Citation Nr: 0815057	
Decision Date: 05/07/08    Archive Date: 05/14/08

DOCKET NO.  05-15 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for residuals of a 
right eye injury.

3.  Entitlement to service connection for a sleep disorder 
claimed as secondary to a service-connected back disability.

4.  Entitlement to an initial rating in excess of 20 percent 
for degenerative disc disease of the lumbar spine with 
stenosis.

5.  Entitlement to an initial rating in excess of 10 percent 
for radiculopathy of the right leg.

6.  Entitlement to an initial a rating in excess of 10 
percent for radiculopathy of the left leg.

7.  Entitlement to an initial rating in excess of 50 percent 
for post traumatic stress disorder (PTSD).

8.  Entitlement to an initial compensable rating for loss of 
the left great toenail.

9.  Entitlement to a rating in excess of 10 percent for 
onychomyocosis and tinea pedis of the feet.

10.  Entitlement to a rating in excess of 10 percent for 
chronic obstructive pulmonary disease (COPD) with chronic 
bronchitis, to include the propriety of an April 2007 
reduction of a 30 percent rating for the disability effective 
September 1, 2006.  

11.  Entitlement to a total disability rating based on 
individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

J. B. Freeman, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1968 to August 
1971.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from several rating decisions of the RO in 
Lincoln, Nebraska.  A January 2006 rating decision denied 
service connection for tinnitus and residuals of a right eye 
injury and granted service connection for the loss of the 
left great toenail, assigning a noncompensable rating.  The 
issue of an initial rating in excess of 50 percent for PTSD 
arises from the grant of service connection in a February 
2006 rating decision.  The issue of an initial rating in 
excess of 20 percent for degenerative disc disease arises 
from the grant of service connection in a June 2006 rating 
decision.  The issue of TDIU arises from an October 2006 
rating decision denying entitlement.  Finally, the issues of 
initial ratings in excess of 10 percent for radiculopathy of 
each leg and increased ratings for onychomyocosis and tinea 
pedis and chronic obstructive pulmonary disease with chronic 
bronchitis arise from an April 2007 rating decision.  

Many of these issues have been before the Board previously.  
The issues of increased ratings for COPD and onychomyocosis 
were previously denied in March 2005 and April 2000, 
respectively.  The veteran did appeal to U.S. Court of 
Appeals for Veterans Claims, but then abandoned the issues in 
January 2006 and March 2001, respectively.  The veteran 
previously appealed the issue of service connection for 
degenerative disc disease of the lumbar spine, which was 
remanded by the Board in March 2005.  The June 2006 grant of 
service connection satisfied this appeal in full and the 
issue of an increased initial rating is a new and separate 
appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

The claim for an increased rating for COPD and the claim for 
entitlement to a TDIU are addressed in the REMAND portion of 
the decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence on file fails to establish that tinnitus is 
related to a disease or injury in service.

2.  The evidence on file fails to establish that any current 
right eye disability is related to a disease or injury in 
service.

3.  The veteran does not have a currently diagnosed sleep 
disorder disability.

4.  The veteran's service-connected degenerative disc disease 
of the lumbar spine with stenosis has been manifested by 
limitation of motion which is not "severe," forward flexion 
that exceeds 30 degrees, and flare ups, with no prescribed 
bedrest, and no neurological functional impairment.

5.  The veteran's service-connected peripheral neuropathy of 
the right leg has not been manifested by more than "mild" 
symptoms at any time during the period on appeal. 

6.  The veteran's service-connected peripheral neuropathy of 
the left leg has not been manifested by more than "mild" 
symptoms at any time during the period on appeal.

7.  The veteran's service-connected PTSD has been manifested 
by moderate symptoms of avoidance, nightmares, depression, 
flashbacks without hallucination, delusions, impaired impulse 
control, episodes of violent, or impairment in the ability to 
maintain himself or perform the activities of daily living. 

8.  The veteran's service-connected removal of the left great 
toenail has not been manifested by more than "mild" 
functional impairment at any time. 

9.  The veteran's tinea pedis and onychomyocosis are confined 
to an area which is not exposed, are not at least 20 percent 
of the veteran's entire body, and have not required 
corticosteroid or immunosuppressive drug treatment at any 
time.  


CONCLUSIONS OF LAW

1.  The veteran's tinnitus was not incurred in or aggravated 
by active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 
C.F.R. §§ 3.303, 3.304 (2007).

2.  A right eye disability was not incurred in or aggravated 
by active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 
C.F.R. §§ 3.303, 3.304 (2007).

3.  A sleep disorder was not incurred in or as a result of 
the veteran's active duty service and it is not proximately 
due to or the result of a service-connected disability.  38 
U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 
3.303, 3.310 (2007).

4.  The criteria for an initial evaluation greater than 20 
percent for degenerative disc disease of the lumbar spine 
with stenosis are not met.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 
4.71a, Diagnostic Code 5243 (2007).

5.  The criteria for an initial evaluation greater than 10 
percent for peripheral neuropathy of the right leg are not 
met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, 
Diagnostic Code 8521 (2007).

6.  The criteria for an initial evaluation greater than 10 
percent for peripheral neuropathy of the left leg are not 
met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, 
Diagnostic Code 8521 (2007).

7.  The criteria for an initial evaluation greater than 50 
percent for PTSD are not met.  38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007).

8.  The criteria for an initial compensable evaluation for 
loss of the left great toenail are not met.  38 U.S.C.A. § 
1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5299-
5284 (2007).

9.  The criteria for a rating in excess of 10 percent for 
onychomycosis of both feet have not been met.  38 U.S.C.A. §§ 
1155; 38 C.F.R. § 4.118, DC 7813 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folders, and has an obligation to provide 
reasons and bases supporting this decision.  See Gonzales v. 
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must 
review the entire record, but does not have to discuss each 
piece of evidence in detail).  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) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).  

The Board must assess the credibility and weight of all 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  Equal 
weight is not accorded to each piece of evidence contained in 
the record; every item of evidence does not have the same 
probative value.  When all the evidence is assembled, VA is 
responsible for determining whether the evidence supports the 
claim or is in relative equipoise, with the appellant 
prevailing in either event, or whether a preponderance of the 
evidence is against a claim, in which case, the claim is 
denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act

With respect to the veteran's claims, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II), the United States Court of 
Appeals for Veterans Claims (Court) held that 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; (3) that the claimant is expected to 
provide; and (4) request that the claimant provide any 
evidence in his possession that pertains to the claim.  

Prior to initial adjudication of the veteran's claim, a 
letter dated in October 2004 fully satisfied the duty to 
notify provisions for the veteran's tinnitus and right eye 
claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); 
Quartuccio, at 187.  A January 2007 letter satisfied the 
notice provisions on the sleep disorder claim.  See id.  The 
veteran was aware that it was ultimately his responsibility 
to give VA any evidence pertaining to the claims.  The 
October 2004 and January 2007 letters told him to provide any 
relevant evidence in his possession.  See Pelegrini II, at 
120-121.  

Since the Board has concluded that the preponderance of the 
evidence is against the claims for service connection, any 
questions as to the appropriate disability rating or 
effective date to be assigned are rendered moot, and no 
further notice is needed.  See Dingess v. Nicholson, 19 Vet. 
App. 473 (2006).

The U.S. Court of Appeals for Veterans Claims (Court) 
recently held that "the statutory scheme contemplates that 
once a decision awarding service connection, a disability 
rating, and an effective date has been made, § 5103(a) notice 
has served its purpose, and its application is no longer 
required because the claim has already been substantiated."  
Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this 
case, the veteran's claims for service connection for his 
left great toe, PTSD, back, and bilateral radiculopathy were 
granted, disability ratings and effective dates assigned, in 
January 2005, February and June 2006 and April 2007 decisions 
of the RO.  VA's duty to notify under 38 U.S.C.A. § 5103(a) 
is discharged.  See Sutton v. Nicholson, 20 Vet. App. 419 
(2006).  Accordingly, the Board concludes that any error in 
failing to provide adequate pre-adjudicative notice under 38 
U.S.C.A. § 5103(a) was harmless.  

For the claim for an increased rating for onychomyocosis, the 
second, third and fourth elements of Pelegrini II notice were 
satisfied in a January 2007 letter.  The U.S. Court of 
Appeals for Veterans Claims (Court) recently ruled that, in 
claims for increased ratings not arising from grants of 
service connection, the duty to notify requirements for an 
increased-compensation claim, section 5103(a) compliant 
notice must meet the following four part test: 

(1) that the Secretary notify the claimant that, to 
substantiate a claim, the claimant must provide, or ask 
the Secretary to obtain, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life; 

(2) if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a 
higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or 
increase in severity of the disability and the effect of 
that worsening has on the claimant's employment and 
daily life (such as a specific measurement or test 
result), the Secretary must provide at least general 
notice of that requirement to the claimant; 

(3) the claimant must be notified that, should an 
increase in disability be found, a disability rating 
will be determined by applying relevant Diagnostic 
Codes, which typically provide for a range in severity 
of a particular disability from noncompensable to as 
much as 100 percent (depending on the disability 
involved), based on the nature of the symptoms of the 
condition for which disability compensation is being 
sought, their severity and duration, and their impact 
upon employment and daily life; 

(4) the notice must also provide examples of the types 
of medical and lay evidence that the claimant may submit 
(or ask the Secretary to obtain) that are relevant to 
establishing entitlement to increased compensation, 
e.g., competent lay statements describing symptoms, 
medical and hospitalization records, medical statements, 
employer statements, job application rejections, and any 
other evidence showing an increase in the disability or 
exceptional circumstances relating to the disability.  

Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  For the 
following reasons, the Board finds that the elements of the 
Vazquez-Flores test have either been met or that any error is 
not prejudicial.  

Preliminarily, the Board notes that the notice provided in 
this case was issued prior to the decision in Vazquez-Flores.  
As such it does not take the form prescribed in that case.  
Failure to provide pre-adjudicative notice of any of the 
necessary duty to notify elements is presumed to create 
prejudicial error.  Sanders v. Nicholson, 487 F.3d 881 
(2007).  The Secretary has the burden to show that this error 
was not prejudicial to the veteran.  Id., at 889.  Lack of 
prejudicial harm may be shown in three ways: (1) that any 
defect was cured by actual knowledge on the part of the 
claimant, (2) that a reasonable person could be expected to 
understand from the notice what was needed, or (3) that a 
benefit could not have been awarded as a matter of law.  Id., 
at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, 
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).  The Federal Circuit indicated 
that this was not an exclusive list of ways that error may be 
shown to be non prejudicial.  See Sanders, at 889.  In order 
for the Court to be persuaded that no prejudice resulted from 
a notice error, the record must demonstrate that, despite the 
error, the adjudication was nevertheless essentially fair.  
See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

Prior to the initial adjudication of the claim, the RO sent 
the veteran a May 2005 letter, which requested that the 
veteran provide evidence describing how his disability had 
worsened.  In addition, the veteran was questioned about the 
effect that worsening has on his employment and daily life 
during the course of the 2007 VA examination performed in 
association with this claim.  The Board finds that the notice 
given, the questions directly asked and the responses 
provided by the veteran both at interview and in his own 
statements show that he knew that the evidence needed to show 
that his disability had worsened and what impact that had on 
his employment and daily life.  As the Board finds the 
veteran had actual knowledge of the requirement, any failure 
to provide him with adequate notice is not prejudicial.  See 
Sanders, supra.  The Board finds that the first criterion is 
satisfied.  See Vazquez-Flores.  

As to the second element, the Board notes that the veteran is 
service connected for onychomyocosis and tinea pedis of the 
feet.  Tinea pedis and onychomyocosis fall under Diagnostic 
Code 7813, Dermatophytosis.  See 38 C.F.R. § 4.118 (2007).  
This is the only Diagnostic Code to rate this disability and 
it is not cross referenced to any other Codes for the 
purposes of evaluation.  See id.  The Diagnostic Code relies 
on a single measurement or test to establish a higher rating.  
See id.  The veteran was not provided notice of this as 
required by Vazquez-Flores, supra.  The Board concludes, 
however, that this error was not prejudicial.  The RO 
provided an opportunity to undergo the necessary test in 
March 2007 and the veteran did so.  The veteran has been 
represented by an attorney for the entire period on appeal 
and the veteran's representative has submitted direct 
argument on this issue that will be discussed below.  Given 
the nature of the veteran's claim, that he is represented by 
an attorney and the fact that the RO scheduled him for an 
examination in connection with this claim that the veteran 
underwent, the Board finds that a reasonable person would 
have known the general requirements necessary to establish a 
higher rating.  The Board finds that any error in failure to 
provide Vazquez-Flores element two notice is not prejudicial.  
See Sanders, supra.  

As to the third element, the January 2007 provided notice to 
the veteran that a disability rating would be determined by 
application of the ratings schedule and relevant Diagnostic 
Codes based on the extent and duration of the signs and 
symptoms of his disability and their impact on his employment 
and daily life.  See Vazquez-Flores.  The Board finds that 
the third element of Vazquez-Flores is satisfied.  See id.  

As to the fourth element, the 2005 letter did provide notice 
of the types of evidence, both medical and lay, including 
employment records, that could be submitted in support of his 
claim.  The Board finds that the fourth element of Vazquez-
Flores is satisfied.  See id.  

Since the RO continued the 10 percent disability rating at 
issue here for the veteran's service-connected onychomyocosis 
disability, and the Board has concluded that the 
preponderance of the evidence is against assigning a higher 
rating, there is no question as to an effective date to be 
assigned, and no further notice is needed.  See Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  

The Board also concludes VA's duty to assist has been 
satisfied.  The veteran's service medical records and VA 
medical records are in the file.  Private medical records 
identified by the veteran have been obtained, to the extent 
possible.  In October 2006, the veteran submitted a letter 
from the Social Security Administration (SSA) notifying him 
that he did not qualify for benefits under the disability 
insurance program.  The letter states that the veteran's 
claim failed for lack of a qualifying work history sufficient 
to entitle him to benefits, regardless of his disability 
status.  Such a denial indicates that the veteran was denied 
in the first step of the sequential evaluation process.  See 
generally 20 C.F.R. § 404.1520 (2007).  The letter also 
states that the veteran also failed to qualify for any other 
benefits, i.e. supplemental security income, based on the 
application he filed.  See generally 20 C.F.R. § 416.920 
(2007).  A denial in the first step means that the SSA did 
not proceed to gather evidence about the veteran's 
disabilities.  See 20 C.F.R. §§ 404.1520, 416.920.  The 
veteran has been notified, as discussed above, that he should 
submit any relevant records in his possession to VA.  The 
Board finds that, because any relevant records that the SSA 
might possess are also in the possession of the veteran and 
because he has not referenced outstanding records that he 
wanted VA to obtain or that he felt were relevant to the 
claims, any error in failing to obtain SSA records is 
harmless.  See 38 U.S.C.A. § 5107 (a claimant has the 
responsibility to support a claim for benefits); see also 
Hyatt v. Nicholson, 21 Vet. App. 390 (2007).

The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on the claim, as defined by law.

The veteran was afforded a March 2004 VA examination to 
evaluate his tinnitus and determine whether he had a 
disability related to service.  As will be discussed below, 
the examiner found that the veteran's tinnitus was not at 
least as likely as not related to service.  As the Board 
finds that the preponderance of the evidence is against a 
relationship between the veteran's tinnitus and service, 
further examination or opinion is not needed on the claim.

The veteran was afforded a November 2004 VA examination to 
evaluate his right eye and determine whether he had a 
disability related to his inservice right eye injury.  As 
will be discussed below, the examiner found deficits in the 
right eye but concluded that did not have any residuals 
secondary to his injury.  As the Board finds that the 
preponderance of the evidence is against a relationship 
between a current right eye disability and the inservice 
injury, further examination or opinion is not needed on the 
claim.

The veteran was afforded March and April 2007 medical 
examinations to obtain an opinion as to whether the veteran 
had a sleep disability.  Further examination or opinion is 
not needed on the sleep disorder claim because, at a minimum, 
there is no persuasive and competent evidence that the 
claimed condition exists as a distinct, medically diagnosable 
disability.  This is discussed in more detail below.

The duty to assist includes, when appropriate, the duty to 
conduct a thorough and contemporaneous examination of the 
veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In 
addition, where the evidence of record does not reflect the 
current state of the veteran's disability, a VA examination 
must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 
(1991); 38 C.F.R. § 3.327(a) (2007).

The RO provided the veteran appropriate VA examinations for 
PTSD in December 2005 and in March 2007 for his spine 
disability, neuropathy of each leg, and feet.  There is no 
objective evidence indicating that there has been a material 
change in the severity of the veteran's service-connected 
disorders since he was last examined.  38 C.F.R. § 3.327(a).  
The duty to assist does not require that a claim be remanded 
solely because of the passage of time since an otherwise 
adequate VA examination was conducted.  VAOPGCPREC 11-95.  
The 2005 and 2007 VA examination reports are thorough and 
supported by VA outpatient treatment records.  The 
examination in this case is adequate upon which to base a 
decision.

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006).

II. Service Connection

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
active service.  38 U.S.C.A. § 1110.  For the showing of 
chronic disease in service there is required a combination of 
manifestations sufficient to identify the disease entity, and 
sufficient observation to establish chronicity at the time.  
38 C.F.R. § 3.303(b).  If chronicity in service is not 
established, a showing of continuity of symptoms after 
discharge is required to support the claim.  Id.  Service 
connection may be granted for any disease diagnosed after 
discharge, when all of the evidence establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed 
disorder, there must be (1) medical evidence of a 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 current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

a. Tinnitus

The veteran contends that he has tinnitus as a result of 
service.  For the reasons that follow, the Board concludes 
that service connection is not warranted.

The veteran was seen at a March 2004 audiological examination 
where he reported tinnitus since service.  The audiologist 
diagnosed tinnitus in both ears.  The Board is satisfied with 
the evidence of a current disability.

The Board finds, however, that the veteran did not incur the 
disability in service.  The Board acknowledges that the 
veteran is competent to give evidence about what he 
experienced; for example, he is competent to report that he 
experiences certain symptoms.  See, e.g., Layno v. Brown, 6 
Vet. App. 465 (1994).  Competency, however, must be 
distinguished from weight and credibility, which are factual 
determinations going to the probative value of the evidence.  
See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Review of 
the claims file reveals numerous instances of the veteran 
contradicting his own claim.  

The veteran's service medical records are silent for any 
complaint or diagnosis of tinnitus.  While the veteran did 
have noise exposure and has been service connected for 
hearing loss, there is no evidence to show that he had 
tinnitus while inservice.

The veteran has maintained during the course of the instant 
appeal that he has had tinnitus since he separated from 
service in 1971.  During a January 1999 VA audiological 
examination, a February 1999 VA audiology clinic visit and an 
April 1999 VA audiological examination, he denied having 
tinnitus.  In short, at all times prior to the instant 
appeal, he has denied the existence of the disability.  The 
Board finds that the veteran's allegations that the tinnitus 
began in service are not credible.  

The March 2004 VA examination report contains an opinion that 
the veteran's tinnitus is not at least as likely as not 
related to service.  This is the sole competent medical 
opinion of record.  The Board finds that the preponderance of 
the evidence is against either incurrence of tinnitus 
inservice or a relationship between the veteran's tinnitus 
and any incident of service.  As the Board finds that the 
veteran's statements regarding inservice incurrence are 
incredible and his service medical records are devoid of 
mention of tinnitus, service connection is not available 
based on continuity of symptomatology.  See 38 C.F.R. 
§ 3.303.  Service connection must also fail on the grounds of 
Hickson, supra.  

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

b. Residuals of a Right Eye Injury

The veteran contends that he has a right eye disability as a 
result of an injury during service.  For the reasons that 
follow, the Board concludes that service connection is not 
warranted.  

The veteran was seen at a November 2004 VA examination.  The 
veteran stated that he had a foreign body sensation in his 
right eye.  He had undergone cataract surgery in the right 
eye in November 2003, with intraocular lens placement.  The 
veteran's visual acuity with glasses after his surgery was 
20/30 near and 20/60 distance.  The Board concedes that the 
veteran been diagnosed with a cataract disability, status 
post surgery.  

The veteran's service medical records do indicate that he was 
treated for a right eye injury.  In October 1968, the veteran 
was treated during service for a penetrating glass injury of 
the eye.  His records indicate that the glass was removed and 
no complications or sequelae are mentioned.  

The claim must fail, however, because the medical evidence is 
against a relationship between the right eye cataract and the 
inservice injury.  The examiner at his November 2004 VA 
examination indicated that the cataract was not the result of 
the glass injury.  He further indicated that the veteran had 
no residual deficits secondary to the injury that could be 
found on examination. 

The Board acknowledges that the veteran is competent to give 
evidence about what he experienced; for example, he is 
competent to report that he experiences certain symptoms.  
See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  
Competency, however, must be distinguished from weight and 
credibility, which are factual determinations going to the 
probative value of the evidence.  See Rucker v. Brown, 10 
Vet. App. 67, 74 (1997).  He is not, however, competent to 
diagnose any medical disorder or render an opinion as to the 
cause or etiology of any current disorder because he does not 
have the requisite medical knowledge or training.  See 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  The competent 
medical evidence shows that the veteran has no deficits 
related to the right eye injury which occurred during 
service.  He has offered no medical evidence of his own to 
counter this, and it is uncontested throughout the remaining 
VA treatment records.  The Board finds that the preponderance 
of the evidence is against a relationship between the 
veteran's current right eye disability and his inservice 
injury.  The Board concludes that service connection must be 
denied.  See 38 C.F.R. § 3.303, supra.  

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

c. Sleep Disorder

The primary basis of the veteran's claim is that service 
connection should be granted for the veteran's sleep disorder 
as being caused by the service-connected spine disability.  
In addition to service connection on a direct basis as 
discussed above, service connection may be established on a 
secondary basis for a disability, shown to be proximately due 
to, or the result of, a service-connected disease or injury.  
38 C.F.R. § 3.310(a).  Establishing service connection on a 
secondary basis requires evidence sufficient to show (1) that 
a current disability exists and (2) that the current 
disability was either (a) caused by or (b) aggravated by a 
service-connected disability.  38 C.F.R. § 3.310(a); Allen v. 
Brown, 7 Vet. App. 439 (1995) (en banc).  For service 
connection on either direct or secondary bases, diagnosis of 
a current disability is required.  See 38 C.F.R. §§ 3.303, 
3.310.

The veteran was examined for sleep disturbances in April 
2007.  The examiner indicated that the veteran reported 
difficulty sleeping most nights.  Following examination, the 
examiner stated that the veteran did not have a diagnosable 
sleep disorder, as the sleep disturbances were an aspect of 
PTSD and he did not have evidence of insomnia, a circadian 
sleep rhythm disorder, a nightmare or sleep terror disorder, 
a substance induced disorder or insomnia related to a medical 
disorder.  

The Board acknowledges that the veteran is competent to give 
evidence about what he experienced; for example, he is 
competent to report that he experiences difficulty sleeping.  
See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  He is 
not, however, competent to diagnose any medical disorder or 
render an opinion as to the cause or etiology of any current 
disorder because he does not have the requisite medical 
knowledge or training.  See Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992).  The remaining evidence of record does not 
reveal a diagnosis of a sleep disorder.  

The Board finds that the preponderance of the evidence shows 
that the veteran does not have a current diagnosis of a sleep 
disorder.  The Board concludes that service connection is not 
warranted on either a direct or secondary basis.  See 
Hickson, supra; see also Allen, supra.  

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

III. Increased Ratings

The veteran contends that he is entitled to higher ratings 
for his various service connected disabilities.  For the 
reasons that follow, the Board concludes that an increased 
rating is not warranted.

Disability evaluations are determined by evaluating the 
extent to which a veteran's service-connected disability 
adversely affects his or her ability to function under the 
ordinary conditions of daily life, including employment, by 
comparing his or her symptomatology with the criteria set 
forth in the 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 the residual 
conditions in civilian occupations.  Generally, the degree of 
disabilities specified are considered adequate to compensate 
for considerable loss of working time from exacerbation or 
illness proportionate to the severity of the several grades 
of disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 
38 C.F.R. § 4.1 (2007).  Separate diagnostic codes identify 
the various disabilities and the criteria for specific 
ratings.  If two disability evaluations are potentially 
applicable, the higher evaluation will be assigned to the 
disability picture that more nearly approximates the criteria 
required 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.  However, the evaluation of 
the same disability under various diagnoses, known as 
pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2007). 

Where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  Consistent with the facts found, the rating may be 
higher or lower for segments of the time under review on 
appeal, i.e., the rating may be "staged."  Fenderson v. 
West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 
Vet. App. 505 (2007).

a. Spine

The veteran is service connected for degenerative disc 
disease of the lumbar spine, status post a lumbar 
laminectomy.  The veteran contends that he is entitled to an 
initial rating in excess of 20 percent.  For the reasons that 
follow, the Board concludes that an initial rating in excess 
of 20 percent is not warranted.  

During the pendency of this claim, the criteria for rating 
spine disabilities were revised (effective September 23, 2002 
and September 26, 2003).  The Board will evaluate the 
veteran's claim under both the criteria in the VA Schedule 
for Rating Disabilities in effect at the time of his filing 
and the current regulations in order to ascertain which 
version would accord him the highest rating.  According to 
VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 
F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled 
Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it 
conflicts with the precedents of the United States Supreme 
Court (Supreme Court) and the Federal Circuit.  Karnas is 
inconsistent with Supreme Court and Federal Circuit precedent 
insofar as Karnas provides that, when a statute or regulation 
changes while a claim is pending before VA or a court, 
whichever version of the statute or regulation is most 
favorable to the claimant will govern unless the statute or 
regulation clearly specifies otherwise.  Accordingly, the 
rule adopted in Karnas no longer applies in determining 
whether a new statute or regulation applies to a pending 
claim.  Id.

However, none of the above cases or General Counsel opinions 
prohibits the application of a prior regulation to the period 
on or after the effective date of a new regulation.  Thus, 
the rule that the veteran is entitled to the most favorable 
of the versions of a regulation that was revised during his 
appeal allows application of the prior versions of the 
applicable diagnostic codes at 38 C.F.R. § 4.71a to the 
period on or after the effective dates of the new 
regulations.

The RO considered all these changes in adjudicating the 
veteran's claim.  Therefore, there is no prejudice to the 
veteran by this Board decision.  See Bernard v. Brown, 4 Vet. 
App. 384 (1993).

Effective September 23, 2002, VA revised the criteria for 
diagnosing and evaluating intervertebral disc syndrome.  67 
Fed. Reg. 54,345 (Aug. 22, 2002).  When VA revised the 
criteria for evaluating general diseases and injuries of the 
spine effective September 26, 2003, as discussed above, VA 
also reiterated the changes to Diagnostic Code (DC) 5293 (now 
reclassified as Diagnostic Code 5243) for intervertebral disc 
syndrome.

In determining whether the veteran is entitled to a higher 
rating, the Board must consider (1) whether an increased 
rating is warranted under the "old" criteria at any time; 
(2) whether an increased rating is warranted under the 
"new" criteria for intervertebral disc syndrome at any time 
on or after September 23, 2002; and (3) whether an increased 
rating is warranted under the "new" criteria for other 
disabilities of the thoracolumbar spine at any time on or 
after September 26, 2003.  The effective date of any rating 
assigned under the revised schedular criteria may not be 
earlier than the effective date of that change; the Board 
must apply only the earlier version of the regulation for the 
period prior to the effective date of change.  See VAOPGCPREC 
3-2000; 38 U.S.C.A. § 5110(g) (West 2002) (where compensation 
is awarded pursuant to any Act or administrative issue, the 
effective date of such award or increase shall be fixed in 
accordance with the facts found but shall not be earlier than 
the effective date of the Act or administrative issue).

The currently assigned 20 percent rating would have been 
assigned for moderate intervertebral disc syndrome under the 
old Diagnostic Code 5293.  A 40 percent rating could be 
assigned under the old criteria for intervertebral disc 
syndrome that is severely disabling with recurring attacks 
and intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 
5293 (2002).  Under that code, the maximum schedular rating 
of 60 percent is assigned for intervertebral disc disease 
which is pronounced with persistent symptoms compatible with 
sciatic neuropathy with characteristic pain and demonstrable 
muscle spasm, absent ankle jerk, or other neurological 
findings appropriate to site of diseased disc, little 
intermittent relief.  A precedent opinion of VA's Office of 
General Counsel, VAOPGCPREC 36-97 (1997), held that 
Diagnostic Code 5293 involves loss of range of motion because 
the nerve defects and resulting pain associated with injury 
to the sciatic nerve may cause limitation of motion of the 
cervical, thoracic, or lumbar vertebrae.

In considering the evidence of record, the Board notes that 
the veteran does have diagnosed neurological complications in 
his lower extremities, appropriate to the site of the 
diseased disc.  The veteran began reporting daily 
paresthesias in his lateral thighs at his April 2006 VA 
examination.  These have been separately service connected as 
will be discussed below.  In the period prior to the grant of 
service connection for neuropathy as a separate disability, 
the veteran did not have symptoms of demonstrable muscle 
spasm, absent ankle jerk, or any kind of loss of sensory, 
reflex or motor function.  In February 2001, the veteran 
denied radicular symptoms.  The Board finds that the 
veteran's degenerative disc disease symptoms are not 
"severe" as contemplated by DC 5293; a higher initial 
rating is not warranted under this DC.  See 38 C.F.R. § 4.71a 
(2002).  

The revisions to 38 C.F.R. § 4.71a, Diagnostic Code 5293, for 
rating intervertebral disc syndrome provide that preoperative 
or postoperative intervertebral disc syndrome is to be 
evaluated either on the total duration of incapacitating 
episodes over the past 12 months or by combining under 38 
C.F.R. § 4.25 separate evaluations of its chronic orthopedic 
and neurologic manifestations along with evaluations for all 
other disabilities, whichever method results in the higher 
evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003).  
Effective September 26, 2003, intervertebral disc syndrome 
was assigned a new diagnostic code number (5243), and the 
instruction with respect to the separate evaluation of 
neurologic and orthopedic manifestations was re-worded and 
moved to Note 1, following the General Rating Formula for 
Diseases and Injuries of the Spine, and the above-mentioned 
instruction was re-phrased to state that intervertebral disc 
syndrome (pre-operatively or post-operatively) is to be 
evaluated either under 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 method results in the higher evaluation 
when all disabilities are combined under section 4.25.  
However, these revisions were intended to be clarifying and 
non-substantive in nature.  See Schedule for Rating 
Disabilities; The Spine, 67 Fed. Reg. 56,509, 56,510 (Sept. 
4, 2002) (indicating that the then-proposed amendment "would 
make editorial changes", but would not "represent any 
substantive change to the recently adopted evaluation 
criteria for intervertebral disc syndrome"). (The Board 
notes that some of the Notes were inadvertently omitted when 
Diagnostic Code 5293 was re-published as Diagnostic Code 5243 
in August 2003; however, this has since been corrected.  See 
Schedule for Rating Disabilities; The Spine; Correction, 69 
Fed. Reg. 32,449 (June 10, 2004)).

With regard to the first method of evaluation (total duration 
of incapacitating episodes over the past 12 months), the new 
criteria provide that a 10 percent evaluation is warranted if 
intervertebral disc syndrome is manifested by incapacitating 
episodes having a total duration of at least one week but 
less than two weeks during the past 12 months.  A 20 percent 
evaluation is warranted if incapacitating episodes have a 
total duration of at least two weeks but less than four 
weeks; a 40 percent rating is warranted if the total duration 
is at least four weeks but less than six weeks; and a 60 
percent rating is warranted if the total duration is at least 
six weeks.  See 38 C.F.R. § 4.71a, DC 5293 (2003).

For purposes of evaluations under 5293, 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.  The 
term "chronic orthopedic and neurologic manifestations" 
were defined as "orthopedic and neurologic signs and 
symptoms resulting from intervertebral disc syndrome that are 
present constantly, or nearly so".  38 C.F.R. § 4.71a, 
Diagnostic Code 5293 (2003), Note (1). (As noted previously, 
effective from September 26, 2003, the instruction with 
respect to the separate evaluation of neurologic and 
orthopedic manifestations was re-worded and moved to Note 1, 
following the General Rating Formula for Diseases and 
Injuries of the Spine; however, the change was intended to be 
clarifying and non-substantive in nature.)

The Board notes that the veteran's treatment records show no 
instance of physician prescribed bedrest.  In March 2004, the 
veteran reported that, since he stopped working in 1996, he 
has had few, if any, flare ups.  He did report that he had 
flare ups at his April 2006 VA examination.  The veteran's VA 
treatment records do not show any prescribed bedrest.  As 
such, the Board concludes that the criteria for an initial 
rating in excess of 20 percent are not met under the 
incapacitating episode criteria of DC 5243.  See 38 C.F.R. 
§ 4.71a (2007).

The Board has also considered the application of other 
Diagnostic Codes.  As with the ratings for intervertebral 
disc syndrome, the criteria rating other back disabilities 
were revised.  Effective September 26, 2003, a General 
Ratings Formula was instituted to evaluate back disabilities.  
As above, the Board has considered both the prior and current 
regulations.  See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) 
(West 2002).

Under 38 C.F.R. § 4.71a, DC 5292 (as in effect prior to 
September 26, 2003), a 20 percent rating is warranted where 
the limitation of motion in the lumbar spine is "moderate," 
and a 40 percent evaluation is assigned for "severe" 
limitation of motion.

The Board observes that the words "moderate" and "severe" 
are not defined in the VA rating schedule.  Rather than 
applying a mechanical formula, the Board must evaluate all of 
the evidence to the end that its decisions are "equitable 
and just."  38 C.F.R. § 4.6 (2007).

Disabilities of the spine, excepting degenerative disc 
disease, are currently rated under the General Rating Formula 
for Diseases and Injuries of the Spine.  See 38 C.F.R. § 
4.71a, DC 5237-5243.  Under the Formula, a 20 percent 
evaluation is assigned for forward flexion of the 
thoracolumbar spine greater than 20 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.  Id.  A 40 percent evaluation 
requires forward flexion of the thoracolumbar spine 30 
degrees or less; or, favorable ankylosis of the entire 
thoracolumbar spine.  Id.  A 50 percent evaluation requires 
unfavorable ankylosis of the entire thoracolumbar spine.  Id.  
A 100 percent evaluation is warranted where unfavorable 
ankylosis of the entire spine is demonstrated.  Id.  These 
evaluations are for application 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.  Id.

For VA compensation purposes, normal forward flexion of the 
thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 
degrees, left and right lateral flexion are 0 to 30 degrees, 
and left and right lateral rotation are 0 to 30 degrees.  68 
Fed. Reg. 51454, 51456 (codified at 38 C.F.R. § 4.71a, 
Diagnostic Codes 5235 to 5243, Note (2)).  Although the 
criteria under Diagnostic Code 5292 were less defined than 
the current criteria and numerical ranges of motion were not 
provided in the prior rating criteria, guidance can be 
obtained from the amended regulations.  In adopting specific 
ranges of motion to define what is normal, VA stated that the 
ranges of motion were based on the American Medical 
Association Guides to the Evaluation of Permanent Impairment, 
2nd ed., (1984), which is the last edition of the Guides that 
measured range of motion of the spine using a goniometer.  
See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 
2002).  In other words, even though pre-2003 regulations did 
not define normal range of motion for the spine, the current 
definition is based on medical guidelines in existence since 
1984, and the Board can consider the current ranges of motion 
to rating spine disabilities under the old criteria.

The earliest records pertinent to this claim do not provide 
assessments of range of motion.  In February 1996, the 
veteran complained of back pain and he was begun on 
medication.  In 2000 and 2001, the veteran complained of back 
pain, without radicular symptoms.  The veteran received MRI 
and x-ray studies in April and May 2002 which showed the 
progression of his disability, but, again, did not provide an 
assessment of functional loss.

At a March 2004 VA examination, the veteran reported fairly 
persistent pain in his lower back.  He denied the use of a 
brace and he indicated that he did not have significant flare 
ups as he was unemployed.  The veteran reported being able to 
perform daily duties around the house.  On examination, the 
veteran had forward flexion to 70 degrees with pain starting 
at 45 degrees, extension to 5 degrees, bilateral lateral 
flexion to 25 degrees and bilateral rotation to 35 degrees.  
The veteran performed the rotation test five times with no 
pain, weakness, fatigue, incoordination or endurance 
problems.  On extension, he reported some mild to moderate 
pain on the third test, but the veteran had only 5 degrees of 
extension to begin with; the Board notes that there can be 
little additional impact.  On lateral flexion, the veteran 
had mild to moderate pain and some mild weakness by the third 
repetition in each direction.  The pain began at about 20 
degrees.  On forward flexion, the veteran performed three 
repetitions before quitting due to pain and weakness and some 
endurance and fatiguing issues.  No incoordination was noted.  
On the third attempt the veteran reached only 55 degrees.

The veteran had another VA examination in April 2006.  The 
veteran had mild flattening of the lumbar spine.  He had mild 
spasm, mild guarding and tenderness and moderate pain with 
motion.  He had no atrophy or weakness.  The veteran had 
forward flexion to 70 degrees, with pain beginning at 40 
degrees.  The veteran had 5 degrees of extension, with pain 
throughout.  He had lateral flexion to 20 degrees 
bilaterally, with pain at 15 degrees bilaterally.  He had 
lateral rotation to 25 degrees bilaterally, with pain at 15 
degrees bilaterally.  The veteran had some additional loss of 
motion on repetitive use due to pain.  The veteran reported 
flare ups of pain when bending, twisting or lifting.  The 
examiner characterized the veteran's impairment as moderate 
decreased motion and stiffness and mild fatigue, weakness and 
spasm.  Ankylosis was not present.  The veteran had an 
antalgic gait.

An October 2006 vascular clinic evaluation notes that the 
veteran's gait was normal, with no abnormal spinal contour or 
atrophy.

In June 2007, the veteran was provided with an elastic back 
brace.  

The Board finds that the criteria for a rating in excess of 
20 percent have not been met under either the prior or 
current range of motion criteria.  The veteran has, at no 
time, had forward flexion limited to 30 degrees.  At most, 
the veteran manifests pain in forward flexion at 45 degrees, 
leaving half of the range of motion intact.  There is no 
indication of ankylosis.  The veteran's overall limitation of 
motion is part of the criteria for a 20 percent rating, which 
he already receives.  The Board recognizes that the veteran 
was provided with an elastic back brace in June 2007; 
however, there is no indication of significant change or 
progress of the disability.  Under both the prior DC 5292 and 
the current General Ratings Formula, DC 5243, the Board 
concludes that the criteria for a higher rating have not been 
met.  See 38 C.F.R. § 4.71a (2002, 2007).  

The Board has considered the remaining DCs for back 
disabilities.  The veteran does not, however, suffer from a 
vertebral fracture injury, cervical or thoracic disabilities 
or chronic muscle strain.  The Board concludes that the 
remaining DCs are inapplicable in this case.  See 38 C.F.R. 
§ 4.71a (2002, 2003, 2007).

Any associated objective neurologic abnormalities, including, 
but not limited to, bowel or bladder impairment, are 
separately evaluated under an appropriate Diagnostic Code.  
Id., at Note (1).  The RO has service connected the veteran's 
neurological complications separately, effective April 21, 
2006.  Neurological complications were also considered during 
discussion of the prior intervertebral disc syndrome ratings 
criteria.  There are no additional neurological symptoms.  
Further consideration is not warranted.

In the present case, it should also be noted that when 
evaluating disabilities of the musculoskeletal system, 38 
C.F.R. § 4.40 allows for consideration of functional loss due 
to pain and weakness causing additional disability beyond 
that reflected on range of motion measurements.  DeLuca v. 
Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 
provides that consideration also be given to weakened 
movement, excess fatigability and incoordination.  The Board 
has given such consideration, by using the range of motion 
measurements as limited to where pain began, rather than the 
full extent to which the veteran might move.  Even with this 
additional limitation, the veteran's symptoms did not reach 
the level needed for a higher rating.  The Board concludes 
that a further increase under DeLuca is not warranted.  

The Board has considered the possibility of staged ratings.  
Fenderson; Hart, both supra.  The Board, however, concludes 
that the criteria for a compensable rating have at no time 
been met.  Accordingly, staged ratings are inapplicable.  See 
id.  

As such, the Board finds that the preponderance of the 
evidence is against the veteran's spine rating claim.  
Consequently, the benefit-of-the-doubt rule does not apply, 
and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 
2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

b. Radiculopathy of the Legs

The veteran contends that he is entitled to an initial rating 
in excess of 10 percent for neuropathy of each leg.  For the 
reasons that follow, the Board concludes that increased 
ratings are not warranted.  

The veteran's bilateral peripheral neuropathy is rated under 
DC 8521.  Diagnostic Code 8521 provides for a 40 percent 
rating for complete paralysis of the external popliteal nerve 
(common peroneal) where there is foot drop and slight droop 
of first phalanges of all toes, cannot dorsiflex the foot, 
extension (dorsal flexion) of proximal phalanges of toes 
lost; abduction of foot lost, adduction weakened; anesthesia 
covers entire dorsum of foot and toes.  38 C.F.R. § 4.124a, 
Diagnostic Code 8521.  A 30 percent evaluation is warranted 
for severe incomplete paralysis.  Id.  A 20 percent 
evaluation is assigned where there is moderate incomplete 
paralysis and a 10 percent evaluation is warranted for mild 
incomplete paralysis.  Id.  

The term "incomplete paralysis" indicates impairment of 
function of a degree substantially less than the type of 
picture for complete paralysis given for each nerve, whether 
due to varied level of the nerve lesion or to partial 
regeneration.  When the involvement is wholly sensory, the 
rating should be for the mild, or, at most, the moderate 
degree.  38 C.F.R. § 4.124a, Note.

The Board finds that the veteran's peripheral neuropathy 
results in no more than "mild" symptoms.  While the veteran 
does have a diagnosis and complains of paresthesias, thus far 
the evidence shows that he does not suffer from functional 
loss as a result of peripheral neuropathy in either leg.

At his March 2004 VA examination, the veteran's sharp and 
dull sensation was intact in thighs, legs and feet.  Deep 
tendon reflexes were 2/4 at the knees.  The veteran denied 
radicular symptoms.  

At his April 2006 VA examination in association with his 
spine rating claim, the veteran reported paresthesias of the 
outer thigh.  He had 1+ reflexes at the knee and ankle 
levels.  The veteran also had impaired pinprick and light 
touch sensation in both lower extremities.  

The veteran had a comprehensive examination in March 2007 
which evaluated his peripheral neuropathy.  The veteran's 
muscle strength, bulk, tone and function were normal.  
Sensory function was normal to vibration, pain (pin prick), 
light touch and position sense.  Reflexes were 2+ at both the 
knee and ankle levels.  The veteran had normal gait and 
balance without abnormal movement, tics or tremors.  

Subsequent to the March 2007 evaluation, the veteran was seen 
for an April 2007 electromyelogram (EMG).  The EMG report 
indicates that the veteran had chronic neurogenic changes 
consistent with his previous radiculopathy.  Motor conduction 
and F-wave latency studies of the right peroneal and 
posterior tibial nerves were within normal limits.  Bilateral 
sural (sensory) nerve conduction studies were within normal 
limits.  

The veteran has been diagnosed with claudication of the lower 
extremities.  A May 2005 vascular evaluation found the 
claudication to be consistent with an ongoing peripheral 
vascular disease process, atherosclerosis.  This conclusion 
has been confirmed repeatedly.  As such, the veteran's 
claudication is not a part of the neurological complications 
of his service connected disorders and the Board will not 
consider it when rating his peripheral neuropathy.  The 
veteran has reported fatiguability and pain in his calves and 
feet when walking, but these problems have been attributed to 
his claudication, not his peripheral neuropathy.

In sum, the preponderance of the evidence shows that the 
veteran retains normal motor, reflex and sensory function.  
The veteran had signs of functional loss in April 2006, but 
this is the sole occurrence of the diminished reflex and 
sensation of record.  The remaining treatment records show 
normal functioning both prior to and after the April 2006 
examination.  As such, the Board finds that the veteran's 
symptoms are "mild" in degree at all times during the 
period on appeal.  The criteria for initial ratings in excess 
of 10 percent for peripheral neuropathy of either the left or 
right leg have not been met at any time.  See 38 C.F.R. 
§ 4.124a, DC 8521; see also Fenderson, supra.  

As such, the Board finds that the preponderance of the 
evidence is against the veteran's peripheral neuropathy 
claims.  Consequently, the benefit-of-the-doubt rule does not 
apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) 
(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



c. PTSD

The veteran's service-connected PTSD is evaluated as 50 
percent disabling under the General Rating Formula for Mental 
Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411.  Ratings 
are assigned according to the manifestation of particular 
symptoms.  However, the use of the term "such as" in 38 
C.F.R. § 4.130 demonstrates that the symptoms after that 
phrase are not intended to constitute an exhaustive list, but 
rather are to serve as examples of the type and degree of the 
symptoms, or their effects, that would justify a particular 
rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

Under the provisions for rating psychiatric disorders, a 50 
percent disability rating requires evidence of the following:

Occupational and social impairment with reduced 
reliability and productivity due to such symptoms as: 
flattened affect; circumstantial, circumlocutory, or 
stereotyped speech; panic attacks more than once a 
week; difficulty in understanding complex commands; 
impairment of short- and long-term memory (e.g., 
retention of only highly learned material, forgetting 
to complete tasks); impaired judgment; impaired 
abstract thinking; disturbances of motivation and 
mood; difficulty in establishing and maintaining 
effective work and social relationships.

The criteria for a 70 percent rating are:

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

The criteria for a 100 percent rating are:

Total occupational and social impairment, due to such 
symptoms as: gross impairment in thought processes or 
communication; persistent delusions or 
hallucinations; grossly inappropriate behavior; 
persistent danger of hurting self or others; 
intermittent inability to perform activities of daily 
living (including maintenance of minimal personal 
hygiene); disorientation to time or place; memory 
loss for names of close relatives, own occupation, or 
own name.

38 C.F.R. § 4.130, Diagnostic Code 9411.  

After a careful review of the record and for reasons and 
bases expressed immediately below, the Board finds that the 
veteran's demonstrated PTSD symptomatology warrants a 
continuation of the currently assigned 50 percent rating. The 
criteria for a 50 percent disability rating generally 
contemplate a moderate severity of psychiatric symptoms, and, 
for the reasons given below, this is clearly the veteran's 
situation. 

The Board notes that the evidence considered in determining 
the level of impairment under 38 C.F.R. § 4.130 is not 
restricted to the symptoms provided in the diagnostic code.  
Instead, the VA must consider all symptoms of a claimant's 
condition that affect the level of occupational and social 
impairment, including (if applicable) those identified in the 
DSM-IV (American Psychiatric Association: Diagnostic and 
Statistical Manual of Mental Disorders (4th ed. 1994)).  See 
Mauerhan, supra.  Within the DSM-IV, Global Assessment 
Functioning (GAF) scores are a scale reflecting the 
"psychological, social, and occupational functioning on a 
hypothetical continuum of mental health-illness."  See 
Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also 
Richard v. Brown, 9 Vet. App. 266, 267 (1996).  While not 
determinative, a GAF score is highly probative as it relates 
directly to the veteran's level of impairment of social and 
industrial adaptability, as contemplated by the rating 
criteria for mental disorders.  See Massey v. Brown, 7 Vet. 
App. 204, 207 (1994).  

According to DSM-IV, a score of 51-60 represents "[m]oderate 
symptoms (e.g., flat affect and circumstantial speech, 
occasional panic attacks) OR moderate difficulty in social, 
occupational, or school functioning, (e.g., few friends, 
conflicts with peers or co-workers)."  Id.  At private 
psychiatric evaluations in February and April 2005, the 
veteran received a GAF score of 55.  At the veteran's 
December 2005 VA examination, he received a 58.  The scores, 
then, point to moderate symptoms.  

At his February 2005 evaluation, the veteran was oriented to 
person, place and time.  Recent and remote memory appeared 
within average limits.  The veteran was calm and open in his 
responses.  He had a flat affect and dysphoric mood.  The 
veteran denied any suicidal ideation.  The veteran indicated 
that he had one close friend and described himself as a 
loner.  He reported an aversion to crowds.  The veteran 
reported flashbacks, night sweats and wishes and dreams about 
staying in Vietnam.  He indicated some history of violence 
and depression.  

At his April 2005 evaluation, the veteran's symptoms were 
described more fully.  The veteran indicated that loud noises 
set him on edge and trigger flashbacks to Vietnam.  The 
veteran also reported that seeing Vietnamese people caused 
him to become highly suspicious and that he has a problem 
trusting people generally.  The veteran reported nightmares 
once a month.  The veteran indicated that he had committed 
assault and burglary and spent several years in prison.  He 
stated that his legal problems ended in 1983 when he quit 
using alcohol.  During the mental status examination, the 
veteran was cooperative throughout the interview.  Affect was 
dysthymic and somewhat restricted.  Eye contact was 
intermittent.  Speech was of normal rate, volume, and tone, 
although monotonous.  Content was generally logical and goal-
directed other than stating that he felt paranoid.  He denied 
any active psychotic process and there was no evidence of 
such during the interview.  He denied any hallucinations, 
ideas of reference, thought broadcasting, delusions of 
grandeur or persecutory ideation.  He denied any homicidal or 
suicidal ideation currently.  He did report some homicidal 
ideation towards people who anger him.  He also related 
persistent symptoms of increased arousal including difficulty 
falling asleep, irritability, difficulty concentrating and an 
exaggerated startle response.  He also appeared to have 
hypervigilance.  The veteran reported some suicidal ideation 
approximately two years before the examination.  The 
veteran's social functioning showed significant difficulties.  
The veteran spends time with his brothers and has no friends 
apart from them.  The veteran reported difficulty keeping 
jobs.  His last employment was at a gas station where his 
girlfriend was his supervisor.  

At the veteran's December 2005 VA examination, he reported 
symptoms consistent with the foregoing.  The veteran was 
oriented to person, time and place.  His affect was 
constricted with some dysphoric affect.  The veteran had no 
inappropriate behavior.  The veteran had good impulse control 
without episodes of violence.  There were no suicidal or 
homicidal thoughts present. He had the ability to maintain 
minimum personal hygiene and had no reported problems with 
the activities of daily living.  His memory was intact.  The 
veteran's avoidant symptoms were the most pervasive, with the 
veteran only interacting with his brothers and girlfriend of 
eleven years.  The examiner indicated that the effects of 
PTSD ranging from mild impact on efficiency and productivity 
to moderate in reliability and relationships with others.  

Since the December 2005 VA examination, the veteran has not 
had further treatment or evaluation for his PTSD.  The 
veteran did have a psychiatric examination in connection with 
the sleep disorder claim discussed above; however, the report 
specifically states that the veteran's PTSD was not evaluated 
at that time.  The only record pertaining to PTSD is a June 
2007 VA clinic visit note.  At the time, the veteran had a 
negative PTSD and depression screening test.  

With consideration of the entire record, the Board finds that 
the manifestations of the veteran's service-connected PTSD 
warrant no more than a 50 percent evaluation.  The evidence 
shows that the veteran has difficulty in adapting to 
stressful circumstances.  Additionally, avoidant behavior has 
been reported; however, it has not been shown to interfere 
with routine activities.  Suicidal ideation, impaired impulse 
control, spatial disorientation, neglect of personal 
appearance and hygiene, and intermittent illogical, obscure, 
or irrelevant speech has not been shown by the record.  
Nightmares and depression are intermittent and do not affect 
the veteran's ability to function independently, 
appropriately, and effectively.  Social withdrawal has been 
shown by the evidence, as has difficulty in establishing 
social relationships; however, the veteran has been able to 
maintain good relationships with his brothers and girlfriend.  
Some past history of violence and suicidal ideation were 
reported, but these occurred several years prior to the 
period on appeal and have not been replicated during the 
appeal.  The Board finds that the veteran's PTSD symptoms are 
no more than "moderate" and that he does not have any of 
the symptoms of the criteria for a 70 or 100 percent rating.  
The Board concludes that the criteria for an initial rating 
in excess of 50 percent for PTSD have not been met at any 
time during the period on appeal.  See 38 C.F.R. § 4.130, DC 
9411.

As such, the Board finds that the preponderance of the 
evidence is against the veteran's PTSD claim.  Consequently, 
the benefit-of-the-doubt rule does not apply, and the claim 
must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert 
v. Derwinski, 1 Vet. App. 49, 55 (1990).

d. Left Great Toenail Removal

The veteran currently receives a noncompensable rating for 
loss of the nail of his left great toe as a result of his 
onychomyocosis and tinea pedis of the left foot.  He contends 
that he is entitled to a compensable rating.  For the reasons 
that follow, the Board concludes that a compensable rating is 
not warranted.

The ratings schedule does not address loss of a toenail.  See 
38 C.F.R. § 4.71a (2007).  The RO assigned the veteran a 
noncompensable rating under Diagnostic Code (DC) 5299-5284.  
The use of a hyphenated DC indicates an analogous rating 
using the criteria of the second part.  See 38 C.F.R. § 4.27 
(2007).  In this case, the RO determined that the veteran's 
disability did not fit the criteria of the DCs which rate 
specific foot disabilities and applied the criteria of DC 
5284, which rates other injuries of the foot.  

Diagnostic Code 5284 assigns a 10 percent evaluation for a 
moderate foot injury; a 20 percent evaluation for a 
moderately severe foot injury; and a 30 percent evaluation 
for a severe foot injury.  38 C.F.R. § 4.71a.  The Board 
notes that words such as "severe" and "moderate" are not 
defined in the Rating Schedule.  Rather than applying a 
mechanical formula, VA must evaluate all evidence, to the end 
that decisions will be equitable and just.  38 C.F.R. § 4.6 
(2007).  Although the use of similar terminology by medical 
professionals should be considered, is not dispositive of an 
issue.  Instead, all evidence must be evaluated in arriving 
at a decision regarding a request for an increased disability 
rating.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 
4.6 (2007).

The Board notes that DC 5284 does not contain a 
noncompensable rating.  See 38 C.F.R. § 4.71a.  In the event 
that a DC does not contain a noncompensable rating, one may 
still be assigned if the disability does not reach the 
minimum compensable level.  See 38 C.F.R. § 4.31 (2007).  In 
sum, the RO applied DC 5284 and concluded that the veteran's 
toenail loss disability was not manifested by at least 
"moderate" symptoms.  

At a November 2004 VA examination, the veteran's left great 
toe was without the nail.  The left great toe was only 
minimally tender.  There were no skin breakdowns and no 
drainage.  The removal site was well healed in both cuticle 
and paronychial areas.  He had full range of motion of the 
great toe.  The veteran reported trouble running and jumping, 
but also indicated that he had those problems prior to the 
toenail removal.  

At his March 2007 examination, the left great toenail was 
removed with no signs of infection or complication.  The 
veteran had a slight remnant of the left great toenail, that 
may be the nail starting to grow back.  The veteran had no 
pain in his feet and had good coarse sensation.

The Board finds that the veteran's loss of the toenail of the 
left great toe resulting in a disability which is no more 
than "mild."  The veteran has minimal, if any, functional 
impairment as a result of the loss of the left great toenail, 
which may, in fact, be returning.  The veteran's disability 
has not been more than "mild" at any point during the 
period on appeal.  As such, the Board concludes that a 
compensable rating is not warranted under DC 5284 at any 
time.  See 38 C.F.R. § 4.71a, supra; Fenderson, supra.  

The Board has considered weather the veteran's disability 
would warrant a higher evaluation under other Diagnostic 
Codes pertaining to the foot.  However, the veteran does not 
have acquired flat foot, bilateral weak foot, claw foot, 
anterior metatarsalgia, hallus valgus, hallux rigidus, hammer 
toe, or malunion or nonunion of the tarsal or metatarsal 
bones to warrant an evaluation under Diagnostic Codes 5276-
5283.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283 
(2007).

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

e. Onychomyocosis and Tinea Pedis

The veteran contends that he is entitled to a rating in 
excess of 10 percent for his onychomyocosis and tinea pedis 
of the bilateral feet.  His representative argues in 
particular that separate 10 percent ratings should be 
assigned for each foot.  For the reasons that follow, the 
Board concludes that a rating in excess of 10 percent, 
including separate 10 percent ratings for each foot, is not 
warranted.  

The veteran's disability is rated under Diagnostic Code 7813, 
addressing dermatophytosis.  Dermatophytosis, including tinea 
pedis, is to be rated as disfigurement of the head, face, or 
neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), 
or dermatitis (DC 7806), depending upon the predominant 
disability.  38 C.F.R. § 4.118, DC 7813 (2007).

Under DC 7813, skin disability is rated depending upon the 
predominant disability, and where, as here, it is 
onychomycosis, it will be rated as dermatitis or eczema under 
DC 7806.  38 C.F.R. § 4.118 (2007).

DC 7806 provides that for dermatitis a 10 percent rating is 
assigned for at least 5 percent, but less than 20 percent, of 
the entire body, or at least 5 percent, but less than 20 
percent, of exposed areas affected or intermittent systemic 
therapy such as corticosteroids or other immunosuppressive 
drugs required for a total duration of less than six weeks 
during the past 12-month period.  A 30 percent evaluation 
will be assigned where 20 to 40 percent of the entire body or 
20 to 40 percent of exposed area is affected, or; systemic 
therapy such as corticosteroids or other immunosuppressive 
drugs required for a total duration of six weeks or more, but 
not constantly, during the past 12-month period.  A 60 
percent evaluation will be assigned for dermatitis that 
covers more than 40 percent of the entire body or more than 
40 percent of exposed areas affected, or with constant or 
near constant systemic therapy such as corticosteroids or 
other immunosuppressive drugs required during the past 12-
month period.  38 C.F.R. § 4.118 (2007).  

In reviewing this DC, the Board finds the veteran's 
representative's argument to be without merit.  A separate 
rating for each foot is not warranted because the DC is 
premised on a compilation of the affected areas, not a 
division of them.  See id.  

At a minimum, to be entitled to an increased rating, the 
evidence must show that 20 to 40 percent of the entire body 
or 20 to 40 percent of exposed area is affected, or; systemic 
therapy such as corticosteroids or other immunosuppressive 
drugs required for a total duration of six weeks or more, but 
not constantly, during the past 12-month period.  See id.  

At a November 2004 VA examination, the veteran's 
onychomyocosis and tinea pedis were evaluated.  He had 
bilateral mild erythematous lesions without active vesicles 
or pustules.  The tip of the right great toe had been 
amputated.  The left great toe was without the nail.  The 
remaining left toes did not demonstrate evidence of fungal 
infections or onychomyocosis.  The left great toe was only 
minimally tender.  There were no skin breakdowns and no 
drainage.  The removal site was well healed in both cuticle 
and paronychial areas.  He had full range of motion of the 
great toe.  The veteran reported trouble running and jumping, 
but also indicated that he had those problems prior to the 
toenail removal.  

At his March 2007 examination, the veteran's feet were smooth 
to the touch, without roughness, flakes or signs of current 
tinea pedis.  The veteran had yellowed, thickened toenails 
bilaterally.  The left great toenail was removed with no 
signs of infection or complication.  The veteran had a slight 
remnant of the left great toenail, that may be the nail 
starting to grow back.  The veteran had no pain in his feet 
and had good coarse sensation.

The veteran's remaining, and substantial, VA treatment 
records do not show additional treatment for his feet.  

The Board finds that the evidence shows that the veteran has 
not met the criteria for an increased rating at any time 
during the period on appeal.  The veteran's tinea pedis and 
onychomyocosis are confined to an area which is not exposed.  
While a calculation of affected area of the entire body was 
not performed, the Board notes that the veteran's disability 
is confined to the feet which could not be equivalent to 20 
percent of the veteran's entire body.  The Board has reviewed 
the veteran's treatment records and found no references to 
corticosteroid or immunosuppressive drug treatment at any 
time.  As such, the Board finds that the criteria for a 
rating in excess of 10 percent for onychomyocosis and tinea 
pedis are not met.  See 38 C.F.R. § 4.118, DC 7806, 7813.

As such, the Board finds that the preponderance of the 
evidence is against the veteran's claim.  Consequently, the 
benefit-of-the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for residuals of a right 
eye injury is denied.

Entitlement to service connection for a sleep disorder 
claimed as secondary to service-connected back disability is 
denied.

Entitlement to an initial rating in excess of 20 percent for 
degenerative disc disease of the lumbar spine with stenosis 
is denied.

Entitlement to an initial rating in excess of 10 percent for 
radiculopathy of the right leg is denied.

Entitlement to an initial a rating in excess of 10 percent 
for radiculopathy of the left leg is denied.

Entitlement to an initial rating in excess of 50 percent for 
PTSD is denied.

Entitlement to an initial compensable rating for loss of the 
left great toenail is denied.

Entitlement to a rating in excess of 10 percent for 
onychomyocosis and tinea pedis of the feet is denied.


REMAND

The veteran's claim for an increased rating for COPD must be 
remanded.  The veteran initially brought a claim for an 
increase in 2006.  The RO reduced the veteran's disability 
rating from 30 to 10 percent in an April 2007 rating 
decision, effective September 1, 2006.  The RO concluded, 
apparently, that because the reduction did not change the 
veteran's combined disability rating of 80 percent, this 
action was permissible.  

The veteran's representative immediately contested this 
action in the Notice of Disagreement.  The RO disregarded his 
contentions and proceeded to evaluate the merits of this case 
solely on the basis of a claim for increased rating in excess 
of 10 percent.  

Reductions are governed by 38 C.F.R. § 3.105(e), which 
describes procedural hurdles which must be met prior to a 
rating reduction.  The U.S. Court of Appeals for Veterans 
Claims (Court) has consistently held that, when a veteran's 
disability rating is reduced by a RO without following the 
applicable regulations, the reduction is void ab initio.  See 
Greyzck v. West, 12 Vet. App. 288, 292 (1999).  The Court's 
caselaw provides that where a rating reduction was made 
without observance of law, although a remand for compliance 
with that law would normally be an adequate remedy, in a 
rating reduction case, the erroneous reduction must be 
vacated and the prior rating restored.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 595 (1991).

The application of this body of caselaw has been called into 
question by the recent case of Stelzel v. Mansfield, 508 F.3d 
1345 (Fed. Cir. 2007).  The case of Stelzel concerned a case 
where a reduction in the specific rating of a disability did 
not reduce the combined rating and compensation received by a 
veteran.  Id.  The opinion decided that no clear and 
unmistakable error has been committed in such a reduction, 
finding that this act neither the predecessor statute to 
38 U.S.C.A. § 5112(b)(6) nor its implementing regulation, the 
predecessor to 38 C.F.R. § 3.105(e) require adherence to the 
established procedures if the veteran's compensation was not 
changed.  Id.  In light of Stelzel, the Board concludes that 
an automatic resumption of the 30 percent rating for COPD is 
not warranted in this case.  

The Board notes, however, that Stelzel applies to claims of 
CUE, not to cases without final decisions.  Active cases for 
increased ratings and reductions must also satisfy the 
requirements of the Veterans Claims Assistance Act (VCAA).  
In this case, the duty to notify requirements for an 
increased-compensation claim, section 5103(a) compliant 
notice must meet the four part test established in Vazquez-
Flores, discussed, above.  Here, the VCAA notice provided for 
the veteran's increased rating claim did not satisfy the 
second requirement set out above as they relate to increases 
or any of the elements as they pertain to reductions.  The 
Board, therefore, remands for VCAA compliant notice as to the 
veteran's underlying increased rating claim.  Because the RO 
also reduced the veteran's rating, the Board must remand so 
that notice of the procedures and especially the evidentiary 
burden in reduction can be provided to the veteran.  

In cases where a rating has been in effect for 5 years or 
more, though material improvement in the physical or mental 
condition is clearly reflected, the rating agency must make 
reasonably certain that the improvement will be maintained 
under the conditions of ordinary life.  Kitchens v. Brown, 7 
Vet. App. 320, 324 (1995).  The 5-year period is calculated 
from the effective date of the rating to the effective date 
of the reduction.  Brown v. Brown, 5 Vet. App. 413, 419 
(1995).  The Board notes that the veteran's COPD rating had 
been in effect for more than five years.

Under 38 C.F.R. § 3.344, the RO must find the following: (1) 
based on a review of the entire record, the examination 
forming the basis for the reduction is full and complete, and 
at least as full and complete as the examination upon which 
the rating was originally based; (2) the record clearly 
reflects a finding of material improvement; and (3) it is 
reasonably certain that the material improvement found will 
be maintained under the ordinary conditions of life.

Thus, for disabilities that have continued for five years or 
more, the issue is whether material improvement in a 
veteran's disability was demonstrated in order to warrant a 
reduction in such compensation benefits.  See Kitchens v. 
Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 
413 (1993).  In such cases, examinations less full and 
complete than those on which payments were authorized will 
not be used as the basis for reductions.  38 C.F.R. § 
3.344(a).  The Board remands to provide notice of the 
reductions requirements of 38 C.F.R. §§ 3.105(e) and 
3.344(a).  

Since resolution of the TDIU claim is dependent, at least in 
part, on the outcome of the claim for an increased rating for 
COPD, the Board will defer consideration of that claim at 
this time.  



Accordingly, the case is REMANDED for the following action:

1.  Provide to the veteran all 
notification action required by the 
Veterans Claims Assistance Act of 2000, 
Pub. L. No. 106-475, 114 Stat. 2096 
(2000), with respect to the increased 
rating for COPD claim to include the 
propriety of the April 2007 reduction in 
rating.  The notice should conform to the 
requirements of Vazquez-Flores, including 
notice of 38 C.F.R. §§ 3.105(e) and 
3.344(a), as described above.  Any notice 
given, or action taken thereafter, must 
comply with current, controlling legal 
guidance.

2.  Then, the RO should readjudicate the 
claim on the merits.  If the benefits 
sought are not granted, the veteran and 
his representative should be furnished a 
SSOC and afforded a reasonable opportunity 
to respond before the record is returned 
to the Board for further review.

The veteran 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).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs