Citation Nr: 1200284	
Decision Date: 01/05/12    Archive Date: 01/13/12

DOCKET NO.  07-03 313	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for a right shoulder disability, to include as secondary to the service-connected degenerative disc disease of the cervical spine.

2. Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected degenerative disc disease of the cervical spine.

3. Entitlement to service connection for dermatitis.

4. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected degenerative disc disease and disc protrusion, lumbar spine. 

5. Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder and posttraumatic stress disorder (PTSD).

6. Entitlement to service connection for a right wrist condition.

7. Entitlement to service connection for achalasia, to include as secondary to the service-connected degenerative disc disease of the cervical spine.

8. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the cervical spine. 

9. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease and disc protrusion, lumbar spine.

10. Entitlement to an initial rating in excess of 20 percent for temporomandibular joint dysfunction (TMJ).

11. Entitlement to an initial compensable rating for sinusitis.

12. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Casula, Counsel



INTRODUCTION

The Veteran had active service from October 1981 through September 2004, which included service in the Gulf War Theater of Operations from January 1991 to March 1991.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for degenerative disc disease of the cervical spine; for degenerative disc disease and disc protrusion of the lumbar spine; for sinusitis, status post septoplasty, antrostomy, ethmoidectomy, sinusotomy; and for temporomandibular joint dysfunction; and assigned initial 0 percent (non-compensable) ratings for the four disabilities, with all effective from October 1, 2004.  Further, the September 2004 rating decision denied service connection for a right shoulder strain; left shoulder strain; contact dermatitis; erectile dysfunction; adjustment disorder with anxious and depressed mood; right wrist condition; and achalasia.  

In October 2004, the Veteran advised that he had moved to Maryland.  Thereafter, the Baltimore, Maryland RO assumed jurisdiction of this matter.  By August 2005 rating decision, the Baltimore RO, in pertinent part, granted an initial 20 percent disability rating for degenerative disc disease of the cervical spine, effective from October 1, 2004; and an initial 10 percent rating for degenerative disc disease and disc protrusion, lumbar spine, also effective from October 1, 2004.  By November 2005 rating decision, the RO granted an initial 10 percent rating for temporomandibular joint dysfunction (TMJ), effective from October 1, 2004.  The Veteran has continued his appeals for initial higher ratings for the service-connected degenerative disc disease of the cervical spine; degenerative disc disease and disc protrusion, lumbar spine; and TMJ. 

The record reflects that although the Veteran filed a claim for service connection for adjustment disorder with anxious and depressed mood, he has been treated for a variously diagnosed disorder, to include MDD (major depressive disorder), recurrent, severe, with psychotic features; depression; mood disorder; generalized anxiety disorder; dysthymic disorder; and depression NOS with psychosis.  In addition, at the April 2011 hearing, the Veteran raised a claim for service connection for PTSD, which has yet to be adjudicated by the RO.  In light of the Clemons case, the Board also finds that the claims for service connection for adjustment disorder with anxious and depressed mood and for PTSD, should be considered as set forth above.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Although there has not been a rating decision adjudicating the claim for service connection for PTSD, the Board notes that pursuant to Clemons, the claim for service connection for an acquired psychiatric disorder and the claim for service connection for PTSD should be considered as one issue.  Id.  In Clemons, the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders.  Though a veteran may only seek service connection for PTSD, the claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed."  Id.  Essentially, the Court found that a veteran does not file a claim to receive benefits only for an acquired psychiatric disorder, such as PTSD, but in fact makes a general claim for whatever mental condition may be afflicting the veteran.  Thus, the rationale behind the Clemons decision is instructive and applicable here, and the issue on appeal is as stated on the first page, encompassing all psychiatric disorders.

By April 2009 rating decision, the RO denied entitlement to a TDIU rating.  In a statement submitted in June 2009, the Veteran expressed his disagreement with the denial of a TDIU rating.  As a statement of the case (SOC) has yet to be issued on that issue, the claim for a TDIU rating must be remanded to the RO via the Appeals Management Center (AMC) so that an SOC may be issued.  Manlincon v. West, 12 Vet. App. 238 (1999).

In June 2009, the Veteran also advised that he had lived in Illinois since November 2008.  Thereafter, the Chicago, Illinois RO assumed jurisdiction of this matter.  

In April 2011, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge.  

The issues of entitlement to service connection for a right shoulder disability, a left shoulder disability, dermatitis, erectile dysfunction, an acquired psychiatric disability, to include adjustment disorder and PTSD; and achalasia; the claim for a rating in excess of 20 percent for the service-connected degenerative disc disease of the cervical spine; and the claim of entitlement to a TDIU rating, are all 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 preponderance of the competent evidence of record is against a finding that the Veteran has a right wrist condition related to his active service.

2. Resolving reasonable doubt regarding the degree of disability in favor of the Veteran, the competent and probative medical evidence of record demonstrates that the orthopedic manifestations of the Veteran's service-connected degenerative disc disease and disc protrusion, lumbar spine has been manifested by complaints of chronic pain, limitation of range of motion, and a finding of flexion limited to 30 degrees; there have been no allegations or findings of lumbar ankylosis. 

3. Resolving any doubt in the Veteran's favor, his service-connected lumbar disability has resulted in neurological symptoms in the right lower extremity.

4. The Veteran's service-connected TMJ dysfunction has resulted in pain, popping, clicking, inter-incisal range of motion no less than 30 mm, and occasional episodes of his jaw locking up, which he is able to reduce on his own. 

5. The Veteran's sinusitis is manifested by at least three non-incapacitating episodes per year.



CONCLUSIONS OF LAW

1. A right wrist condition was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011).

2. Giving the benefit of the doubt to the Veteran, the criteria for a 40 percent rating for degenerative disc disease and disc protrusion, lumbar spine have been met.  38 U.S.C.A. § 38  U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 , 4.2, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2011).

3. Affording the Veteran the benefit of the doubt, the criteria for a separate 10 percent evaluation for right lower extremity neurological manifestations have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159 , 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2011).

4. The criteria are not met for an initial rating higher than 20 percent for the Veteran's TMJ dysfunction.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.150, Diagnostic Code 9905 (2011). 

5.  The criteria are met for a compensable, 10 percent, rating for the Veteran's sinusitis.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Code 6510 (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008).  This notice must be provided prior to an initial decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a service connection claim:  (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm.  Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007).  However, the U.S. Supreme Court (Sup. Ct.) has reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2).  The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

In a claim for increase, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.   Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2004 and May 2008 that fully addressed the notice elements in this matter.  Since the appellate issue in this respect (entitlement to assignment of an initial compensable rating) is a downstream issue from that of service connection (for which the 2004 VCAA letter was duly sent), another VCAA notice is not required.  VAOPGCPREC 8-2003.  This appeal is from the initial rating assigned with the grant of service connection.  The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006).  The Veteran is exercising his right to appeal the rating assigned.  In addition, a November 2006 statement of the case (SOC) properly provided him notice of the criteria for rating lumbar disabilities, including what the evidence showed, and why the current rating was assigned.  The Veteran has had ample opportunity to respond and supplement the record, and, in addition, provided testimony in this matter in 2011.  He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008).  The Board also notes that in the 2008 VCAA letter, the Veteran was advised of how disability ratings and effective dates are assigned.  See Dingess v. Nicholson, supra.  He has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case.  See Sanders v. Nicholson, supra.  Thus, the Board concludes that all required notice has been given to the Veteran.

The Board notes that the Veteran was not scheduled for a VA examination to determine whether he has a right wrist condition that may be related to service.  Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service.  The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service.  

With regard to the claim for service connection for a right wrist disability, there is no competent medical evidence of a current disability.  And, although the Veteran has contended that his right wrist condition had an onset in service, his lay statements alone are not competent evidence to support a finding on a medical question (such as diagnosis or etiology) requiring special experience or special knowledge.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims.  The RO has obtained all identified and available service and post-service treatment records for the Veteran.  As noted above, a VA examination was not scheduled for the claim for service connection for a right wrist condition.  VA examinations were, however, conducted in 2005 and 2008 to assess the severity of the Veteran's service-connected lumbar spine disability, service-connected TMJ, and service-connected sinusitis.  The Board finds that these two VA examinations are adequate, and include review of the claims folder, a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record.  See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007).  It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.

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

II. Service Connection for a Right Wrist Condition

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007). 

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation and etiology.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay statements 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); Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

The Veteran essentially contends that he has a right wrist condition related to service.  The Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder.  Brammer v. Derwinski, supra.  In this case, however, the record does not show he has a diagnosis of a right wrist disability, and on the VA examination in 2005, the Veteran specifically denied having any pain or limitation in the right wrist, and denied having any right wrist condition.  While the Veteran testified he had right wrist symptoms - there has been no diagnosis of any right wrist disability.  In addition, the Board notes that VA is not generally authorized to grant service connection for symptoms alone, such as pain, without an identified basis for the symptoms.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).

Full consideration has been given to the Veteran's own assertions that he has a right wrist condition related to service, which he claims was caused by his duties in service as a bomb loader.  As noted above, lay statements 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, susceptible of lay observation.  See Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra.  If the Veteran, for instance, injured his wrist in service, and had complaints and symptoms thereafter, he would certainly be competent to report the circumstances of a wrist injury as well as his symptoms thereafter.  However, as a layperson, the Veteran, simply does not have the competency to render a medical opinion on diagnosis or etiology of a condition.  See Espiritu, 2 Vet. App. at 494.  Moreover, the Board does not find that a chronic wrist disability, as contrasted with pain or other symptoms, is subject to lay diagnosis.  The Board finds no basis for concluding that a lay person would be capable of discerning what disorder his pain or other symptoms represented, in the absence of specialized training, which the Veteran in this case has not established. 

The Board also recognizes the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, where the overall evidence of record fails to support a diagnosis of the claimed disability at any time during the pendency of the claim, that holding is inapplicable.

Based upon the foregoing and the lack of competent medical evidence of a right wrist disability, the Board concludes that the Veteran is not entitled to service connection for this disorder.  As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a right wrist condition must be denied.  38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

III. Higher Initial Ratings

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1, Part 4. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3. 

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). 

1. Initial Rating in Excess of 20 Percent for
Degenerative Disc Disease and Disc Protrusion, Lumbar Spine

The Veteran contends that he should be entitled to a higher initial rating for his service-connected lumbar spine disability. 

Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

In general, when an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505   (2007).

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45.  Also, VA General Counsel held in VAOPGCPREC 9-98 after reiterating its holding in VAOPGCPREC 23-97 that pain as a factor must be considered in the evaluation of a joint disability with arthritis and that the provisions of 38 C.F.R. § 4.59 are for consideration.

The Veteran's service-connected lumbar spine disability is rated under the provisions of Diagnostic Code (DC) 5242 (degenerative arthritis of the spine).  38 C.F.R. § 4.71a, DC 5242, see also 38 C.F.R. § 4.71a, DC 5003 (2011).  Also, pertinent to the Veteran's claim is Diagnostic Code 5243 (intervertebral disc syndrome), which permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined.  38 C.F.R. § 4.71a , DC 5243.

Under the General Rating Formula for Diseases and Injuries of the Spine, 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 will be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating will be assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine.  The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined motion for the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula, Note (1).  The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  Note (2). 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A rating of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months.  Finally, a rating of 60 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a.

On VA examination in July 2005, the Veteran reported that pain medication such as Tylenol with codeine provided mild to moderate relief, and that activities that aggravated the low back condition included prolonged standing or prolonged sitting.  He avoided prolonged walking, running, and heavy lifting due to back pain.  His occupation was cardiac catheterization laboratory technician, and reported having to stand for the greater part of his job and that this caused increased pain and stiffness in the low back.  There was no history of flare-ups in the past year which required bed and incapacitation by a physician.  Range of motion testing showed that forward flexion of the lumbar spine was to 90 degrees, extension was to 20 degrees, and left and right lateral flexion and rotation were all to 30 degrees.  The examiner noted that there was no evidence that repetitive motion of the lumbar spine further increased pain or caused further limitations in range of motion.  

On VA examination in June 2008, the Veteran reported low back pain radiating to the right leg.  He had no bowel, bladder, or constitutional symptoms.  On examination, he was able to walk on his heels and toes, and examination of the lumbosacral spine revealed no tenderness.  Forward flexion was to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and rotation to 35 degrees on the right and 25 on the left.  There was no pain on range of motion, no loss of motion on repeated maneuvers, and motor power was 5/5 with no reflex motor deficit present.  Sitting in a supine position, straight leg raising was negative.  The diagnoses included chronic lumbar strain and degenerative disc disease of the lumbar spine.  It was noted that the Veteran had limitation in prolonged standing, walking, bending, stooping, and lifting weight due to discomfort in the lower back and also from turning his head due to chronic neck pain.  The examiner also noted there was no evidence of additional limitation either due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare up.  

VA treatment records show that the Veteran has received ongoing treatment related to his complaints of low back pain.  In February 2009, he underwent a neurology consultation in which it was noted that the Veteran had a 20 year history of low back pain with recent worsening,  He reported he retired four years prior and was on Social Security disability.  He described his back pain as aching, localized in the low back, and sometimes radiating down to both feet with shooting pain.  He underwent range of motion testing of the lumbar spine, which showed limited range of lumbar motion to 30 degrees on forward flexion, 20 degrees on backward extension, and 10 to 20 degrees of lateral flexion.  In July 2009, it was noted that the Veteran did not perform any lumbar ranges of motion because of apprehension.  In November 2009, he was seen in the emergency room for severe low back pain, and was told it was a flare-up of sciatica.  He rated his pain as an 8 or 9, and required assistance getting out of bed and out of a chair during flare-ups.  

After reviewing the record and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the criteria for a 40 percent rating for the service-connected degenerative disc disease and disc protrusion of the lumbar spine have been approximated.  38 C.F.R. § 4.7.  In that regard, the Board notes that in February 2009, the Veteran's forward flexion of the lumbar spine was limited to 30 degrees, and thereafter he continued to experience lumbar pain and symptoms.  The Board acknowledges that the range of motion findings for the Veteran's thoracolumbar spine have varied during the appeal period, and that on VA examination in 2008, the flexion findings did not meet the criteria for a 40 percent rating under Diagnostic Code 5242.  However, considering the finding in February 2009 of lumbar flexion limited to 30 degrees, and functional limitations due to pain, and giving the Veteran the benefit of the doubt, it is the Board's judgment that the competent medical evidence supports the assignment of a 40 percent rating.  See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, supra. 

In order to achieve an even higher rating, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months.  However, the competent evidence here fails to show either ankylosis of the thoracolumbar spine, or such incapacitating episodes with physician prescribed bed rest, or such episodes lasting for at least 6 weeks. Thus, a rating in excess of 40 percent is not warranted at any point during the appeal period.  Fenderson, supra. 

The Board has also considered a separate rating for the Veteran's neurological manifestations resulting from his service-connected lumbar disability.  While service connection and a separate rating have been granted for radiculopathy of the left lower extremity associated with degenerative disc disease and disc protrusion, lumbar spine, there has been no similar finding regarding the Veteran's right lower extremity.  The record reflects that the Veteran has had ongoing complaints of pain radiating into the right lower extremity, as well as a finding of sciatica.  Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve.  Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating.  While review of the record details the Veteran's ongoing complaints of radiating pain, these records also show that sensation was intact, strength was normal, and reflexes were intact.  Thus, giving the Veteran the benefit of any doubt, the Board finds that the overall disability picture presented by the evidence indicates mild incomplete paralysis in the right lower extremity under the criteria found in Diagnostic Code 8520.  The record reflects that the Veteran has consistently reported that his radicular symptoms affect his right and left lower extremities.  The Board finds that the Veteran's subjective complaints regarding his right lower extremity recorded during the pendency of this appeal are essentially consistent with the objective evidence.  Therefore, the Board finds that a separate 10 percent rating is warranted for the right, and a higher 20 percent rating is not warranted under Diagnostic Code 8520 as his radicular symptoms do not result in "moderate" incomplete paralysis.  38 C.F.R. § 4.6.  Such disability is simply not objectively shown by the record.

In conclusion, the evidence of record supports the assignment of a 40 percent rating for the orthopedic manifestations of Veteran's service-connected lumbar spine disability.  In addition, the Board also concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports the grant of a separate 10 percent rating, but no higher, for the neurologic manifestations of the Veteran's service-connected lumbar disability affecting his right lower extremity.  The Board notes that in reaching this conclusion the benefit-of-the-doubt doctrine has been applied.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


2. Initial Rating in Excess of 20 Percent for TMJ dysfunction

The Veteran contends he should be entitled to a higher rating for his service-connected TMJ.  

By September 2004 rating decision, the Veteran's TMJ dysfunction was rated as 20 percent disabling, under the criteria of 38 C.F.R. § 4.150, Diagnostic Code 9905. 

Diagnostic Code 9905 provides for a 20 percent disability rating for inter-incisal range of 21 to 30 mm.  A rating of 30 percent is assigned with inter-incisal range of 11 to 20 mm.  A rating of 40 percent is assigned with inter-incisal range of 0 to 10 mm.  Id.  A note to Diagnostic Code 9905 states ranges for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion.  38 C.F.R. § 4.150.

On VA examination in July 2005, the Veteran reported that in 1983 his jaw was locked and he had to go to the emergency room, where a reduction of dislocation of TMJ was performed.  He claimed that since that time, he had a few times more where he had to go to the emergency room for a reduction, but that when it started happening more, he was shown how to reduce by himself.  He reported that since 1985, his jaw gets dislocated off and on, approximately a couple of times a month, but he did not have to go to the emergency room or a doctor for treatment.  His symptoms included on and off subluxation, pain in the jaw area, and pain when eating large or hard food.  He claimed he had to be careful and eat in small bites.  It was noted that he did not have any disfigurement, but there was some interference with mastication, but no interference with speech.  He had a slight popping sound or subluxation of both TMJs on opening and closing his mouth.  There was a slight malocclusion noted.  The diagnoses included TMJ syndrome and recurrent TMJ dislocation.

On VA examination in June 2008, the Veteran reported that he basically used only analgesics for his TMJ.  He reported that since service, he got intermittent lockjaw, but had learned how to manipulate this and put it back in the socket, and had not seen any doctor or been to the emergency room for lockjaw.  He complained of pain with chewing and clicking sounds in the jaw.  Physical examination showed no pain or tenderness in either TMJ, but there was audible clicking in both TMJs.  He was able to open his mouth to at least 30 mm interincisor distance without any trouble.  He could open a little more, but then would have clicking or subluxation.  His teeth showed no significant malocclusion and his intraoral examination was normal.  His lateral movements were 2 to 3 mm.  The diagnosis was TMJ, treated symptomatically.

At the Travel Board hearing in April 2011, the Veteran testified that he had problems with chewing, opening, and locking in the open position.  He claimed that he had been to the emergency room in the past if his jaw locks in the open position, but he had been shown how to put it back in place and so he did it himself now.  He testified that he modified the way he ate, by cutting up his food, so that his jaw doesn't lock open.  He indicated that if his jaw locked open, after he put it down it would hurt for a couple of days and have both sides popping and clicking.  He reported having pain, and claimed that x-rays showed a severe case of TMJ, but no arthritis.  He also testified that there was essentially no change to his TMJ since 2008, because he was cutting up his food and trying not to open his mouth so much.  He indicated that if he was not careful, his jaw could lock up a couple times a week.  

The Veteran has undergone two VA examinations to determine the severity of his service-connected TMJ syndrome.  The 2008 VA examiners measured inter-incisal movement at 30 mm.  As none of the medical findings of record show limitation of 
inter-incisal range of motion to 20 millimeters or less, an initial rating higher than 20 percent is not warranted on the basis of limitation of motion alone.

The evaluation of a service-connected disability involving a joint rated based on limitation of motion requires additional consideration of whether there is functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of the joint under  38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Indeed, the Veteran's TMJ syndrome is essentially a musculoskeletal disability of a joint (the jaw).  It is well-documented that he has reported having pain in his jaws, which he says began after his wisdom teeth were extracted in service, and he has some episodes of locking.  Importantly, however, although the VA examiners did observe popping and clicking of the right and left mandible on motion, there was no indication this contributed to any additional limitation of inter-incisal motion.  Overall, however, the objective clinical evidence is negative for additional functional loss due to weakness, fatigue or incoordination, or lack of endurance.  Thus, there is no basis on which to assign a higher level of disability compensation based on 38 C.F.R. §§ 4.40 and 4.45.  Simply put, the record does not show that the functional loss due to his TMJ syndrome impairs him to such a degree that he has the equivalent of the criteria for a higher 30 or 40 percent rating. 

The Board acknowledges that the Veteran reports some degree of functional impairment and pain associated with his TMJ dysfunction.  The Veteran's own report of symptomatology is credible.  However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation.  The Board recognizes that a lay person is competent to describe what comes to him through the senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  In this regard, the Veteran can assert that the symptoms associated with his TMJ dysfunction are worse.  However, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  While the Veteran asserts that his service-connected TMJ dysfunction is more severely disabling, the Board observes that the findings on VA examination do not demonstrate symptomatology that more nearly approximates the criteria for a higher rating.  38 C.F.R. § 4.7.  The Board concludes that the observations of a skilled professional describing the motion of the jaw as well as other symptomatology as described above are more probative than the lay evidence and in fact, are generally consistent with the Veteran's report of symptoms.  To the extent that the Veteran reports greater impairment than that shown on examination, the Board finds that the observations of the skilled professional are more probative in this matter.

Moreover, since the TMJ syndrome has never been more than 20-percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating either.  Fenderson, supra.  As the preponderance of the evidence is against the claim, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

3. Initial Compensable Rating for Sinusitis

The Veteran contends that his service-connected sinusitis warrants the assignment of a compensable rating.

By September 2004 rating decision, the RO granted service connection for sinusitis, status post septoplasty, antrostomy, ethmoidectomy, sinusotomy, and assigned a 0 percent (non-compensable) rating.

On VA examination in July 2005, the Veteran reported that his sinus symptoms started in the early 1980s, was treated with Afrin by a doctor, but for the next 15 years he did not go to a doctor.  He claimed that in 1998 his problem was bad and he had the same nasal congestion, drainage, and headaches from service.  He went to an ENT specialist who did a CAT scan and diagnosed chronic ethmoid and maxillary sinusitis with probable nasal polposis.  He underwent three subsequent sinus surgeries, and in 2001, his deviated septum was corrected.  He treated currently with Zyrtec, Flonase, and nasal saline drops.  His symptoms included mainly nasal thick mucoid drainage.  It was noted that for at least a year, he had had no sinus infections and had not been on antibiotics.  The sinus were nontender, drainage was clear, and there was evidence of some recurrence of polyps, but no purulent discharge or crusting.  

In May 2007, the Veteran underwent an ENT consultation, which provided an impression of allergic rhino-sinusitis S/P multiple surgeries.  In July 2007, he was seen for follow-up for his chronic sinusitis with three prior sinus surgeries.  Prior blood testing suggested he had many allergies, and a recent trial of Augmentin for three weeks had only transient effects on his nasal secretions.  The impression was chronic allergic sinusitis.  In December 2007, he complained of chronic sinusitis  In January 2008, the Veteran reported having chronic sinusitis and complained of headaches and that it hurt across the bridge of his nose.  Antibiotics were prescribed.  In February 2008, ENT examination was normal and showed no evidence of sinusitis.  

On VA examination in July 2008, the Veteran reported his sinus problems started in 1985, and that he had congestion with thick mucoid discharge, headaches, and pain.  He claimed he went to the doctor, and was told it was a sinus infection and given an antibiotic.  He reported that at least four or five times he needed antibiotics, and that some of the times he did not receive antibiotics.  He claimed his last sinus infection was in February 2008.  It was noted that in 2007, the Veteran was diagnosed as allergic rhinosinusitis and had a CAT scan which showed bilateral osteotomies and some chronic sinus infection.  Examination of the nose showed that his septum was midline, with adequate nasal airway, and normal size turbinate  His drainage was somewhat mucoid, but no evidence of acute infection.  The diagnoses included chronic recurrent sinusitis, status post multiple surgeries, and allergic rhinitis.  

VA treatment records further show that in August 2009, the Veteran reported he had a sinus infection that week - with a temperature of 100.5, green sputum from a productive cough, sore throat, sinuses drainage, and headache.  In April 2010, the Veteran complained of frequent nasal congestion with post-nasal drip of thick green mucous.  He reported occasional sinus tenderness.  The assessment included recurrent sinusitis, and Augmentin was prescribed for 10 days, along with ocean nasal spray.  

In April 2011, the Veteran testified that he always had a sinus infection - whether it was spring or summer - and that it may get worse when he has a cold.  At the hearing the Veteran and his representative claimed that his service-connected sinusitis was rated under the diagnostic code for rhinitis, which assessed the percentage of nasal obstruction, but requested that this disability be rated based on the disease process.  He testified he had sinus infections three to five times a year, and had to take a course of antibiotics with each infection.  

Pansinusitis, ethmoid sinusitis, frontal sinusitis, maxillary sinusitis, and sphenoid sinusitis are rated under the General Rating Formula for Sinusitis.  38 C.F.R. § 4.97, Diagnostic Codes 6510-6514.  Under the General Rating Formula for Sinusitis, a noncompensable evaluation is warranted for sinusitis that is detected by x-ray only.  38 C.F.R. § 4.97, Diagnostic Code 6510.  A 10 percent evaluation is warranted 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.  Id.  A 30 percent disability rating is warranted when there are 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.  Id.  The note to that provision defines an "incapacitating episode" of sinusitis as one that requires bed rest and treatment by physician.  Id. 

A review of the evidence of record shows that the Veteran's sinusitis is manifested by approximately three non-incapacitating episodes per year.  While there is medical evidence of record of sinusitis dated during the six years after the Veteran's separation from military service, many treatment records show that the Veteran had chronic sinus complaints and was treated with antibiotics.  These records confirm the presence of active symptomatology after the Veteran's separation from military service, but the medical evidence does not show that the Veteran has ever been prescribed bed rest for his sinusitis.  As he is not a physician, the Veteran is not competent to make a determination that his sinusitis episodes require bed rest and four to six weeks of antibiotic treatment.  Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  Accordingly, the Veteran cannot be considered to have experienced incapacitating episodes of sinusitis for VA purposes, regardless of his own characterizations of the incapacitating effects of his sinusitis.  However, the Veteran is competent to report the frequency with which he experiences headaches, pain, and purulent discharge or crusting.  Barr v. Nicholson, 21 Vet. App. 303, 307   (2007).  In this regard, the Veteran has stated that he normally experiences approximately three to five episodes of sinusitis per year, all of which require antibiotics, and produce similar symptoms.  While there is insufficient medical evidence of record to corroborate such a frequency of symptomatology, the medical evidence does show that the Veteran has received periodic treatment for complaints of sinusitis, and that he has been doing so in the form of antibiotics and saline irrigation.  Accordingly, the lack of clinical documentation of the Veteran's sinusitis episodes is not inconsistent with his claims regarding his symptomatology.  As there is no evidence which contradicts the Veteran's reports regarding the frequency of his sinusitis symptomatology, the Board finds the Veteran's lay statements to be credible.  Thus, an initial 10 percent rating is warranted for the service-connected sinusitis.  A rating in excess of 10 percent is, however, not warranted, as there is no evidence of record that the Veteran has ever experienced more than six non-incapacitating episodes of sinusitis in a single year.  

In view of the foregoing, the Board concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports the grant of a 10 percent rating for the service-connected sinusitis, but no higher, for the entire appeal period.  

4. Extraschedular Consideration

The Board finds that the Veteran's service-connected lumbar disability, TMJ dysfunction, and sinusitis do not warrant referrals for extra-schedular consideration.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. 

Here, as explained above, the rating criteria for the Veteran's service-connected lumbar disability, TMJ, and sinusitis, reasonably describe his disability levels and symptomatology, and provide for a greater evaluation for more severe symptoms.  For these reasons, the disability pictures due to the Veteran's service-connected lumbar spine disability, TMJ, and sinusitis are adequately contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, also deemed adequate.  Therefore, referral for the assignment of an extraschedular disability rating is not warranted in this matter.


ORDER

Service connection for a right wrist condition is denied.

A 40 percent rating for degenerative disc disease and disc protrusion, lumbar spine is granted, subject to the laws and regulations governing the payment of monetary benefits. 

A separate 10 percent rating for right lower extremity neurological manifestations, of the service-connected degenerative disc disease and disc protrusion, lumbar spine, is granted, subject to the laws and regulations governing the payment of monetary benefits. 

An initial rating in excess of 20 percent for TMJ dysfunction is denied.

An initial 10 percent rating is granted for sinusitis, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

Service Connection for a Right and/or Left Shoulder Disability

The Veteran contends he has current right and left shoulder disabilities due to his service-connected cervical spine disability.  He also, alternatively, claims that his shoulder disabilities are related to the duties he had to do in service, which included bomb loading and patient lifting.  He claims he was treated for his right and left shoulder symptoms in service.  

STRs include a record, which appears to be dated in January 1991, showing that the Veteran complained of let shoulder pain and the assessment was mild left trapezius strain.  In June 1998, he complained of left shoulder pain for three days, claiming that the pain was worse at the end of the day and at night.  The left shoulder examination was found to be consistent with a rotator cuff impingement syndrome.  In January 2000, he complained of right arm pain, and specified the pain was in his right shoulder, neck, and back.  In May 2002, he complained of pain in the upper right arm and shoulder for two weeks.  He reported that the shoulder pain occurred after he went fishing.  The assessment was right trapezius strain.  In August 2000, he complained of left shoulder pain for three weeks, he could not specify any exacerbators, and the impression was left scapular muscular pain.  In June 2001, he complained of a pulled muscle in the left shoulder.  In February 2004, he complained of low back and left shoulder pain; reported he had the symptoms for two years; and the impressions included left upper extremity radiculopathy. 

On VA examination in July 2005, the Veteran reported he did not have any right or left shoulder condition, but he experienced pain throughout the left shoulder girdle and attributed this to his cervical spine condition.  He reported having full active range of motion in the right shoulder with no complaint of pain in the right arm.

Post-service VA treatment records show ongoing complaints of shoulder pain.  The claims for service connection for right and left shoulder conditions were initially denied by the RO because there was no competent medical evidence of current right or left shoulder disabilities, and, indeed, in July 2005, the Veteran indicated himself he had no right or left shoulder condition, but attributed his left shoulder pain to his cervical spine condition.  

A review of the post-service records, however, show that the Veteran underwent x-rays and an MRI of the left and right shoulders, respectively, which must be further addressed.  The x-ray report, dated in June 2007, showed that the four views of the left shoulder were normal with the exception of "minimal degenerative change at the a.c. joint" and the conclusion was "negative".  The MRI report of the right shoulder, dated in May 2007, showed that the muscles and tendons were normal in signal and morphology, and the superior labrum demonstrated an abnormal signal which was likely degenerative in nature.  Subsequent VA treatment records, however, show that later in June 2007 the Veteran was seen for a provisional diagnosis of superior glenoid labrum lesion and the May 2007 MRI report was referenced, but with respect to the left shoulder, rather than the right.  It is unclear from these conflicting records, therefore, whether the Veteran may have some sort of disability in the right and/or left shoulder.  Additionally, as service connection and a separate rating have been granted for radiculopathy of the left upper extremity, as associated with the service-connected cervical spine disability, it is unclear whether he may have right shoulder and/or arm symptoms that may likewise be attributed to the service-connected cervical disability.  In this regard, the Board notes that at the hearing in April 2011, the Veteran reported he had shooting pain, weakness, and tingling from his neck to his right arm.  

As noted above, the Veteran contends that he has right and left conditions related to his service-connected cervical disability, as well as to the repetitive motions he did in service as a bomb loader.  The Veteran is competent to make such assertions (based on his observations); however, he is not competent to assess whether his current shoulder symptoms are related to military service or any event therein.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  As the Veteran was seen for complaints regarding his shoulders in service, and has reported having shoulder pain since service, and the post-service medical evidence suggests there may be some pathology in one or both of his shoulders, a VA examination should be provided.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4)(i).  In McLendon v. Nicholson, supra, the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold.  See also Locklear v. Nicholson, 20 Vet. App. 410 (2006).  As such, a VA examination should be scheduled to determine whether the Veteran has a current right and/or left shoulder disability that might be related to active service or to the service-connected cervical disability.

Service Connection for Dermatitis

The Veteran has essentially testified that he has a current skin disability that is due to various causes in service, to include the different climates he was in, his exposure to hazardous materials when he was loading bombs, and exposure to chemicals when cleaning and working on an airplane.

STRs show that in March 1983, the Veteran was treated for a rash on the arm.  In June 1984, he was seen for a rash on his hands and had been possibly exposed to poison ivy, and the impression was contact dermatitis.  In January 1986, he was seen for a rash on his calves and feet, and the assessment was contact dermatitis versus cholinergic urticaria.  In May 1986, he complained of a poison ivy rash on his hands and lower extremities for three days, and the assessment was contact dermatitis.  In June 1986 he was seen for multiple papules on his legs, and the assessment was chigger bites.  Creams were prescribed, and two days later the bites were resolving.  In August 1989, he complained of an itchy rash on his legs for days, and the assessment was probable contact dermatitis.  In June 1994, he was treated for possible contact dermatitis of the hands, buttocks and inner thighs.  He denied contact with weeds or allergens, and reported he was a hospital employee and washed his hands frequently.  The assessment was possible dyshidrotic eczema, and medication creams were prescribed.  In November 1994, he complained of a rash under both arms, which the examiner found to be suggestive of contact dermatitis.  

STRs further show that in October 1996, the Veteran complained of skin tags in the armpits and wanted them removed.  The assessment included fibroepithelial polyps versus pedunculated nevi and atypical nevus, rule out melanoma.  In August 1997, he was seen for follow up for AKS (actinic keratoses) and xerosis, and the assessment also included tinea pedis/planus.  In December 2000, he complained of an itchy rash on the right forearm and a right groin rash.  A skin biopsy was performed, and the final diagnosis was dermatofibroma.  The examiner noted that the lesion was thought to be an over-vigorous healing response to some forgotten past minor trauma or insect bite.  In October 2002, he reported that a six day history of a pruritic rash of the legs had spread to his arms, and the assessment was contact dermatitis versus other nonspecific dermatitis.  

On VA examination in July 2005, the Veteran reported that in 1999 or 2000 he started noticing itching, flaking, and dry skin of both forearms and elbow areas, which a doctor told him was dermatitis and required moisturizers, but no medication.  He reported that the moisturizer took care of it, and his hands had no signs or symptoms.  The diagnosis was dermatitis, treated with moisturizer and, at present, no evidence of dermatitis.

On a VA examination in May 2008, the Veteran reported having dry skin for several years, for which he used over-the-counter lotions as needed.  The examiner opined, based on evaluation, that the Veteran appeared to have xerosis which was generalized dry skin, and which was a constant intermittent condition.  The diagnosis was xerosis (dry skin), which was generalized involving 30 to 40 % of his body surface, without any findings of any dermatological or systemic conditions.  The examiner noted the condition was well treated with over-the-counter creams, and there was no report of any pruritis or infection as a result of these lesions.  

As noted above, the Veteran contends that he has a skin condition that had an onset in service.  The Veteran is competent to make such assertions (based on his observations); however, he is not competent to assess whether his current symptoms are related to military service or any event therein.  Barr v. Nicholson, supra.  The resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence.  See Espiritu v. Derwinski, supra.  

As the Veteran was seen for complaints of skin rashes on several occasions in service, and has indicated that his current skin condition had its onset in service and has continued to the present day, and both in service and post-service he has been diagnosed with having dermatitis and xerosis, VA is obliged to provide an examination.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, supra.  Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4)(i).  In McLendon v. Nicholson, supra, the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold.  See also Locklear v. Nicholson, supra.  As such, a VA examination should be scheduled to determine whether the Veteran has a current skin disability that was incurred in, or is otherwise related to, his active service. 

Service Connection for Erectile Dysfunction

STRs showed that in April 2002, the Veteran reported that for less than a year he had decreased quality of erections, and thought this was possibly due to his medications.  The assessment was erectile dysfunction, and a trial of Viagra was prescribed.  In February 2004, he was seen for early onset erectile dysfunction, unknown etiology.  He was to continue taking Viagra, and a formal urology referral was to be considered if not already completed.  

On a VA examination in June 2005, it was noted that in the last two years since the Veteran was on blood pressure medication, he had problems with erectile dysfunction.  On a VA examination in July 2005, the Veteran reported having erectile dysfunction for seven to eight years.  The diagnoses included erectile dysfunction, on Viagra, with side effects of headaches and color perception disturbance.

Post-service VA treatment records showed that the Veteran continued to have erectile dysfunction and impotence.  In February 2009, it was noted that he had impotence of organic origin.  

The Veteran contends that his erectile dysfunction had an onset in service.  The Board notes that the Veteran is competent to make such assertions (based on his observations); however, he is not competent to assess whether his current symptoms are related to military service or any event therein.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, supra.  The requirement that the evidence "indicates" that the Veteran's disability "may" be associated with his service-is a low threshold.  Id.  Because the Veteran was treated for erectile dysfunction in service, as well as the Veteran's lay statements and VA treatment records, a VA examination is in order to address whether the Veteran's erectile dysfunction may be related to service.  See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, supra.

Service Connection for Acquired Psychiatric Disability

The Veteran has essentially contended that he has a psychiatric disorder due to his physical disabilities, and that his psychiatric disorder had an onset in service.  He has alternatively contended that he has PTSD due to his service in the Persian Gulf Theater in Saudi Arabia, as a bomb loader, and his unit, 37th Provisional Bomb Wing, was subjected to an assassin's attack, where one of his friends sustained a bullet to the back.  

STRs show that in May 1986, the Veteran was treated for insomnia and anxiety.  In September 1998, the results of his Beck Depression Inventory were not indicative of depression.  In May 2001, he underwent counseling for a partner relationship problem and also anger management treatment.  In June 2001, the assessment included partner relationship problem and rule out personality disorder with depressive traits.  In August 2001, it was noted that he was a no show for depression management.  In November 2001, counseling was terminated for the Veteran's partner relational problems.  In January 2002, he apparently completed a health enrollment assessment review questionnaire, which indicated the presence of anxiety.  In July 2003, he was seen for an initial evaluation, on an emergency basis, and the diagnoses included parent-child relational problem and rule out adjustment disorder with anxious and depressed mood.  In August 2003, it was noted that the Veteran was started on Lexapro a month prior because he was irritable, depressed, and anxious, and all of those symptoms had improved, including his sleep.  The assessment was adjustment disorder with anxious and depressed mood, and he was to continue the Lexapro.  In September 2003, the diagnosis was adjustment disorder with anxious and depressed mood, and the dosage of Lexapro was increased.  In February 2004, his anxiety was noted to be well controlled.

The Veteran's DD Form 214 shows that his military occupational specialty for 12 years in service was as an aircraft armament system craftsman.

On a VA mental disorders examination in June 2005, the examiner noted that there was no mental psychopathology detectable, but that the Veteran had been diagnosed with adjustment disorder in service in 2003, in service.  There was no Axis 1 diagnosis provided, and the examiner opined that after reviewing the claims folder, the electronic medical records, and the medical literature, that the Veteran's allegations of anxiety and depression linked to service could not be established.  The examiner noted that the Veteran had experienced anger in the course of his professional duties, as well as significant marital discord, but found that there was no psychopathology that could be linked to service.  The examiner opined that, at most, the Veteran manifested adjustment and marital problems in addition to anger management difficulties, but that linkage to service was not found.

VA treatment records show that from 2007 through 2010, the Veteran has been treated for a variously diagnosed disorder, to include MDD, recurrent, severe, with psychotic features; depression; mood disorder; depressive disorder; and dysthymic disorder; and depression NOS with psychosis versus pain disorder with psychological factors and general medical condition.  In February 2009 he underwent a PTSD screening test which was positive.  

The Board notes that the RO has yet to consider the Veteran's claim for service connection for PTSD.  In addition, the Veteran has not received proper VCAA notice pertinent to the PTSD portion of his service connection claim for an acquired psychiatric disorder, and also notes that establishing service connection for PTSD entails specific elements, in addition to those pertinent to ordinary service connection claims.  Finally, the Veteran's claim for service connection for PTSD must be considered under the new § 3.304(f)(3), which significantly relaxes the evidentiary burden for establishing occurrence of an in-service stressor.  This regulatory revision has eliminated the requirement that the claimed in-service stressor be corroborated by credible supporting evidence, if the claimed stressor is related to the Veteran's "fear of hostile military or terrorist activity" and is consistent with the "places, types, and circumstances of the Veteran's service."  

With regard to the claim for an acquired psychiatric disorder, other than PTSD, the Board notes that the Veteran received treatment in service and has been treated post-service for a variously diagnosed psychiatric disorder.  Thus, under the circumstances presented in this case, the Board finds that a VA examination and opinion is required and the VA examiner should be asked to address whether any mental health diagnoses other than PTSD are related to the Veteran's military service..  See Charles v. Principi, 16 Vet. App. 370 (2002); see also McLendon v. Nicholson, supra; 38 C.F.R. §3.159(c)(4).  And, as indicated above, the Veteran has been diagnosed with MDD, mood disorder, and depression, thus, on remand, this claim must be considered pursuant to the Clemons precedent.  

Service Connection for Achalasia

The Veteran contends that his achalasia had an onset in service, and has alternatively contended that his achalasia is related to his service-connected cervical disability.

STRs show that the Veteran was treated for achalasia in service.  In November 1996, he had an abnormal upper gastrointestinal (UGI) series, and, thereafter, the assessment was achalasia.  In December 1996, he underwent "Botox" injections for treatment of achalasia.  In August 2000, the Veteran reported he had developed dysphagia for solids, and returned for a therapeutic EGD with Botox injection.  The impression was achalasia, status post Botox injection.  In August 2004, he was noted to have a history of achalasia and was referred for a recurrence of dysphagia for solids and high volume liquids.  He underwent an EGD with Botox injection, and the impression was achalasia, status post botulinum toxin injection.  

On the VA general medical examination in June 2005, the Veteran reported that he underwent esophageal dilatation at least once every two years.  The diagnoses included gastroesophageal reflux disease and esophageal stricture, requiring esophageal dilatation every two years.  

Post-service, VA treatment records showed that in March 2008 the Veteran underwent an esophagogastroduodenoscopy (EGD) with Botox injection, for achalasia (failure of the esophageal muscle ring to relax completely).  

Because the Veteran was treated for achalasia in service and post-service, the Board concludes that a VA examination is in order to address whether the Veteran has achalasia that may be related to service.  See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, supra.  The Board acknowledges that the existence of a current disability is the cornerstone of a claim for VA disability compensation.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  However, the Board also recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

Initial Rating in Excess of 20 Percent 
for Degenerative Disc Disease of the Cervical Spine

The Veteran contends he should be entitled to a rating in excess of 20 percent for his service-connected degenerative disc disease of the cervical spine.  

VA treatment records suggest that the Veteran has experienced ongoing cervical pain and limitation of motion.  On the VA examination in June 2008, the Veteran reported neck discomfort, especially with turning from side to side, with radiation to both upper extremities.  Range of motion testing showed that his forward flexion and extension were to 35 degrees, right and left rotation were to 60 degrees, and side-bending was to 10 degrees on the right and left.  There was no pain in range of motion and no loss of motion on repeated maneuvers.  The diagnoses included chronic cervical strain and degeneration of the cervical spine radiculopathy but no radicular motor weakness.

At the Travel Board hearing in April 2011, the Veteran testified that he had limitation of motion, with shooting pain, in his neck, as well as muscle tightness.  He also reported he saw a physician at Jefferson Barracks who was "not surprised" that with his neck problems, the Veteran was having lower back and arm trouble.  He also indicated he did a pain management class at Jefferson Barracks in 2009.  He testified he took pain medication (Vicodin) and two different muscle relaxers, which sometimes relieved his pain.  

Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4).  Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate.  Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991).

In April 2011, the Veteran essentially testified that his service-connected cervical disability had worsened since the last VA examination in June 2008, to include pain, limitation of motion, and shooting pain.  VA treatment records dated subsequent to the 2008 VA examination show that he continued to complain of neck pain and continued to exhibit limitation of motion in his neck.  In light of the foregoing, as well as the question of whether the Veteran may have additional neurological symptoms or impairment related to the service-connected cervical disability, the Board finds that a remand for an additional VA examination(s) is necessary in order to address the current severity of his service-connected degenerative disc disease of the cervical spine.  


Entitlement to a TDIU Rating 

As noted above, the Veteran has expressed disagreement with the April 2009 rating decision, in which the RO denied entitlement to a TDIU rating.  As an SOC has yet to be issued on that issue, the claim for a TDIU rating must be remanded so that an SOC may be issued, and so that the Veteran has the opportunity to perfect this appeal.  Manlincon v. West, supra.  Only if the appeal is perfected should the issue be returned to the Board for appellate review. 

Accordingly, the case is REMANDED for the following action:

1. Send the Veteran an amended VCAA notice that specifically advises him regarding establishing service connection for a PTSD claim, as well as the regulatory changes which significantly relax the evidentiary burden for establishing occurrence of an in-service stressor.

2. The Veteran and his representative should be provided an SOC on the issue of entitlement to a TDIU rating.  If, and only if, a substantive appeal is filed, this issue should be returned to the Board for appellate review.

3. Request that the Veteran provide updated information regarding any recent treatment he may have received regarding his right shoulder, left shoulder, dermatitis, erectile dysfunction, psychiatric disability, PTSD, achalasia, and/or cervical spine disability.  With any assistance needed from the Veteran, obtain any additional pertinent records and associate them with the claims folder.  This should specifically include complete and current treatment records from the Jefferson Barracks, as well as any current VA treatment records pertaining to treatment for his right shoulder, left shoulder, dermatitis, erectile dysfunction, psychiatric disability, PTSD, achalasia, and/or cervical spine disability, dated from July 2010 to the present. 

4. Thereafter, schedule the Veteran for an appropriate VA examination to determine whether he has a right shoulder disability and/or left shoulder disability related to service, or as secondary to his service-connected cervical disability.  The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should specifically note that the file has been reviewed.  The examiner should be asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that any diagnosed right and/or left shoulder disability had an onset in service, is otherwise related to service; or was caused or, alternatively,  aggravated by the Veteran's cervical disability and residuals thereof, or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability).  The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided.

5. Schedule the Veteran for an appropriate VA examination in order to determine whether the Veteran has a skin disability, to include dermatitis, that may be related to service.  The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should specifically note that the claims folder has been reviewed.  The examiner should be asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that any current skin disability had an onset in or is causally related to service or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability).  The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided.

6. Schedule the Veteran for an appropriate VA examination in order to determine whether his erectile dysfunction is related to service or to the service-connected lumbar spine disability.  The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should specifically note that the claims folder has been reviewed.  The examiner should be asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that the Veteran's erectile dysfunction had an onset in service, is otherwise related to service; or was caused or, alternatively, aggravated by the Veteran's service-connected lumbar disability and residuals thereof, or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability).  The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided.

7. Schedule the Veteran for an appropriate VA examination to determine whether he has PTSD as defined by the criteria in DSM-IV, based upon his claimed in-service stressors, or any other psychiatric disorder, aside from PTSD, as a result of his military service, or as a result of any other service-connected disabilities.  Any and all studies deemed necessary, including psychological examination/testing, should be completed.  The claims folder, including a copy of this Remand, must be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review was accomplished.  The examiner should conduct a thorough psychiatric evaluation of the Veteran and, based on a review of the medical records and sound diagnostic principles, provide a diagnosis of any and all acquired psychiatric disorders found.

a. The examiner should be requested to provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's claimed in-service stressor experiences are sufficient to have caused the current psychiatric symptoms.  The examiner is also requested to determine whether it is at least as likely as not that the diagnostic criteria to support a diagnosis of PTSD have been satisfied by both the in-service stressors and the current symptomatology, consistent with the American Psychiatric Association Manual, DSM-IV. A complete rationale for any opinion(s) offered must be provided.

b. If the Veteran is found to have a psychiatric disorder other than PTSD, the examiner should be asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that any such psychiatric disorder had an onset in service, is otherwise related to service, or was caused or aggravated by any of the Veteran's service-connected disabilities, or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability).  The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided.

8. Schedule the Veteran for an appropriate VA examination in order to determine whether he has achalasia that may be related to service or to the service-connected cervical disability.  The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should specifically note that the claims folder has been reviewed.  The examiner should be asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that the Veteran's achalasia had an onset in service, is otherwise related to service; or was caused or, alternatively, aggravated by the Veteran's service-connected cervical disability and residuals thereof, or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability).  The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and an explanation provided.

9. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected cervical disability.  The examiner(s) should give detailed clinical findings of the symptomatology and/or manifestations attributable to the service-connected cervical disability - to specifically include any neurological or shoulder symptoms.  The claims folder should be made available for review of pertinent documents therein in connection with the examination, and the examiner is requested to note such review was accomplished.  All indicated tests and studies should be performed, including range of motion measurements and specific notation of the point at which, if any, motion is painful.  An opinion should be provided regarding whether the pain significantly limits functional ability during flare-ups or with extended use.  The examiner also should indicate whether the affected joints exhibit weakened movement, excess fatigability, or incoordination which could be attributed to the service-connected disability.  The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and explain why this is so.

10. Thereafter, the issues on appeal should be readjudicated.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto.

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



______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs