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