Citation Nr: 1141058 Decision Date: 11/04/11 Archive Date: 11/21/11 DOCKET NO. 07-37 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disease, lumbar spine. 2. Entitlement to an initial disability rating in excess of 10 percent for irritable bowel syndrome. 3. Entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with anxiety. 4. Entitlement to an initial compensable disability rating for headaches. 5. Entitlement to an initial compensable disability rating for frontal sinusitis. 6. Entitlement to service connection for a left foot/flat foot disability. 7. Entitlement to service connection for a bladder disability, to include as secondary to service-connected disability. 8. Entitlement to service connection for a hiatal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from April 1996 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2006, April 2006, and October 2006 decisions rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to service connection for a left foot disability and for a bladder disability 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 Veteran has essentially full range of lumbar motion and mild degenerative changes. Even after considering reports of pain, he is not shown to have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. 2. Since the effective date for the grant of service connection, the Veteran's irritable bowel syndrome has been characterized by severe diarrhea and more or less constant abdominal distress. 3. Since the effective date for the grant of service connection, adjustment disorder with anxiety results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. During the entire rating period, the Veteran's tension headaches have not been manifested by characteristic prostrating attacks averaging one in two months over the last several months. 5. While the Veteran has occasional sinusitis, rhinitis, and daily nasal congestion, the disability is not shown to result in one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 6. A hiatal hernia disability was not present during active duty service and the current evidence is against a finding that current residuals of a hiatal hernia are related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. The criteria for an initial disability in excess of 10 percent for service-connected degenerative disease, lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5242 (2011). 2. The criteria for an initial 30 percent rating for irritable bowel syndrome are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 2011); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.114; Diagnostic Code 7319 (2011). 3. The criteria for an initial 30 percent rating for adjustment disorder with anxiety have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & 2011); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.130, Diagnostic Code 9410 (2011). 4. The criteria for an initial compensable disability rating for headaches, tension type, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Codes 8199-8100 (2011). 5. The criteria for an initial compensable disability rating for frontal sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6512 (2011). 6. The criteria for service connection for a hiatal hernia disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (the VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide and (3) that the claimant is expected to provide. The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C.A. § 5103(a). Prior to initial adjudication of the Veteran's claims, he was sent letters dated in September 2005 and June 2006 that satisfied the duty to notify provisions regarding service connection claims. As it pertains to the initial rating claims, where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes VA's duty to assist has been satisfied. Available service treatment records are in the file. Numerous VA outpatient treatment and Orlando Vet Center records are of record. In addition, the Veteran has submitted a private neuropsychiatric assessment. Moreover, the RO attempted to obtain any Social Security Administration (SSA) disability determination records. In September 2007, however, the RO was advised by SSA that he was not entitled to benefits and that there was no medical evidence on file. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The Veteran was provided VA examinations in October 2005, March 2006, and September 2006. Concerning these VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The reports of the examination reflect that the examiner reviewed the Veteran's past medical history. The examiners recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2011). II. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2 (2011). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). If there is a question as to which evaluation to apply to the Veteran's disability, the higher rating 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 (2011). 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 evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct 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. A. Lumbar Spine Disability The service-connected low back disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Disabilities of the spine, such as degenerative disease of the lumbar spine (Diagnostic Code 5242), for example, are to be rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, as it applies to the lumbar spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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 rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Under Diagnostic Code 5243, intervertebral disc syndrome is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes, whichever results in the higher rating. The formula for rating intervertebral disc syndrome based upon incapacitating episodes provides for a 10 percent evaluation was for assignment with incapacitating episodes having a total duration of at least one week, but less than two weeks during the past twelve months; 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. Here, the Veteran underwent an initial VA examination in October 2005. At such time, he described symptoms consisting of intermittent back pain. He denied any weakness, swelling, heat, redness, instability, or lack of endurance. In addition, he reported that the disability did not affect his activities of daily living and noted that he had not missed work due to the condition. A physical examination revealed flexion from 0 to 90 degrees with pain starting at 15 degrees. Extension was from 0 to 30 degrees, with pain at 30 degrees. Left and right lateral flexion and left and right rotation were all from 0 to 30 degrees with pain at 30 degrees. There was no evidence of any related neurologic disability. X-rays revealed mild degenerative changes. The examiner characterized the severity of the disability as "mild." These findings do not support the assignment of a disability rating in excess of 10 percent. They reveal a mild low back disability with essentially full range of motion. While there was objective evidence of pain on motion, pain did not result in functional loss equivalent with the criteria required for a 20 percent or higher evaluation. The Board has also considered whether a higher rating is warranted under the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes. Here, as noted, a 20 percent evaluation may be assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months. Here, the examiner did not specifically reference any incapacitating episodes. Moreover, the Veteran indicated that the condition did not result in lost time from work. As the evidence does not show incapacitating episodes of at least two weeks, a higher rating is not warranted under the formula for rating intervertebral disc syndrome. When rating under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes neurologic complications are separately evaluated. Here, however, there was no evidence of a related neurologic disability. Turning to the VA outpatient treatment records, a November 2006 MRI revealed mild degenerative disc changes at L5-S1, and mild bulging at L3-L4 and L4-L5. These MRI findings, however, do not reveal how the degenerative changes result in functional limitation. The remainder of the VA outpatient treatment records documents a diagnosis of degenerative disc disease of the lumbar spine. They do not reveal, however, evidence that the service-connected results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. Additionally, the VA outpatient treatment records do not document that the condition requires bed rest. As such, they do not support the claim for a higher evaluation. The Board has considered the Veteran's lay contentions and considered how the disability results in any functional loss. The Board is sympathetic to the Veteran's reports that the disability affects his quality of life. Nevertheless, even after considering the reports, the Board affords greater probative weight to the VA examiners who have medically determined that the disability is mild. Accordingly, even after consideration of the Veteran's lay contentions, the Board finds that at no point during the appeal does the disability approximate the criteria for a 20 percent or greater evaluation. For the reasons discussed above, the evidence does not more closely approximate the criteria for a higher rating, and the preponderance of the evidence is against the claim for a higher rating. Further, the rating criteria are adequate, and there are no distinct periods during the appeal period during which the disability would warrant a higher rating. The preponderance of the evidence is against the claim; therefore, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Irritable Bowel Syndrome The Veteran's service-connected irritable bowel syndrome is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. There is no Diagnostic Code "7399;" rather, it is used to identify digestive system disabilities that are not specifically listed in the rating schedule; these disabilities are then rated by analogy to similar listed disabilities. See 38 C.F.R. §§ 4.20, 4.27 (2011). Under Diagnostic Code 7319, pertaining to the evaluation of irritable colon syndrome (spastic colitis, mucous colitis, etc.) the criterion for a 10 percent rating is moderate irritable bowel syndrome with frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2011). A maximum 30 percent rating is awarded for severe bowel disturbance with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Id. Here, during VA examination in October 2005, the Veteran reported intermittent diarrhea two to three times a week and a 20 pound weight loss since 2004. The record reflects that the Veteran was seen for VA treatment in January 2006 with reports of diarrhea. In February 2006, he underwent a colonoscopy. The procedure revealed evidence of active colitis, celiac disease, and blastocystis hominis. A June 2006 treatment note indicates that the Veteran continued to have 3 loose stools daily, and that his condition had not changed despite treatment with mesalamine. An August 2006 treatment note records the Veteran's complaints of colitis and gas. When examined again by VA in September 2006, he described abdominal cramping that occurred intermittently throughout the day. He awoke twice at night with abdominal cramps and having to move his bowels. The examiner noted that the condition had significant effects on the Veteran's usual occupation. The examiner described the disability as "progressively worse." Finally, during a November 2007 VA examination in conjunction with a claim seeking service connection for clostridium difficile A and/or B, the Veteran reported persistent diarrhea occurring 1 to 4 times a day. He also reported a history of bloating, flatulence, and alternating diarrhea and constipation. Upon consideration of this and other pertinent evidence of record, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran's irritable bowel syndrome has manifested with severe diarrhea and more or less constant abdominal distress since his discharge from service. Therefore, the Board concludes that an initial 30 percent rating is warranted for the entire period under consideration. Given that the Board has assigned the maximum schedular rating for the Veteran's condition since the effective date of service connection, staged ratings pursuant to Fenderson are not warranted. C. Adjustment Disorder with Anxiety In August 2005, the Veteran claimed entitlement to service connection for anxiety and stress resulting in sleeplessness. He attributed the condition to his active military service in Iraq. A VA psychiatric examination in October 2005 revealed that the Veteran had some but not all of the symptoms necessary for a diagnosis of PTSD based on his military service. He had an adjustment disorder with anxiety and significant nightmares. He did not have, however, hyperarousal or hypervigilence. The examiner stated that he did not appear to have any occupational or social impairment. Based in part upon these findings, in the January 2006 decision, the RO granted entitlement to service connection for adjustment disorder with anxiety. An initial 10 percent evaluation was assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9410. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows: Under Diagnostic Code 9410, a 10 percent evaluation is warranted when the veteran exhibits occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; when symptoms are controlled by continuous medication. Under such Diagnostic Code, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130. A 50 percent rating is assigned when there is occupational and social impairment 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. Id. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. Finally, a 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly 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 and place; memory loss for names of close relatives, own occupation or name. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging between 51 to 60 reflect more 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 peers or co-workers). Scores ranging from 41 to 50 reflect 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). The Board has reviewed the October 2005 VA examination results in which the examiner characterized the anxiety disorder as mild. The Board has also reviewed the pertinent lay and medical evidence submitted prior to and since the October 2005 VA examination. The VA outpatient treatment records show treatment for PTSD. They note that the Veteran has symptoms of anxiety and an adjustment disorder. They also note that he was irritable and had continuing nightmares. When evaluating the Veteran's disability, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a non-service connected condition, 38 C.F.R. § 3.102 (2011) [which requires that reasonable doubt be resolved in the Veteran's favor] dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). In Mittleider, the veteran had been diagnosed with PTSD and various personality disorders and there was no medical evidence in the record separating the effects of the service-connected disability from the nonservice-connected disorders. Id. at 182. The Board finds this case nearly indistinguishable from Mittleider in that there is medical evidence of record that the Veteran's psychiatric manifestations and symptoms clearly overlap with PTSD are inextricably intertwined with one another and they cannot be separated out from each other. Having found such, the VA outpatient treatment records do reveal that the Veteran's psychiatric symptomatology results in occupational and social impairment with occasional decrease in work efficiency. For instance, a September 2005 record noted that the Veteran was moody and anxious. A March 2006 treatment noted treatment with Paxil and indicated a GAF score of 59. Records dated in August 2006 note that the Veteran experienced significant anxiety while driving. He also had continuing nightmares and difficulty sleeping. A December 2006 note indicated that Prozac had helped with anxiety but he still had problems with sleep. An August 2007 record noted a GAF score of 60. Finally, an October 2007 neuropsychiatric examination revealed that the Veteran also demonstrated problems with attention, memory, and general thinking efficiency as a result of his PTSD. The Board finds that these records present a more consistent picture of the Veteran's disability then the picture presented when examined by VA in October 2005. They demonstrate that the Veteran is generally functioning pretty well but has moderate symptoms that cause some difficulty in occupational and social functioning. Given such, and after affording the Veteran the benefit of the doubt, the Board finds that the criteria for an initial 30 percent rating are met. While the Board finds that a 30 percent rating is warranted, the criteria for a 50 percent or higher rating are not approximated. For instance, the Veteran is not shown to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or difficulty in establishing and maintaining effective work and social relationships. Significantly, the evidence does not show that the service-connected disability results in occupational and social impairment with reduced reliability and productivity. D. Headaches The Veteran's service-connected tension headache disability is rated as noncompensably disabling (0 percent) pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. It is rated by analogy to a migraine headache disability. While the Veteran does have "migraine" headaches, the Board believes this is the most appropriate code to evaluate the condition. In order to qualify for a 10 percent rating under Diagnostic Code 8100, there must be characteristic prostrating attacks averaging one in two months over the last several months. Here, on VA examination in October 2005, the Veteran described headaches in the temporal area that there pressure like and caused irritation. He stated that he had headaches three times a week, and with medication, they would last for approximately one hour. The examiner noted no functional impairment from the condition and diagnosed tension headaches. There was no indication of any characteristic prostrating attacks. This is highly probative evidence against a compensable rating for headaches. As the examiner's findings do not place the Veteran's headaches within the rating schedule's requirements for a compensable rating, this is also highly probative evidence against the claim. The remainder of the VA outpatient treatment records does not show treatment for a headache disorder. They do show that the Veteran receives acetaminophen, 325 mg, but the records do not state if the medicine is prescribed for headache pain or for another disability. Even assuming the medicine is used to treat headache pain, and even after reviewing the lay statements of record, the record is devoid of evidence that the headaches condition results in characteristic prostrating attacks averaging one in two months. Thus, while the Board does not doubt that the Veteran has a headache disorder; it is not shown to result in symptomatology more nearly approximating the criteria for a compensable rating under Diagnostic Code 8100. In view of the foregoing, the Board finds that the preponderance of the evidence is against an initial compensable rating for the Veteran's tension headaches for the entire initial rating period. As the preponderance of the evidence is against the claim for a higher rating for this period, the benefit of the doubt doctrine is not applicable to this aspect of the appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). E. Frontal Sinusitis The Veteran contends that a compensable rating for sinusitis is warranted because he has congestion each morning and has to take continual medication for treatment. The Veteran's service-connected frontal sinusitis is rated as noncompensably disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6512. The Schedule applies a General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides a noncompensable (0 percent) rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula for Sinusitis provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. Here, on VA examination in October 2005, the Veteran reported a history of sinus problems since 2004, which consisted of congestion of the nose, dry cough, and upper respiratory infections. At present, he took Benadryl twice a week for symptoms. His symptoms involved pressure in the sinuses, associated runny nose, and watery eyes. Benadryl gave him good response with no side effects. There were reports of headaches; however, the examiner did not attribute them to the sinus condition. He had never been incapacitated due to sinus problems. A physical examination revealed swollen turbinates on the right and left sides. There was no tenderness to palpation of the maxillary sinuses. Sinus x-rays revealed an opacity in the right frontal sinus that could represent regional sinusitis. The VA outpatient treatment records contain scattered references to either sinusitis or allergic rhinitis. They document treatment with flunisolide nasal spray. Upon review of this and other relevant evidence of record, the Board finds that the criteria for an initial 10 percent rating have not been met. While the evidence shows that the Veteran has allergies, sinusitis and/or rhinitis, it is not shown to result in any incapacitating episodes. Rather, the Veteran specifically denied any incapacitating episodes during VA examination. Moreover, while the Veteran is treated with nasal spray, the evidence does not show prolonged antibiotic treatment for the service-connected disability. Finally, the VA outpatient treatment records do not document three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Board does not doubt the Veteran's contention that he has daily morning congestion; however, he does not contend, nor does the evidence otherwise show that the condition is of the severity necessary for the assignment of a 10 percent rating under Diagnostic Code 6512. In this respect, it is important to note that the Veteran's headaches have not been associated with the sinus condition; rather, the headaches have been diagnosed as tension headaches. Moreover, the examiner did not find objective evidence of painful sinuses. Accordingly, the weight of the evidence is against the assignment of a compensable rating for service-connected frontal sinusitis and the claim must be denied. F. Extra-Schedular Consideration Finally, the rating schedule represent as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted above, the Veteran's low back, psychiatric, headache, gastrointestinal, and sinus disabilities are contemplated by the pertinent rating criteria. The rating criteria reasonably describe the disabilities. In addition, it is not shown that that the disabilities cause marked interference with employment, nor are the disabilities shown to result in hospitalizations. Hence, referral for consideration of extraschedular ratings is, therefore, not warranted. III. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Here, in a June 2006 statement, the Veteran reports that he suffered from a hiatal hernia "throughout active duty to present." The Board has reviewed the pertinent evidence of record, but finds that the preponderance of the evidence is against the claim. First, despite the Veteran's contentions to the contrary, the service treatment records do not reveal evidence of a hiatal hernia during service. The Board notes, in this respect, that a hiatal hernia is not a disability capable of being diagnosed based solely on lay testimony. It typically requires a medical professional to diagnose the condition. Accordingly, the Board affords the Veteran's lay testimony little probative weight. Moreover, the post-service records do not show continuity of symptomatology since service. Rather, VA physical examinations conducted in August 2005 and February 2006 both found no evidence of a current hernia. While a small hiatal hernia was discovered in May 2006, other than the Veteran's unsubstantiated contentions, there is no indication that such is related to the Veteran's active military service. Accordingly, as the weight of the evidence is against the claim, the claim must be denied. ORDER An initial disability in excess of 10 percent for service-connected degenerative disease, lumbar spine, is denied. An initial 30 percent rating for irritable bowel syndrome is granted, subject to the law and regulations governing the payment of monetary benefits. An initial 30 percent rating for adjustment disorder with anxiety is granted, subject to the law and regulations governing the payment of monetary benefits. An initial compensable disability rating for headaches, tension type, is denied. An initial compensable disability rating for frontal sinusitis is denied. Entitlement to service connection for a hiatal hernia disability is denied. REMAND The Board finds that additional development is required for the claim for service connection for a left foot disorder and for a bladder disability. First, as to the left foot disorder, the Veteran contends that his combat training and service duties aggravated a preexisting flat foot condition. He reports that he suffers from pain on the underside of his feet and has been issued shoe inserts from VA. Here, the record reflects that when the Veteran was examined at enlistment in March 1996, the examiner reported that he had mild, asymptomatic pes planus (flat feet). The service records document that in June 2001, he was seen with complaints of blisters on both feet for 24 hours following a road march. The blisters were cleaned and the Veteran was directed to avoid running or marching for one week. On his service separation examination, he denied any past or current foot problems, and examination of the feet was normal. In May 2005, the Veteran filed his initial claims seeking service connection for various disabilities. No mention was made of any left foot condition. In February 2006, however, the Veteran claimed that he was treated for left ankle and foot pain during service. He described a cracking sound in his ankle and reported that he wore VA-issued orthotics. The Veteran underwent a VA examination in March 2006. The physical examination findings appear to indicate that the Veteran has a current left foot condition; however, the report is not clear. For instance, the report describes flare-ups of foot joint disease that occur weekly or more often. The report documents a history of tenderness, stiffness, fatigability, and lack of endurance. The physical examination revealed painful motion and tenderness at the left lateral tarsal/metatarsal joint. There was no evidence of pes planus. An x-ray revealed a partially fused sesamoid bond at the medial navicular and mild degenerative changes. The examiner rendered an opinion linking degenerative joint disease of the left lateral talus to the Veteran's active military service. Indeed, service connection was granted for such disability as a result of the examination. What is unclear, however, is whether the physical examination findings revealed a disability other than a left talus disability and, if so, whether such are related to the Veteran's active military service. Accordingly, further examination is required. As to the bladder disability, the Veteran asserts that he had urinary frequency throughout service. His service treatment records include notations in May, July, and August 2002 wherein the Veteran reported trouble with his bladder in which he had to void every 15 minutes. No diagnosis was rendered. He underwent a VA urologic surgery consultation in February 2006 again reporting issues with urinary frequency and nocturia. Following a physical examination, the impression was colitis, celiac disease, and blastocystis hominis. The examiner did not explain how these diagnoses related to the urinary symptoms or offer an opinion as to the etiology of a bladder disability. In addition, an October 2006 VA urology clinic note indicates that the Veteran's bladder symptoms may be due to his back problems. Thus, there is evidence of possible secondary service connection. See 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.) Given the evidence of in-service findings of a bladder condition, current bladder symptoms treatment, and evidence of a possible relationship to service-connected disability, the Board finds that this matter should be remanded to afford the Veteran a VA genitourinary examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination for the purposes of obtaining evidence as to the nature, severity and etiology of any current left foot disability. The claims folder must be provided to the examiner in conjunction with the examination and the examiner must note that the complete claims folder has been reviewed. The examiner should perform any diagnostic tests deemed necessary. The examiner should elicit from the Veteran a complete history of his complaints of a left foot disability, including any medical treatment, and note that, in addition to the medical evidence, the Veteran's lay history has been considered. The examiner is advised that service connection is currently in effect for degenerative joint disease, left lateral talus. Thus, following a physical examination, the examiner must render an opinion as to whether the Veteran has a separate and distinct left foot disability. As to any left foot disability diagnosed, the examiner shall render an opinion as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder was incurred in, as a result of, or aggravated by, active duty service. Any and all opinions must be accompanied by a complete rationale. The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner is unable to provide the requested opinion, it should be so stated, along with a complete rationale for why he or she is unable to provide such an opinion. 2. Schedule the Veteran for a VA genitourinary examination for the purposes of obtaining evidence as to the nature, severity and etiology of any current bladder disability. The claims folder must be provided to the examiner in conjunction with the examination and the examiner must note that the complete claims folder has been reviewed. The examiner should perform any diagnostic tests deemed necessary. The examiner should elicit from the Veteran a complete history of his complaints of a bladder disability, including any medical treatment, and note that, in addition to the medical evidence, the Veteran's lay history has been considered. The examiner is directed to review the October 2006 VA urology clinic follow up note which indicates a possible relationship between a current bladder disability and a back condition. The examiner is advised that the Veteran is service-connected for degenerative disease of the lumbar spine. As to any bladder disability diagnosed, the examiner shall render an opinion as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder was incurred in or as a result of, active duty service. In addition, the examiner shall render an opinion as to whether any current bladder is either caused by or aggravated by the service-connected degenerative disease of the lumbar spine. Any and all opinions must be accompanied by a complete rationale. The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner is unable to provide the requested opinion, it should be so stated, along with a complete rationale for why he or she is unable to provide such an opinion. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. If any benefit sought on appeal is not granted, the Veteran should be provided with a Supplemental Statement of the Case ("SSOC") and afforded the opportunity to respond thereto. The matters should then be returned to the Board, if in order, for further appellate process. 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. 2010). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs