic Codes 5250 to 5255.  Diagnostic Code 5251 addresses limitation of extension of the thigh.  The maximum 10 percent rating is provided when extension is limited to 5 degrees.  Diagnostic Code 5252 addresses limitation of flexion of the thigh.  A 10 percent rating is assigned when flexion is limited to 45 degrees.  Flexion limited to 30 degrees warrants a 20 percent rating, while a 30 percent rating requires flexion limited to 20 degrees.  The maximum rating of 40 percent is reserved for when flexion is limited to 10 degrees.  Finally, Diagnostic Code 5253 addresses impairment of the thigh.  A 10 percent rating is awarded for each limitation of rotation of the thigh such that the individual cannot toe-out more than 15 degrees with the affected leg or for limitation of abduction of the thigh such that the individual cannot cross his legs.  Limitation of abduction such that motion is lost beyond 10 degrees results in assignment of the maximum 20 percent rating.

Other diagnostic codes addressing disabilities of the hip and thigh provide for ratings higher than the Veteran's current 10 and 20 percent ratings, and thus are potentially applicable in this case.  Diagnostic Code 5250 concerns ankylosis of the hip.  Favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction merits a 60 percent rating.  A 70 percent rating is awarded when there is intermediate ankylosis.  The maximum 90 percent rating requires unfavorable to extremely unfavorable ankylosis where the foot does not reach the ground and crutches are necessitated.  Diagnostic Code 5254 pertains to flail joint of the hip.  This condition receives an 80 percent rating.  Diagnostic Code 5255 concerns impairment of the femur.  Malunion of the femur with slight knee or hip disability receives a 10 percent rating.  A 20 percent rating is warranted for malunion of the femur with moderate knee or hip disability, while a 30 percent rating is warranted for malunion of the femur with marked knee or hip disability.  Fracture of the surgical neck of the femur, with false joint, or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and where weight bearing is preserved with an aid or brace merits a 60 percent evaluation.  The maximum 80 percent rating is reserved for fracture of the shaft or anatomical neck of the femur with nonunion and loose motion (spiral or oblique fracture).  38 C.F.R. § 4.71a.  

In February 1996, the Veteran underwent a VA orthopedic examination, at which time the Veteran reported having right hip pain.  The physical examination of the right hip revealed painful flexion, as well as abduction to 45 degrees.  The Veteran demonstrated internal rotation to 45 degrees and external rotation to 60 degrees, with pain at the extremes.  

The Veteran's VA treatment records document his right hip symptomatology.  
Treatment records dated in April 1996 show a diagnosis of DJD of the right hip.  On an April 1996 physical examination, right hip range of motion was reported to range from 0 to 110 degrees.  External rotation was to 30 degrees; internal rotation was to 10 degrees; and abduction was to 30 degrees.  The Veteran reported suffering a fall in December 2002, in which he landed on his right hip.  The associated physical examination revealed tenderness over the greater right trochanter, with normal range of motion.  A January 2003 radiology report shows the presence of spurring at the right hip joint, without any obvious acute fractures.  
In February 2003, the Veteran reported having right hip pain, along with the sensation that his right hip was about to pop the day prior.  

On October 20, 2003, the Veteran underwent an additional VA joints examination to assess his right hip disability.  He reported having right hip pain and flare ups with any type of strenuous activity.  He was noted to use crutches for the examination.  There were no episodes of dislocation of the right hip.  The physical examination revealed right hip flexion to 40 degrees, adduction to 5 degrees, abduction to 10 degrees, and extension to 0 degrees.  All of the movements were painful and the Veteran stopped the movements when pain began.  There was no fatigue weakness, or lack of endurance noted following repetitive testing.  The examination revealed objective evidence of painful motion, but no evidence of edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement.  There was no ankylosis of the right hip joint.  

During an August 2006 VA joints examination, the Veteran reported having soreness in his right hip, which constant aching.  He denied experiencing any locking or giving way of his right hip.  There were no reported flare ups, except with weight bearing.  He was noted to use crutches.  The Veteran denied any episodes of dislocation or subluxation.  His right hip was reported to have no effect on his occupation or daily activities, except as it contributed to his limited walking range.  On the physical examination, the right hip was normal to palpation.  The Veteran complained of pain without any movement.  His pain was noted to be primarily in the back rather than the hip.  The examiner was able to abduct the right hip to 45 degrees, without any serious problems; he was able to adduct the right hip to 25 degrees, again with the Veteran reporting pain, but without any serious problems.  The examiner was able to flex the thigh on to the torso to approximately 110 degrees, with pain reported more in the back than in the torso.  The Veteran could extend easily to 20 degrees with no significant problems; however, he reported stiffness and discomfort.  Internal and external rotation of the right hip was limited to 40 degrees, due to pain.  The diagnosis was right hip strain with residuals.  

Applying the pertinent legal criteria to the facts of this case, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for right hip disability from the effective date of service connection to October 19, 2003, and a disability rating in excess of 20 percent for the from October 20, 2003, to the present.  Given the foregoing evidence, the Board finds that a disability evaluation in excess of what is currently assigned is not warranted on the basis of limitation of motion.  Accordingly, the appeal must be denied.  

Initially, the Board notes that Diagnostic Code 5251 cannot serve as the foundation for a higher rating for either period on appeal because 10 percent is the maximum rating provided thereunder.  See 38 C.F.R. § 4.71a, Diagnostic Code 5251.

With respect to the initial disability rating assigned from February 28, 1995, to October 19, 2003, at no point during the period on appeal does the Veteran's right hip disability manifest flexion limited to 30 degrees or limitation of abduction such that motion is lost beyond 10 degrees, the criteria for evaluations of 20 percent under Diagnostic Codes 5252 and 5253 respectively.  The medical evidence for this time period shows that the he demonstrated at least 45 degrees of right hip flexion, with pain, and abduction to at least 30 degrees.  Therefore, the Veteran's right hip range of motion did not meet the criteria for a disability rating in excess of 10 percent for this time period.

The Board similarly finds that a disability rating in excess of 20 percent is not warranted for the right hip disability from October 20, 2003, to the present.  Here, the Board notes that Rating Schedule only allows for a maximum 20 percent disability rating under Diagnostic Code 5253 for a limitation of abduction.  Therefore, a disability rating higher than the 20 percent assigned for this time period is not for assignment under this diagnostic code.  Review of the medical evidence for this time period does not show that the next-higher 30 percent rating is warranted under Diagnostic Code 5252 based on a limitation of flexion, as the Veteran demonstrated at least 40 degrees of right hip flexion, with pain, during this time period.  The range-of-motion findings for this period on appeal does not show flexion limited to 20 degrees as required for a 30 percent disability rating under Diagnostic Code 5252.  Thus, a disability rating higher than 20 percent is not warranted for the right hip disability, as the Veteran's right hip range of motion does not meet the criteria for disability rating higher than what has already been assigned under Diagnostic Code 5252.  
  
The Board also finds that disability ratings higher than what has already been assigned are not warranted on the basis of DeLuca and associated statutes.  There has been no showing that the Veteran experienced greater limitation of motion in his right hip as a result of flare ups or functional loss due to weakness, excess fatigability, incoordination, or pain on use.  Objective evidence of pain was found upon repeated testing of the Veteran's right hip range of motion; however, effects of pain reasonably shown by the record to be due to the Veteran's right hip disability are contemplated in the current evaluations. Even taking into account the limitation of motion due to pain, his right hip disability is still does not warrant higher disability ratings under VA regulations.  38 C.F.R. §4.40, 4.45; DeLuca, supra.
  
Muscle Tear Disability

With respect to this claim, the Veteran was granted service connection for residuals of a tear of Muscle Group XIV on the right by way of an August 2003 Board decision.  Thereafter, the RO promulgated the Board's award of service connection by way of the October 2005 rating decision.  A noncompensable rating was assigned, effective November 14, 1995.  The Veteran disagrees with this assignment, as he claims that a compensable disability rating is warranted for his residual muscle tear disability.

As an initial matter, the schedular criteria for muscle injuries, as well as the provisions of 38 C.F.R. §§ 4.55, 4.56 that relate to evaluation of muscle injuries, were revised effective July 3, 1997, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 4.72.  See 62 Fed. Reg. 30, 237-240 (1997).  The Veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria, but only the former criteria are to be applied for the period prior to the effective date of the new criteria.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003).

In this case, the revised Rating Schedule provisions were not promulgated to substantively change the criteria, but rather "to update this portion of the rating schedule to ensure that it uses current medical terminology and unambiguous criteria."  62 Fed. Reg. at 30,235.  For instance, 38 C.F.R. § 4.72 was removed and the provisions contained in that regulation was incorporated into the provisions of 38 C.F.R. § 4.56 (2003).  Furthermore, 38 C.F.R. § 4.56(d) (2004) recodified the provisions of 38 C.F.R. § 4.56(a)-(d) (1996) without substantive change.  In addition, the Veteran's disability is currently evaluated under 38 C.F.R. § 4.73, Diagnostic Code 5314 .  A review of 38 C.F.R. § 4.73, Diagnostic Code 5314, as in effect prior to and after the July 1997 changes, reveals no changes in the evaluations provided for the classifications of disability from muscle injuries (slight, moderate, moderately severe, and severe).  In summary, neither version of the regulation is more favorable to the Veteran.  Kuzma, 341 F.3d 1327.

Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73 (2010).  For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions.  38 C.F.R. § 4.55(b).  The specific bodily functions of each group are listed at 38 C.F.R. § 4.73.

A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions.  38 C.F.R. § 4.55(a).

Guidance in rating muscle injuries is set out at 38 C.F.R. § 4.56, which discusses factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot wounds or other trauma.  Muscle group injuries or trauma are evaluated on the basis of the following factors:  the velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective clinical findings.  38 C.F.R. § 4.56.

The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe.  38 C.F.R. § 4.56(c), (d).  Under 38 C.F.R. § 4.56 (d):

A slight muscle disability is one where the injury was a simple wound of muscle without debridement or infection.  The service department record would show a superficial wound with brief treatment and return to duty.  There would be healing with good functional results.  There are no cardinal signs or symptoms of muscle disability as denied in 38 C.F.R. § 4.56(c).  Objectively, there would be a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus.  There would be no impairment of function, or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

A moderate muscle disability is one where the injury was either through and through, or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the effect of high velocity missile, residuals of debridement, or prolonged infection.  The service department record (or other evidence) would show inservice treatment for the wound.  There would be a consistent complaint of one or more of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objectively, the entrance (and if present, exit) scars would be small or linear, indicating short track of missile through muscle tissue.  Some loss of deep fascia or muscle substance, or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side would be present.  38 C.F.R. § 4.56(d)(2).

A moderately severe muscle disability is one where the injury was either through and through, or a deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring.  The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound.  There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), and, if present, an inability to keep up with work requirements.  Objectively, the entrance (and if present, exit) scars would indicate the track of missile through one or more muscle groups.  There would be indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side.  Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).

A severe muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring.  The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound.  There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.456(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements.  Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track.  Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area.  Muscles would swell or harden abnormally in contraction.  Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function.  If they happen to be present, the following would also be signs of severe muscle injury:  (A) X-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of missile.  (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle.  (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests.  (D) Visible or measurable atrophy.  (E) Adaptive contraction of an opposing group of muscles.  (F) Atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle.  (G) Induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

The Veteran's residual muscle tear disability has been rated under Diagnostic Code 5314, for injury to Muscle Group XIV.  See 38 C.F.R. § 4.73 (1996, 2010).  Under Diagnostic Code 5314, Muscle Group XIV is comprised of the anterior thigh group: (1) Sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris.  The muscle group performs the following functions (with muscles used in each movement): extension of knee (2, 3, 4, 5), simultaneous flexion of hip and flexion of knee (1); tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII (1) in postural support of body (6); acting with hamstrings in synchronizing hip and knee (1, 2).  Injuries to Muscle Group XIV is evaluated as follows: severe 40 percent, moderately severe 30 percent, moderate 10 percent, and slight 0 percent.  38 C.F.R. § 4.73, Diagnostic Code 5314.

By way of the August 2003 Board decision, the Veteran was granted service connection for a muscle injury to the right thigh caused by frequent falls related to his service-connected residuals of a gunshot wound to the left leg and foot disability.  

The Veteran's VA treatment records dated throughout the pendency of the appeal are generally negative for evidence relevant to rating the Veteran's right muscle tear disability under the diagnostic codes listed above.  

During a February 1996 VA orthopedics examination, the Veteran reported suffering a rupture of his right quadriceps muscles following a fall in April 1992.  He reported that surgical repair was not recommended at the time of his injury.  The physical examination revealed an obvious defect at the proximal right thigh in the distribution of the rectus femoris musculature secondary to the previous rupture.  The right thigh was nontender to palpation and was accentuated by quadriceps firing.  Strength in the quadriceps was reported as 5/5.    

The Veteran underwent a VA muscles examination in October 2003, at which time his muscle injury of the right thigh was characterized as stable.  There were no reports of muscle pain or tumors.  The physical examination revealed a vacant space in the midanterior right thigh that measured approximately 6 inches by 3 inches on the muscle group tear.  No scars were observed.  The examination was negative for evidence of adhesions, tendon damage, or bone, joint, or nerve damage.    

In August 2006, the Veteran underwent a second VA muscles examination, at which time the Veteran reported having aching and a defect in his right anterior thigh muscle.  He reported that his symptoms were constant; however, he denied any specific treatment for his disability.  He also reported experiencing an occasional throbbing in his leg; he noted no other problems with his disability.  Fatigue was noted as mainly a problem associated with the Veteran's serviced-connected left ankle.  No tumors were reported.  Objective testing revealed a normal-appearing right thigh.  The Veteran identified a space in the mid anterior thigh, directly in the front, measuring approximately 6 inches in length and 3 inches across.  The examiner noted that the Veteran had a similar defect, although somewhat narrower, on the left thigh in the same location.  The examination was negative for evidence of any adhesions, tendon damage, bone joint damage, or nerve damage.  The examiner determined that there was no significant decrease in the strength of the knee.  There was no evidence of muscle herniation.  The Veteran demonstrated full range of motion of the right knee, however, the examiner noted that the Veteran was having problems in this area following a total right knee replacement surgery.  Therefore, the Veteran was very restrictive in the amount of the range of motion he allowed the examiner to test.  There was no change in the examination with repetitive motion.

Having reviewed the foregoing, the Board finds that a compensable disability rating for the right muscle tear disability is not warranted.  Under the regulations in effect prior to June 3, 1997, and the current regulations, the Board finds that the Veteran's right muscle tear disability more closely approximates a "slight" muscle injury with "slight" functional impairment.  There is no objective evidence showing that the Veteran's injury is best characterized by debridement, painful residuals or significant impairment of function.  Both the February 1996 and October 2003 VA examination reports are negative for reports or objective evidence of pain or significant impairment due to the right muscle tear disability.  While the Veteran most recently reported during the August 2006 VA examination that he experienced constant aching of his right thigh, the clinical examination was negative for evidence of any adhesions, tendon damage, bone joint damage, or nerve damage, herniation, or any deficits in the strength of the Veteran's right knee.  The examiner determined that there was no significant decrease in the strength of the knee.  Indeed, the Veteran denied any specific treatment for his right muscle tear disability.  Given this, the preponderance of the evidence does not show that the Veteran's right muscle tear disability more closely approximates a "moderate" muscle injury with "moderate" functional impairment to warrant a compensable disability rating.

In reaching this determination, the Board has considered guidelines set forth in DeLuca.  The Veteran has not reported and the medical evidence does not show any right thigh fatiguability, weakness, loss of range of motion, or incoordination associated with the right muscle tear disability.  While the Veteran has reported experiencing pain in his right thigh, the objective evidence of record fails to associate any additional impairments due to pain that have not already been contemplated by the currently assigned noncompensable disability rating.  When the evidence is viewed in its entirety, the Board finds that the DeLuca criteria are not met with respect to the present claim.  

Low Back Disability

The claims file reflects that the Veteran filed his claim for an increased disability rating for his service-connected back disability in October 2003.  In an October 2003 statement, he reported his low back had gotten worse and more painful.  Thus, he has essentially claimed that his low back disability is more severe than the currently assigned 20 percent disability rating.  

The Veteran's low back disability has been assigned a 20 percent rating under Diagnostic Code 5237.  Diagnostic Code 5237 is used for the evaluation of lumbosacral strain.

The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine.  The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease.  Under this formula, a 20 percent evaluation is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion 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 is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine.

A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code.  Note (2) to the General Rating Formula explains 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.

Also applicable to the Veteran's claim is Diagnostic Code 5243, which provides that the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes (Diagnostic Code 5243) should be applied to evaluate a spinal disability if this would result in a higher disability rating.  The Formula for Rating Intervertebral Disc Syndrome provides for a 20 percent evaluation was assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A note following the Diagnostic Code defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1.  Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct.

Turning to the merits of the claim, the Veteran's VA treatment records document his reports of low back symptomatology.  An April 2003 VA treatment record includes his report of an exacerbation of his lumbar spine symptoms.  He reported having continued back pain in November 2005; the physical examination revealed tenderness on the lower thoracic lateral left side, not exacerbated with deep breathing.  There were no spasms.  The Veteran was diagnosed with DJD with  muscle strain.    

In December 2004, the Veteran underwent a VA spine examination.  He described having low back pain that radiated up his back, which was constant.  He reported having flare ups of his symptomatology every "81-0" days, which lasted one to two hours.  Associated symptoms were reported to include some numbness in his right leg.  The Veteran reported that he was unable to walk 50 feet and that he used crutches and a back brace.  He reported that his back made it difficult for him to dress and drive.  

On the clinical examination, there were no abnormalities of the spine visualized.  The Veteran demonstrated posture that remained in 45 degrees of flexion.  However, no fixed deformity was observed.  The Veteran demonstrated lumbar flexion to 60 degrees and he did not bend backwards beyond 45 degrees.  Right lateral flexion was to 25 degrees and left lateral flexion was to 20 degrees.  Bilateral rotation was to 35 degrees.  Pain was noted at the extreme ends of all of the reported movements.  Following repetitive use, forward flexion was to 60 degrees and extension backwards was not beyond 50 degrees of forward flexion.  There were no changes in the lateral flexion or rotation of the lumbar spine following repetitive use.  There was no objective evidence of painful motion, spasms, or weakness.  The examination revealed that the lumbar spine was tender to palpation.  There were no fixed deformities or abnormalities of the musculature of the back.  The Veteran was also noted to have tenderness in the dorsal spine.  He reported that his back pain radiated up to about the T1 level.  The associated neurological examination revealed normal sensory, motor, and reflex examinations in the lower extremities.  There was no evidence of intervertebral disc syndrome.  

The Veteran underwent a VA spine examination in August 2006, at which time he reported having constant back pain, with radiation down his right leg.  He also reported a history of some scoliosis of the thoracolumbar spine.  He reported having back problems with any kind of bending, stooping, lifting, twisting, walking, or standing.  He reported that he had a back brace, which he did not wear during the examination.  Flare ups were reported with any kind of ambulation or weight bearing.  However, the Veteran denied any incapacitating episodes with bed rest or hospitalization ordered by a physician.  He was noted to use crutches for all ambulation, which was mainly due to his left ankle; the Veteran also attributed his need to use crutches to his back and left knee problems.  In addition to the crutches, the Veteran was also noted to be in a wheelchair.  He reported that he retired in 1988, but that this was not due to a disability.  He stated that he was able to perform a few minor chores around the house that did not involve a lot of bending, stooping, or living.  The Veteran stated that he was able to perform his activities of daily living without any problems.  

The clinical examination revealed slight tenderness to palpation over the entire lumbar area and the sciatic notch area, bilaterally.  The Veteran was able to bend backward 20 degrees and laterally 20 degrees; although he complained of pain and stiffness during this portion of the examination, he was able to perform these ranges of motion seemingly without great difficulty.  He stopped at the end of 20 degrees of all three motions due to reports of stiffness.  The Veteran demonstrated forward flexion to 90 degrees, with pain reported while performing the motion.  However, he did not demonstrate any wincing or "carrying on" about it.  Bilateral rotation was to 35 degrees, with complaints of stiffness at 35 degrees.  No change in the examination was evidence with repetitive motion.  The motor and sensory examination of the lower extremities was essentially equal and symmetrical, bilaterally.  Testing of the right lower extremity was limited due to reported problems with the Veteran's recent right knee surgery.  The neurological examination was otherwise unremarkable.  The X-rays of the back revealed some thoracolumbar DJD.  

Based on the foregoing, the Board finds that the preponderance of the evidence does not show that a rating in excess of 20 percent is warranted for the low back disability.  In this instance, the medical evidence fails to show forward flexion of the thoracolumbar spine to 30 degrees or less or favorable anklyosis of the entire thoracolumbar spine.  The medical evidence of record shows that the Veteran has been able to perform at least 60 degrees of flexion, to include reports of pain.  Moreover, while the Veteran reported during the December 2004 VA examination that his lumbar range of motion was limited due to stiffness, there is no objective evidence of any loss of function on repetitive testing due to pain, fatigue, weakness, lack of endurance, or incoordination.  There was no ankylosis of the lumbar spine noted in the medical evidence.  During the most recent August 2006 VA examination, the Veteran denied having any incapacitating episodes involving his back or any difficulties with his activities of daily living.  These findings correspond to a disability evaluation no greater than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine.

The Board has also considered whether an increased evaluation is warranted based upon the granting of a separate neurologic disability related to the lumbar spine.  In this regard, the Veteran has not reported and the medical evidence does not indicate any bladder or bowel symptomatology, or erectile dysfunction associated with the low back disability.  With regards to his report of radiation of his low back pain to his right lower extremity, the Board notes that this issue is addressed in the Remand portion below and is being remanded for further development, along with the claim for right sided numbness affecting the upper extremity.  The medical evidence is negative for any additional reports of neurological symptoms associated with the low back disability.  The Board is not able to identify any further evidence of neurological symptomatology associated with the service-connected low back disability.  Therefore, a separate rating is not warranted for neurological impairment, as no such impairment is shown.

Left Elbow Disability

The Veteran claims that his left elbow disability, with DJD, warrants a compensable disability rating.  The claims file reflects that the Veteran's left elbow disability has been assigned a noncompensable rating from the effective date of service connection, August 28, 1957.  He applied for an increase rating for his disability in November 2005.  His left elbow disability was previously evaluated under Diagnostic Code 5206, which pertains to limitation of flexion of the forearm.  Currently, his disability is rated under Diagnostic Code 5024, for tenosynovitis, which in turn noted that it will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002.

Under Diagnostic Code 5003 for rating degenerative arthritis, arthritis of a major joint will be rated under the criteria for limitation of motion of the affected joint.  For the purpose of rating disabilities due to arthritis, the elbow is considered a major joint.  See 38 C.F.R. § 4.45.  Diagnostic Code 5003 provides a minimum 10 percent rating for degenerative arthritis of the joint, and then provides that higher disability ratings will be rated on the basis of limitation of motion under the appropriate range of motion diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  38 C.F.R. § 4.69.  As the evidence reflects that the Veteran is right-handed and his elbow disability is on the left side, he is entitled to ratings pertinent to the minor elbow/forearm.

The current General Rating Formula for the elbow and the forearm are as follows:

Diagnostic Code 5206, pertinent to limitation of forearm flexion, provides for a noncompensable evaluation where flexion is limited to 110 degrees; a 10 percent evaluation where flexion is limited to 100 degrees; and a 20 percent evaluation where flexion is limited to 90 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5206.

Diagnostic Code 5207, pertinent to limitation of elbow extension, provides for a 10 percent evaluation where extension is limited to 45 or 60 degrees; and a 20 percent evaluation where the extension is limited to 75 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5207.

Diagnostic Code 5208 provides for a 20 percent rating where flexion of the forearm is limited to 100 degrees and extension is limited to 45 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5208.

Diagnostic Code 5205 provides ratings for ankylosis of the elbow.

Diagnostic Code 5209 provides a 20 percent evaluation for impairment of the flail joint of the elbow where there is a joint fracture with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius.  Diagnostic Code 5210 provides for a 50 percent evaluation where there is nonunion of the radius and ulna, with flail false joint.  Diagnostic Codes 5211 and 5212 pertain to the impairment of the ulna and the radius, respectively.  Diagnostic Code 5213 addresses impairment of supination and pronation.  Such provides for a 10 percent evaluation where supination is limited to 30 degrees or less.  See 38 U.S.C.A. § 4.71a, Diagnostic Code 5213.

The normal range of elbow motion is 145 degrees of flexion and zero degrees of extension.  Normal forearm pronation is from zero to 80 degrees and normal forearm supination is from 0 to 85 degrees.  38 C.F.R. § 4.71, Plate I.

 The Veteran's VA medical records show limited treatment for the left elbow disability.  Treatment records dated in March 2002 show treatment for left elbow symptomatology.  A March 2002 X-ray report showed DJD of the left elbow.  However, his VA subsequent treatment records are negative for treatment of his left elbow disability during the period currently on appeal.

In August 2006, the Veteran underwent a VA joints examination to assess his left elbow disability.  The Veteran reported having constant left elbow pain, which was aggravated by weight bearing, usually when he was walking with his crutches and putting weight and stress on his elbow.  He reported no significant pain unless he put weight on the joint.  He denied any episodes of dislocation and there were no effects on his occupation, retirement, or daily activities.  The physical examination revealed that the left elbow was normal in appearance.  The Veteran reported having minimal tenderness over the entire elbow, including the antecubital fossa, the lateral epicondyle, and the olecranon areas.  There was no significant change with flexion and extension.  The Veteran's left elbow had full range of motion; he demonstrated flexion to 140 degrees and extension to zero degrees.  He complained of pain with really no problems.  The Veteran could pronate and supinate 90 degrees without any significant problems.  There was no change in the examination with repetitive motion.

In considering the evidence of record under the laws and regulations as outlined above, the Board finds that the Veteran is not entitled to a compensable evaluation for his service-connected left elbow disability based on a limitation of motion.  In this regard, the evidence of record does not show limitation of flexion of the forearm to 100 degrees; limitation of extension of the forearm to 45 degrees; and there was no impairment of the ulna, radius or supination and pronation, anklyosis, or any other elbow impairment.  The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's service-connected left elbow disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the currently assigned noncompensable percent rating, and no higher.  In this regard, the Veteran's flexion to 140 degrees and extension to 0 degrees, both with pain when applied to the relevant Diagnostic Codes, shows a noncompensable disability evaluation.  The Board does observe that in August 2006, the Veteran complained of constant left elbow pain that was aggravated by weight bearing. At that time, however, there was no objective evidence of functional impairment due to pain.  The Veteran's complaints of pain, when viewed in conjunction with the rest of the medical evidence, do not tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  The Board finds that any evidence of pain is contemplated by the assigned noncompensable rating.  Therefore, the Board finds that the preponderance of the evidence is against a compensable evaluation for the left elbow disorder.  Hart, supra.

While a compensable rating is not warranted for the left elbow disability based on a limitation of motion, the medical evidence does show that a 10 percent disability rating is warranted for arthritis under Diagnostic Code 5003.  In this regard, the March 2002 VA treatment record shows that a diagnosis of left elbow DJD was established by X-ray findings.  Subsequently, the August 2006 VA examination report reveals complaints of painful motion of the left elbow.  Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion.  See also generally Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Simply stated, the Veteran subjectively complained of painful motion as documented by the August 2006 VA examination report and these symptoms in conjunction with X-ray evidence of arthritis, provide the basis for the assignment of a 10 percent rating because, without consideration of it, the Veteran does not have compensable limitation of motion.

The Board has also considered whether a higher rating is warranted under other possibly applicable diagnostic codes; however, the medical evidence of record indicates the Veteran does not have (i) diagnosed ankylosis; (ii) forearm flexion limited to 100 degrees and extension limited to 45 degrees; (iii) an impairment of the flail elbow joint; (iv) nonunion of the radius and ulna with flail false joint; (v) malunion or nonunion of the ulna; (vi) malunion or nonunion of the radius; or, (vii) impaired forearm pronation and supination. As such, the rating criteria associated with these respective disorders are inapplicable.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5208, 5209, 5210, 5211, 5212 and 5213.

Additional Considerations

In reaching the above decisions with regards to the Veteran's claims for increased disability ratings for his service-connected depression, furunculosis, skin rash, right knee, left knee, right hip, muscle tear, low back, and left elbow disabilities, the Board has considered the Veteran's statements as to the nature and severity of the disabilities currently on appeal.  The Veteran is certainly competent to report that his current symptomatology and to report that his symptoms are worse.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals.  Massey v. Brown, 7 Vet. App. 204, 208 (1994).   Although the Veteran has claimed that a higher disability ratings are warranted for the claimed disabilities, due to such factors as pain, as described above, the disability ratings assigned and upheld herein take into account any functional limitation due to pain and any other reported symptomatology.  To the extent that the Veteran argues or suggests that the clinical data supports an increased evaluations in excess of what has been assigned or that the rating criteria should not be employed, he is not competent to make such an assertion.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration).

Additionally, the Board has considered whether any of the Veteran's claims warrant referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321.  In Thun v. Peake, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

As has been explained fully herein, the Board finds that the disability ratings that have been assigned for the Veteran's depression, furunculosis, skin rash, right knee, left knee, right hip, muscle tear, low back, and left elbow disabilities contemplate the level of impairment reported by the Veteran, and there is no aspect of the Veteran's disability that is not contemplated by the schedular criteria.   Indeed, for the ratings upheld and assigned herein, higher ratings are available for the claimed disabilities, but the Veteran's symptomatology with respect to these disorders simply did not meet the criteria for higher ratings for any of the time periods on appeal.  For these reasons, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

In deciding the Veteran's increased initial evaluation and increased rating claims, the Board has considered the determination in Fenderson v. West, 12 Vet. App. 119 (199), and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal periods.  The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disabilities in issue, such that increased evaluations are warranted.

In reaching these decisions, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for prostate cancer is denied.

Entitlement to an initial disability rating in excess of 30 percent for depression from  August 21, 2003, to December 18, 2005, and a disability rating in excess of 50 percent from December 19, 2005, to the present, is denied.

Entitlement to an initial disability of 30 percent for a skin rash disability from November 14, 1995, to October 19, 2003, is granted, subject to the laws and regulations governing monetary awards.

Entitlement to a disability rating in excess of 10 percent for a skin rash disability from October 20, 2003, to the present, is denied.

Entitlement to a compensable disability rating for furunculosis of the external auditory canals is denied.

Entitlement to an initial disability rating in excess of 10 percent for a right knee disability from August 21, 2003, to February 28, 2005, is denied.

Entitlement to an initial disability rating in excess of 10 percent for a left knee disability from November 14, 1995, to October 19, 2003, and 20 percent from October 20, 2003, to the present is denied.

Entitlement to an initial disability rating in excess of 10 percent for a right hip disability from February 28, 1995, to October 19, 2003, and 20 percent from October 20, 2003, to the present is denied.

Entitlement to an initial compensable rating for a muscle tear disability of the right knee, Muscle Group XIV is denied.

Entitlement to a disability rating in excess of 20 percent for a low back disability is denied.

Entitlement to a 10 percent disability rating for a left elbow disability is granted, subject to the laws and regulations governing monetary awards.

REMAND

Unfortunately, a remand is required with respect to the claims for service connection for right arm and right leg numbness and the claim for an earlier effective date for a TDIU.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  

Here, the Veteran has claimed that he suffers from numbness in his right arm and right leg, which he has attributed to his service-connected low back disability.  He has also attributed his right leg numbness to his service-connected right hip disability.  Having reviewed the medical evidence of record, the Board finds that additional development is needed with respect to the Veteran's claims.

The claims file reflects that the Veteran underwent a VA neurological disorders examination in December 2004.  He reported having recurrent orthopedic pain, to include back pain.  The physical examination revealed that the strength of the bilateral extremities was within normal limits.  Reflexes in the upper extremities were symmetric and traced figures and vibrations were normal in all four extremities.  No diagnosis was made relevant to any neurologic disorders of the right upper or lower extremities.  The examiner was asked to provide an opinion as to whether the Veteran's reported "pinched nerve" in his upper and lower back was related to his service-connected residuals of a gunshot wound to the left leg and foot disability.  The examiner responded that it was a difficult question to answer, however he opined that it was at least as likely as not.  

Subsequent VA treatment records document the Veteran's report of right arm and leg symptomatology.  An October 2009 VA treatment record includes the Veteran's report that he was falling more and that he was experiencing more numbness down his right arm and leg.  Following a physical examination, the Veteran was diagnosed with DJD with chronic pain.  There was no diagnosis or discussion relevant to his reported neurological symptomatology.

Currently, it is unclear from the medical evidence of record whether the Veteran has any neurologic disorders affecting the right upper and lower extremity that may be related to his service-connected disabilities.  While he has reported that he experienced neurological symptomatology affecting his right side, the medical evidence of record is negative for a definite neurologic diagnosis of the right upper and lower extremities.  Nevertheless, the Board notes that lay statements, such as the Veteran's reports of current neurologic disorders may be competent to support claims for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. 1153(a); 38 C.F.R. 3.159, 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Thus, the Veteran's statements regarding the presence of right arm and leg numbness must be given consideration in determining whether service connection is warranted for the claimed disorders.

The Board notes that under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is:  (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision.  See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  See also 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sep. 14, 2009) (stating that 38 U.S.C.A. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits).  Given the Veteran's competent lay statements regarding the onset and continuity of his right arm and leg symptomatology, the Board finds it necessary to provide the Veteran with an appropriate VA examination in an attempt to determine whether any neurologic disorders of the right upper and lower extremities are related to any service-connected disability, or are otherwise related to the Veteran's military service.  Therefore, a remand is needed for a VA examination and medical opinion.  See McLendon, 20 Vet. App. at 79.

With regards to the claim for an earlier effective date for the grant of TDIU benefits, the Board points out that, as any decision with respect to the claims for service connection for right arm and right leg numbness may possibly affect the Veteran's claim for earlier effective date for a TDIU.  As such, the Board finds that the claim for an earlier effective date for a TDIU is inextricably intertwined with the claims for service connection being remanded herein.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature.  Hence, a remand of this matters is warranted, as well.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

1.  The RO/AMC shall schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the claimed right upper extremity and right lower extremity numbness disorders.  The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner.  All indicated tests and studies should be performed and all findings reported in detail. The examiner is asked to identify any neurologic disorders of the right upper extremity and the right lower extremity found to be present.  With respect to any diagnoses made, the examiner shall offer an opinion as to the following:  

Whether it is at least as likely as not (a 50 percent likelihood or greater) that any diagnosed right upper extremity neurological disorder or right lower extremity neurological disorder is/are etiologically related to the Veteran's active duty service or a service-connected disability, to include the Veteran's service-connected low back and right hip disabilities.  

The rationale for all opinions expressed should be provided in a legible report.  It is requested that the examiner consider and reconcile any additional opinions of record or any contradictory evidence regarding the above.  If the examiner is unable to render an opinion with regards to any of the Veteran's claims without resort to mere speculation, it should be indicated and explained why an opinion cannot be reached.
 
2.  Upon completion of the above tasks and all necessary notice and assistance requirements, the RO shall readjudicate the Veteran's claims for service connection for right arm and right leg numbness and the claim for an earlier effective date for the grant of TDIU benefits.  If the benefits sought on appeal remain denied, provide the Veteran should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.  Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedures.  
  

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

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






______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs