Citation Nr: 0812452 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-17 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to recognition of combat status. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for bleeding of the ears. 6. Entitlement to service connection for a left knee disorder. 7. Entitlement to service connection for residuals of a shrapnel wound of the left shoulder. 8. Entitlement to service connection for skin disorder, claimed as due to exposure to ionizing radiation. 9. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. 10. Evaluation of degenerative arthritis of the thoracolumbar spine, currently rated 10 percent disabling. 11. Evaluation of residuals of a hemorrhoidectomy, currently rated 0 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Associate Counsel INTRODUCTION The veteran served on active duty from March 1941 to December 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2007, the veteran testified before the undersigned. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for PTSD, entitlement to service connection for bilateral hearing loss disability, entitlement to service connection for tinnitus, entitlement to service connection for bleeding of the ears, entitlement to service connection for a left knee disorder, entitlement to service connection for residuals of a shrapnel wound of the left shoulder, entitlement to service connection for skin disorder, claimed as due to exposure to ionizing radiation, and whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder 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 participated in defense of the city of Palermo against enemy air attacks and experienced incoming enemy fire. 2. Degenerative arthritis of the thoracolumbar spine is manifested by forward flexion greater than 60 degrees, and combined range of motion greater than 120 degrees. 3. Residuals of a hemorrhoidectomy are manifested by moderate reduction of the lumen. CONCLUSIONS OF LAW 1. The veteran engaged in combat with the enemy. 38 U.S.C.A. § 1154(b) (West 2002). 2. The criteria for an evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5010-5237 (2007). 3. Residuals of a hemorrhoidectomy are 30 percent disabling. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7333 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 claims. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the veteran's claims were received after the enactment of the VCAA. A letter dated in August 2004 told the veteran that VA would make reasonable efforts to obtain evidence necessary to support his claims. He was informed that he was required to provide sufficient information to allow VA to obtain records. He was asked to identify any VA or private medical treatment. The various types of evidence that might support his claims were listed. The letter outlined VA's responsibilities with respect to obtaining evidence on the veteran's behalf. The veteran was asked to submit any evidence in his possession that pertained to his claims. The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The veteran was provided with such notice in March 2006. The March 2006 letter also indicated that in determining a disability rating, the RO considered evidence regarding nature and symptoms of the condition, severity and duration of the symptoms, and the impact of the condition and symptoms on employment. The evidence that might support a claim for an increased rating was listed. The veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. The veteran was provided with the rating criteria used to evaluate his rating claims in the March 2006 statement of the case. The veteran's claims were then readjudicated in December 2006 and March 2007. Thus, the Board concludes the veteran had actual knowledge of the criteria necessary to rate his claims and was then afforded additional process. Therefore, the veteran has been provided with all necessary notice regarding his claim for an increased evaluation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). While complete VCAA notice in this case was not provided prior to the initial adjudication, the notice was provided and subsequently readjudicated by the RO in the supplemental statement of the case dated in March 2007, which was prior to the transfer and certification of the case to the Board. The Board finds that the content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The veteran been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. Neither the veteran nor his representative has contended that any evidence relative to the issues decided herein is absent from the record. For the foregoing reasons, it is not prejudicial to the veteran for the Board to finally decide this appeal. I. Combat Status Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). The veteran's service personnel records show the veteran participated in defense of the city of Palermo against enemy air attacks. He testified during his Board hearing that his unit incurred incoming fire from the enemy. The Board finds that this establishes the veteran engaged in combat with the enemy. As shown below, his claim of entitlement to service connection for PTSD must now be remanded in light of his combat status. II. Rating Claims Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2007). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2 (2007). An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2007). Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2007). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Spine The veteran's degenerative arthritis of the thoracolumbar spine is currently rated 10 percent disabling. This evaluation contemplates the presence of periarticular pathology productive of painful motion of the thoracolumbar spine. 38 C.F.R. § 4.59 (2007). In order to warrant a higher evaluation, the veteran's disability must approximate the functional equivalent of forward flexion of the thoracolumbar spine to 60 degrees or less or the combined range of motion of the thoracolumbar spine limited to 120 degrees or less. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability 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. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; and a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. In December 2004, the veteran underwent VA examination. He complained of low back pain. He had no treatment for this disability. Inspection of the spine showed normal posture, normal gait, normal limbs, and normal curvature. Range of motion was forward flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 20 degrees, right lateral flexion to 28 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees. Repetitive motion brought on no complaints of pain. There was no spasm, guarding, deformity, or ankylosis. Neurological examination was normal. There was no evidence of any disc syndrome. The diagnosis was lumbago, apparently due to the aging process or possibly due to degenerative joint disease in the lumbosacral spine. There were no x-rays available. In August 2006, the veteran underwent VA examination. He complained of pain in the lumbar area. On examination, there were no abdominal deformities of the back or curvatures of the spine. Range of motion was forward flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, right lateral rotation to 30 degrees. He complained of pain at the end of all ranges of motion. It was relieved by returning to the neutral position. His ranges of motion were limited because of pain after repetitive use without symptoms of fatigue or weakness causing a major functional impact. There was no spasm, tenderness, gait abnormalities, or ankylosis. Neurological examination was normal. Intervertebral disc syndrome was not applicable. X-rays showed anterolisthesis and mild multilevel osteophytosis with mild disc space narrowing. The diagnosis was chronic lumbago, most likely due to degenerative disc disease. Based on the evidence of record, the Board finds that the veteran's thoracolumbar spine disability does not warrant a higher disability rating. First, the evidence shows the veteran was consistently able to flex his spine to more than 60 degrees. Even accounting for any functional loss due to pain on use, repetitive motion, fatigability, and incoordination, the Board finds that the evidence demonstrates the veteran was able to flex his spine to more than 60 degrees and did not complain of pain until 90 degrees. Furthermore, the evidence shows the combined range of motion of his thoracolumbar spine was more than 120 degrees. Pain on motion, repetitive movements, or fatigability did not reduce the veteran's combined range of motion or functionally reduce flexion to 60 degrees or less. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45 (2007). In addition, the veteran's VA examinations show he demonstrated no muscle spasm or guarding. He also was shown to have a normal gait and normal spinal contour. Therefore, the veteran's thoracolumbar spine disability does not warrant a higher evaluation under the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that the veteran's VA examination reports show his neurological examinations were normal. Therefore, separate ratings for any neurological abnormalities are not warranted. While the veteran's VA examinations indicated that intervertebral disc syndrome was not applicable, his x-rays in August 2006 indicated he was diagnosed with degenerative disc disease. Therefore, the Board will consider whether a higher evaluation is warranted under Diagnostic Code 5243. The evidence demonstrates the veteran did not incur incapacitating episodes lasting at least two weeks in the previous year, such that a 20 percent evaluation would be warranted under Diagnostic Code 5243. The veteran has not contended that he incurred incapacitating episodes lasting at least two weeks in the previous twelve months. Therefore, a 20 percent evaluation is not warranted under these criteria. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether a staged rating is warranted. However, the disability has not significantly changed and a uniform evaluation is warranted. Hemorrhoidectomy The veteran's residuals of a hemorrhoidectomy are rated noncompensable under the criteria of 38 C.F.R. § 4.114, Diagnostic Code 7334-7336 (2007). Under Diagnostic Code 7334, prolapse of the rectum is rated 30 percent when moderate, persistent or frequently recurring, and 50 percent when severe (or complete) and persistent. 38 C.F.R. § 4.114, Diagnostic Code 7333 (2007) provides ratings for stricture of the rectum and anus. A 30 percent rating is warranted for moderate reduction of lumen, or moderate constant leakage. A 50 percent rating is assigned for great reduction of lumen, or extensive leakage. In December 2004, the veteran underwent VA examination. He indicated he underwent surgery while in service on his rectal area. He denied any evidence of hemorrhoids or hemorrhoidectomy. During examination, the degree of sphincter control was very tight. There was no fecal leakage, involuntary bowel movements, or pad needed. He had no bleeding, thrombosis, or hemorrhoids. The veteran underwent no current treatment for this disability. On examination, there was no colostomy and no evidence of fecal leakage. The size of the lumen was very, very tight during rectal examination. There were no signs of anemia, fissures, hemorrhoids, or evidence of bleeding. The diagnosis was status post rectal prolapse, operated and presently asymptomatic. In August 2006, the veteran underwent VA examination. He indicated he had a hemorrhoidectomy sometime during active duty. Since that time, he had small caliber and more frequent stools. If he got too constipated, he would have pain in his rectal area. He has had no further recurrence of his hemorrhoids. The veteran reported adequate and normal sphincter control, no symptoms of frequency or fecal leakage, no subsequent bleeding hemorrhoids, and no current treatment other than herbs he used himself. On examination, there was no colostomy or fecal leakage. The size of the lumen was approximately one centimeter, but the veteran did experience extreme pain on insertion of the examiner's finger. There were no signs of anemia, fissures, hemorrhoids, or evidence of bleeding. The diagnosis was a history of hemorrhoidectomy several years ago. The examiner also noted residuals of some mild anal stenosis, which may have produced small caliber stools. This was most likely a complication arising from the hemorrhoidectomy. After reviewing the evidence, the Board finds that a 30 percent evaluation is warranted for the veteran's disability. The December 2004 VA examiner described the veteran's lumen as "very, very tight" during examination. While the August 2006 examiner indicated the veteran's lumen was one centimeter, he noted the veteran experienced severe pain during the examination. That examiner also indicated that the veteran's residuals of anal stenosis, which produced small caliber stools, were most likely a complication of his service-connected hemorrhoidectomy. During his July 2007 hearing with the undersigned, the veteran indicated that he was unable to pass anything larger than the size of his finger. Therefore, the Board finds that a 30 percent rating is warranted under the criteria of Diagnostic Code 7333 for moderate reduction of the lumen. Based on the August 2006 VA examiner's statements that the veteran's lumen was one centimeter and his description of the veteran's anal stenosis as mild, the Board finds that an evaluation of 50 percent is not warranted under 7333, because the evidence shows the veteran's disability was not characterized by great reduction of the lumen or extensive leakage. Furthermore, a 50 percent evaluation is not warranted under Diagnostic Code 7334 or 7336, because although the veteran experienced prolapse of the rectum in service, he underwent surgery, and was currently asymptomatic as to this diagnosis, according to the December 2004 VA examiner. Similarly, there are no hemorrhoid symptoms. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether a staged rating is warranted. However, the disability has not significantly changed and a uniform evaluation is warranted. ORDER Combat status is granted. An evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine is denied. An evaluation of 30 percent for residuals of a hemorrhoidectomy is granted, subject to the laws and regulations governing the payment of VA benefits. REMAND During the veteran's July 2007 hearing with the undersigned, he indicated that he had service subsequent to the active duty from March 1941 to December 1960. The veteran indicated that he service with the CBs, the Construction Battalions of the Navy, until 1968. On remand, the RO must make attempts to verify such service and, if verified, request all records of such service. With regard to the veteran's claim of entitlement to service connection for PTSD, the Board has determined that the veteran is entitled to combat status, as detailed above. Therefore, the veteran must be afforded a VA examination to determine whether he has PTSD and, if he does, whether the PTSD is related to the veteran's in-service combat. With regard to the veteran's claim of entitlement to service connection for residuals of a shrapnel wound to the left shoulder, the veteran testified during his Board hearing that he currently has a scar associated with this incident. The Board notes that the veteran's March 1941 entrance examination noted he had several scars on his arm and back. On remand, the RO should schedule the veteran for an examination to determine whether the scar on his left shoulder is the result of a shrapnel wound. The veteran's remaining claims must be remanded due to the veteran's contention that he had additional active duty, and there are additional service records not associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the veteran and request information regarding any active service after December 1960. If any additional service is verified, the RO should attempt to locate any associated service records. 2. Schedule the veteran for a PTSD examination. The examiner should accept that the veteran engaged in combat during service. The examiner is asked to confirm the veteran has PTSD. If he does, the examiner should comment on whether the veteran's PTSD is related to his combat experiences during service. 3. Schedule the veteran for an examination of his left shoulder scar. The examiner should accept the veteran's account of incurring a shrapnel wound in service. The examiner should then comment on whether the veteran has a scar of the left shoulder, that he did not have upon entry into service, that is the result of the shrapnel wound described by the veteran. 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. 2007). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs