Citation Nr: 1018243	
Decision Date: 05/17/10    Archive Date: 06/04/10

DOCKET NO.  08-13 075	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a left shoulder 
disability.

2.  Entitlement to service connection for a right shoulder 
disability.

3.  Entitlement to service connection for ulcerative colitis.

4.  Entitlement to service connection for a left knee 
disability.

5.  Entitlement to service connection for a right hip 
disability.

6.  Entitlement to service connection for a foot disability.

7.  Entitlement to an increased initial disability rating for 
right patellofemoral pain syndrome, rated as 0 percent 
disabling for the period from September 4, 2005, to May 28, 
2009, and as 20 percent disabling since May 29, 2009.

8.  Entitlement to an increased initial disability rating for 
psoriasis, rated as 0 percent disabling for the period from 
September 4, 2005, to May 28, 2009, and as 10 percent 
disabling since May 29, 2009.

9.  Entitlement to an initial compensable disability rating 
for gastroesophageal reflux disease (GERD).

10.  Entitlement to an initial compensable disability rating 
for residuals of a left hip injury. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2001 to 
September 2005.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an April 2007 rating decision of the 
Philadelphia, Pennsylvania regional office (RO) of the 
Department of Veterans Affairs (VA).   
In January 2010, the Veteran, accompanied by his authorized 
representative, appeared at a videoconference hearing held 
before the below-signed Acting Veterans Law Judge.  A 
transcript of that hearing has been associated with the 
claims file.

Subsequent to the September 2009 supplemental statement of 
the case (SSOC), the Veteran submitted additional evidence to 
the Board.  However, as he, through his authorized 
representative, submitted a waiver of initial consideration 
by the RO in January 2010, the Board will consider the 
additional evidence in conjunction with this appeal.  See 38 
C.F.R. § 20.1304(c).

The issues of entitlement to service connection for an 
acquired psychiatric disorder, to include depression and 
posttraumatic stress disorder (PTSD), as well as entitlement 
to a total disability rating based on individual 
unemployability due to service-connected disabilities (TDIU), 
have been raised by the record, but have not been adjudicated 
by the Agency of Original Jurisdiction (AOJ).  Therefore, the 
Board does not have jurisdiction over them, and they are 
REFERRED to the AOJ for appropriate action.  

The issues of entitlement to service connection for a right 
hip disability, left patellofemoral pain syndrome, and a foot 
disability, and of entitlement to higher evaluations for 
right patellofemoral pain syndrome, psoriasis, GERD, and 
residuals of a left hip injury are addressed in the REMAND 
portion of the decision below and are REMANDED to the RO via 
the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran has a current diagnosis of left shoulder 
tendonitis.

2.  The Veteran received in-service treatment for left 
shoulder pain while in service.  His left shoulder has 
continued to cause pain and discomfort since the original in-
service injury.

3.  The record does not reflect that the Veteran injured his 
right shoulder during service or that he has any currently 
diagnosed right shoulder disability.

4.  The Veteran has a current diagnosis of ulcerative 
colitis.

5.  The Veteran experienced symptoms of ulcerative colitis 
while in service, and has continued to experience symptoms 
related to ulcerative colitis since his separation from 
service.


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection 
for a left shoulder disability are met.  38 U.S.C.A §§ 1131, 
5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 
(2009).

2.  The Veteran does not have a right shoulder disability due 
to injury incurred in or aggravated by active service.  38 
U.S.C.A. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (West 
2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2009).  

3.  The criteria for the establishment of service connection 
for ulcerative colitis are met.  38 U.S.C.A §§ 1131, 5107 
(West 2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Board has considered the Veterans Claims Assistance Act 
of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126 (West 2002 and Supp. 2009).  The regulations 
implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2009).  VA has a duty to notify 
the claimant of any information and evidence needed to 
substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 
5103. See also Quartuccio v. Principi, 16 Vet. App. 183 
(2002).

After having carefully reviewed the record on appeal, the 
Board has concluded that the notice requirements of VCAA have 
been satisfied with respect to the issues decided herein.

The notice and assistance provisions of VCAA should be 
provided to a claimant prior to any adjudication of the 
claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The 
RO sent the Veteran a letter in October 2006, prior to the 
initial adjudication of his claims, and a letter in May 2009 
which informed him of the requirements needed to establish 
entitlement to service connection.  In accordance with the 
requirements of VCAA, the letters informed the Veteran what 
evidence and information he was responsible for obtaining and 
the evidence that was considered VA's responsibility to 
obtain.  The letters also informed the Veteran that 
appropriate disability ratings and effective dates would be 
assigned if any of his claim were granted.  
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
Accordingly, the Board finds that VA has satisfied its duties 
to notify the Veteran.

VA has a duty to assist the claimant in obtaining evidence 
necessary to substantiate a claim.  Here, after the Veteran 
filed his claim, VA and private treatment records were 
associated with the record.  VCAA also requires VA to provide 
a medical examination when such an examination is necessary 
to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 
C.F.R. § 3.159 (2009).  The Veteran was afforded examinations 
of his left shoulder in September 2005 and November 2006; 
regarding ulcerative colitis, a medical opinion was provided 
in September 2005 and gastroenterological examinations were 
conducted in November 2006, February 2007, and May 2009.

While the Veteran was not afforded a VA examination for his 
right shoulder, in this circumstance, there is no duty on the 
part of VA to provide a medical examination, because as in 
Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the 
Veteran has been advised of the need to submit competent 
medical evidence indicating that he has the disability in 
question, and further substantiating evidence suggestive of a 
linkage between his active service and the current disorders, 
if shown.  The Veteran has not done so, and no evidence thus 
supportive has otherwise been obtained.  Although the Veteran 
contends that he has a current right shoulder disability as 
the result of service, the record in its whole, as in Wells, 
after due notification, advisement, and assistance to the 
Veteran under the VCAA, does not contain any other evidence 
of an in-service injury to the right shoulder or of a current 
right shoulder disability.

Given these matters of record, there is no competent evidence 
that, in regard to the right shoulder, "the disability or 
symptoms may be associated with the claimant's active 
military . . . service." 38 U.S.C.A. § 5103A(d); cf. Charles 
v. Principi, 16 Vet. App. 370 (2002) (holding that under 38 
U.S.C.A. § 5103A(d)(2), VA was to provide a medical 
examination as "necessary to make a decision on a claim, 
where the evidence of record, taking into consideration all 
information and lay or medical evidence, [including 
statements of the claimant]," and where, the claimant had 
been diagnosed to have tinnitus, and had proffered competent 
lay evidence that he had had continuous symptoms of the 
disorder [i.e., ringing in the ears] since his discharge.).

Neither the Veteran nor his representative have informed VA 
of any outstanding medical evidence pertinent to the issues 
on appeal.  In sum, the record reflects that the facts 
pertinent to these claims have been properly developed and 
that no further development is required to comply with the 
provisions of the VCAA or the implementing regulations.  That 
is to say, it is "difficult to discern what additional 
guidance VA could [provide] to the appellant regarding what 
further evidence he should submit to substantiate his claim." 
Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). 

The Veteran has been given ample opportunity to present 
evidence and argument in support of his claims, to include a 
presentation before an Acting Veterans Law Judge.  As the 
record includes sufficient competent evidence to decide these 
claims, see 38 C.F.R. § 3.159(c)(4), no further action is 
necessary to assist the Veteran.  The Board additionally 
finds that general due process considerations have been 
complied with by VA. See 38 C.F.R. § 3.103 (2009).  
Accordingly, the Board will adjudicate the claims on the 
merits.

Service Connection

Service connection may be granted for any current disability 
that is the result of a disease contracted or an injury 
sustained while on active duty service.  38 U.S.C.A. § 1110 
(West 2002 & Supp. 2008); 38 C.F.R. § 3.303(a) (2009).  
Service connection may also be granted for a disease 
diagnosed after discharge, where all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service. 38 C.F.R. § 3.303(d) (2009).

Establishing service connection generally requires (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 present disability.  Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12  Vet. 
App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Demonstration of continuity of symptomatology is an 
alternative method of establishing the second and third 
Shedden/Caluza element under 38 C.F.R. § 3.303(b).  Barr v. 
Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 
Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 
Vet. App. 296, 302 (1999).  

Continuity of symptomatology may be established if a claimant 
can demonstrate (1) that a condition was "noted" during 
service; (2) evidence of post-service continuity of the same 
symptomatology; and (3) medical or, in certain circumstances, 
lay evidence of a nexus between the present disability and 
the post-service symptomatology.  Savage, 10 Vet. App. at 
495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-
service incurrence sufficient in some circumstances for 
purposes of establishing service connection); 38 C.F.R. § 
3.303(b).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires 
that VA give "due consideration" to "all pertinent medical 
and lay evidence" in evaluating a claim for disability or 
death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. 
Cir. 2009).  

"Lay evidence can be competent and sufficient to establish a 
diagnosis of a condition when (1) a layperson is competent to 
identify the medical condition, (2) the layperson is 
reporting a contemporaneous medical diagnosis, or (3) lay 
testimony describing symptoms at the time supports a later 
diagnosis by a medical professional." Jandreau v. Nicholson, 
492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. 
Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board 
cannot determine that lay evidence lacks credibility merely 
because it is unaccompanied by contemporaneous medical 
evidence").

The benefit of the doubt rule provides that a veteran will 
prevail in a case where the positive evidence is in a 
relative balance with the negative evidence.  Therefore, a 
veteran prevails in a claim when (1) the weight of the 
evidence supports the claim or (2) when the evidence is in 
equipoise.  It is only when the weight of the evidence is 
against a veteran's claim that the claim must be denied.  38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 
1 Vet. App. 49 (1990).

A.  Left Shoulder

Having carefully considered the Veteran's contentions in 
light of the evidence of record and the applicable law, the 
Board finds that the weight of the evidence is in approximate 
balance and the claim for service connection for a left 
shoulder disability will be granted on this basis.  38 
U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518 (1996); 
Brown v. Brown, 5 Vet. App. 413 (1993) (Under the "benefit-
of-the-doubt" rule, where there exists "an approximate 
balance of positive and negative evidence regarding the 
merits of an issue material to the determination of the 
matter," the claimant shall prevail upon the issue).

The Veteran's service treatment records reflect that no 
shoulder problems were observed during an October 2000 
enlistment examination.  An undated in-service physical 
therapy note reflects that the Veteran received steroid 
injections in his left shoulder.  He reported at the time of 
his separation from service, in June 2005, that he intended 
to seek VA compensation for a left shoulder disability.

In September 2005, the Veteran underwent VA examination of 
his left shoulder.  The examiner noted that the Veteran 
reported onset of left shoulder problems in August 2004.  The 
Veteran's range of motion in the left shoulder was measured 
as follows:  125 degrees, with pain, of forward flexion; 103 
degrees with pain of abduction; external rotation of 52 
degrees; and internal rotation of 30 degrees with pain.  
There was decreased range of motion after repetitive action 
due to pain and fatigue.  Although no swelling, atrophy, 
weakness, or redness was noted, the examiner did note 
tenderness over the anterior portion of the shoulder.  No 
diagnosis was provided.

In November 2006, the Veteran underwent an additional VA 
examination of his left shoulder.  His left shoulder flexion 
was measured at 125 degrees without pain, but his internal 
rotation was measured at 25 to 55 degrees with pain beginning 
at 30 degrees and demonstrating mild pain and loss of 
endurance after repetition.  He was diagnosed with tendonitis 
of the left shoulder.

The Veteran testified in January 2010 that he requires pain 
medication for his left shoulder and lacks weight-bearing and 
holding abilities on that side.  He reported that his 
shoulder hurts during any kind of activity.  The Veteran also 
testified that he experienced continuity of symptomatology in 
the left shoulder since his marine combat training.  The 
below-signed Acting Veteran's Law Judge found the Veteran's 
January 2010 testimony credible, (presiding officials are 
owed deference as to determinations of witness credibility, 
see Jackson v. Veterans Administration, 768 F.2d 1325, 1331 
(1985) and Pensaquitos Village Inc. v. National Labor 
Relations Board, 565 F.2d 1074, 1078 (1977)), and the Board 
notes that laymen such as the Veteran can attest to their in-
service experiences and current symptoms.  See Bostain v. 
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).

There can be no doubt that further medical inquiry could be 
undertaken with a view towards development of the claim.  
However, under the "benefit-of-the-doubt" rule, where there 
exists "an approximate balance of positive and negative 
evidence regarding the merits of an issue material to the 
determination of the matter," the Veteran shall prevail upon 
the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see 
also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).

The mandate to accord the benefit of the doubt is triggered 
when the evidence has reached such a stage of balance.  In 
this matter, the Board is of the opinion that this point has 
been attained.  Because a state of relative equipoise has 
been reached in this case, the benefit of the doubt rule will 
therefore be applied.  See Alemany v. Brown, 9 Vet. App. 518, 
519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). 

Although the Veteran has not provided medical evidence of 
continuity of symptomatology since the November 2006, the 
Board observes that, after a claimant is diagnosed with a 
disability, even if the severity of the disability lessens 
(including to the extent that it no longer impairs the 
claimant), a grant of service connection may be nonetheless 
appropriate if it is otherwise found to be linked by 
competent evidence or applicable presumption to some incident 
of military service.  Ferenc v. Nicholson, 20 Vet.App. 58 
(2006) (discussing the distinction in the terms 
"compensation," "rating," and "service connection" as, 
although related, each having a distinct meaning as specified 
by Congress).  The question of severity is one of rating, not 
of service connection.  Id.

The determinative question in this matter is whether there is 
a nexus between the Veteran's current left shoulder 
disability and an incident of service.  The record reflects 
competent, persuasive evidence of such a nexus, including 
records of in-service treatment, post-service diagnosis, and 
the Veteran's lay statements of continuity of symptomatology.  
See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As 
such, the Board finds that, applying the benefit of the doubt 
rule, the claim must be granted.  



B.  Right Shoulder

The Veteran contends that he is entitled to service 
connection for a right shoulder disability.  However, as the 
criteria for entitlement to service connection for a right 
shoulder disability are not met, the claim for service 
connection must be denied.  

While the Veteran's service treatment records clearly 
demonstrate that he was treated for left shoulder problems 
during service, they do not show that he complained of or 
received treatment for the right shoulder.  In January 2005, 
the Veteran reported complaints of right scapula muscle pain 
radiating to his neck; he was diagnosed with a muscle strain.  
In June 2005, he was diagnosed with bicep tendonitis.  The 
Veteran did not report any right shoulder problems at the 
time of separation from service. 

Similarly, post-service treatment records do not show that he 
has a current diagnosis of a right shoulder disability that 
can be causally linked to his period of active service.  

In September 2006, the Veteran wrote that he was seeking to 
"establish service connection for... injuries to [his] right 
and left shoulders."  In January 2010 the Veteran testified 
that he "continuously complain[s]" about his right shoulder 
hurting and he has "never sought treatment other than here 
at the medical facility."  However, VA treatment records 
dated up to August 2009 do not reflect any treatment for, or 
complaints of, a right shoulder condition.

The Board has considered the Veteran's statements asserting a 
relationship between his claimed right shoulder disability 
and his active service.  

In rendering a decision on appeal, the Board must analyze the 
credibility and probative value of the evidence, account for 
the evidence which it finds to be persuasive or unpersuasive, 
and provide the reasons for its rejection of any material 
evidence favorable to the claimant.  Gabrielson v. Brown, 7 
Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  

Competency of evidence differs from weight and credibility.  
The former is a legal concept determining whether testimony 
may be heard and considered by the trier of fact, while the 
later is a factual determination going to the probative value 
of the evidence to be made after the evidence has been 
admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. 
Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 
Vet. App. 24 (1991) (although interest may affect the 
credibility of testimony, it does not affect competency to 
testify).

The Veteran is competent to report symptoms because this 
requires only personal knowledge, not medical expertise, as 
it comes to him through his senses.  Layno v. Brown, 6 Vet. 
App. 465 (1994).  As a lay person, however, the Veteran is 
not competent to offer an opinion on medical diagnosis or 
causation, and the Board may not accept unsupported lay 
speculation with regard to medical issues.  Moray v. Brown, 5 
Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 
(1992).

The Veteran's statements may be competent to support a claim 
for service connection where the events or the presence of 
disability, or symptoms of a disability are subject to lay 
observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 
3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 
2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The 
Veteran can report experiencing problems with his right 
shoulder.  However, the Veteran does not have the medical 
expertise to discern the nature of any symptoms related to 
his right shoulder nor does he have the medical expertise to 
provide an opinion regarding the etiology.  In sum, the issue 
does not involve a simple diagnosis.  

Further, although the Veteran has stated that he experiences 
right shoulder pain, he is not diagnosed, and has not 
reported being diagnosed (see January 2010 hearing 
testimony), as having any distinct right shoulder disability, 
and pain alone does not, in and of itself, constitute a 
disability for which service connection may be granted.  See 
Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal 
dismissed in part, and vacated and remanded in part sub nom. 
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); 
Evans v. West, 12 Vet. App. 22, 31-32 (1998).  

Congress has specifically limited entitlement to service-
connected benefits to cases where there is a current 
disability.  In the absence of proof of a present disability, 
there can be no valid claim.  Brammer v. Derwinski, 3 Vet. 
App. 223, 225 (1992).  Accordingly, service connection for a 
right shoulder disability is denied.

The Board has carefully weighed the evidence of record, the 
statements of the Veteran, and the treatment records, in 
light of the applicable law, and finds that equipoise is not 
shown.  As the weight of medical evidence fails to support 
the Veteran's claim for service connection for a right 
shoulder disability, the claim must be denied.  38 U.S.C.A. 
§ 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).

C.  Ulcerative Colitis

The Veteran's October 2000 enlistment examination does not 
reflect any gastrointestinal symptoms.  However, near the 
time of separation from service, in June 2005, a treatment 
note observes that the Veteran was experiencing persistent 
loose stool.

The report of a September 2005 general VA examination 
reflects that the Veteran reported experiencing epigastric 
pain since April 2004.  The Veteran was diagnosed only with 
GERD, but the examiner noted that he had an episode of melena 
the week prior to the examination.

January 2006 private treatment records reflect that he sought 
treatment for diarrhea and bowel cramping.  In May and June 
2006, intestinal biopsies were completed via colonoscopy.  
The results of the May biopsy was "probable ulcerative 
colitis" and the June physician noted that the results were 
consistent with either inflammatory bowel disease or 
ulcerative colitis. 

A November 2006 statement from a private physician, G.R., 
states that the Veteran had been diagnosed with ulcerative 
colitis and was receiving treatment for that disorder.  The 
letter notes that in-service medical records reflect a 
history of abdominal pain and diarrhea.  
The Veteran was afforded a November 2006 VA examination for 
GERD, during which the examiner noted that he had a history 
of diarrhea occurring several times each week.  No 
assessments as to his complaints of ulcerative colitis were 
made at that time.

In February 2007, the Veteran underwent a VA intestinal 
examination.  The examiner noted that the initial 
manifestations of an intestinal disorder included diarrhea 
experienced while he was deployed overseas.  The Veteran 
reported experiencing loose stools between one (1) and four 
(4) times daily.  The examiner diagnosed the Veteran with 
ulcerative colitis, but stated that it was not likely that 
the disorder was related to service, explaining that because 
a "work-up" for colitis was not done in service, stating 
any relationship between service and the diagnosis would 
require speculation.

An August 2007 letter from a private physician, D.R., 
reflects that the Veteran was diagnosed, by colonoscopic 
biopsy, with ulcerative colitis in May 2006.  The physician 
opined that, based on his symptomatology, the Veteran began 
experiencing ulcerative colitis in early 2005, while he was 
still in service.

Another letter from G.R., dated in August 2007, states that 
because no in-service treatment and testing was completed, it 
could not be medically confirmed that he did not have colitis 
prior to discharge.  G.R. further opined that, "it would be 
very unlikely that he had experienced problematic 
gastrointestinal symptoms throughout 2005 and that these 
symptoms were unrelated to his current diagnosis."

In April 2008, the Veteran underwent an additional 
colonoscopy with a private physician, as a result of which 
his diagnosis of ulcerative colitis was confirmed.

In May 2009, the Veteran was afforded a VA examination for 
GERD.  The examiner noted a history of melena.

A fellow marine, D.O., submitted a letter stating that, 
beginning in 2005, the Veteran frequently complained of 
abdominal pain and diarrhea and had to make frequent trips to 
the bathroom.

The Veteran's parents wrote in a May 2009 letter that they 
were aware, during the Veteran's deployment, that he was 
experiencing severe diarrhea.

A June 2009 letter from S.S. states that she began dating the 
Veteran shortly after he returned from service and that he 
has experienced abdominal pain, bathroom urgency, and severe 
diarrhea since that time.

A letter from fellow marine, G.G., indicates awareness that 
the Veteran "was ill with daily bouts of diarrhea and 
stomach pain during the early part of 2005."

A June 2009 letter from J.F. states that the Veteran first 
described "symptoms of uncontrollable bowel movements" to 
him in early 2005 and continued to report similar symptoms 
after discharge from service.

In September 2009, private physician G.R. again wrote to VA.  
The letter expressed his opinion that, if testing had been 
done at the time the Veteran experienced in-service symptoms, 
he would have been diagnosed with ulcerative colitis.

The Board notes that if a chronic disease is shown in 
service, subsequent manifestations of the same chronic 
disease at any later date, however remote, may be service 
connected, unless clearly attributable to intervening causes.  
38 C.F.R. § 3.303(b) (2009); see Groves v. Peake, 524 F.3d 
1306 (May 2008) (holding that when a chronic disease is 
identified in service and at any time after service, service 
connection will be granted without the need for nexus 
evidence).  However, continuity of symptoms is required where 
a condition in service is noted but is not, in fact, chronic 
or where a diagnosis of chronicity may be legitimately 
questioned.  38 C.F.R. § 3.303(b) (2009).

Certain chronic diseases will be presumed to have been 
incurred or aggravated in service if manifested to a 
compensable degree within one year after service.  38 
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  
This presumption is rebuttable by probative evidence to the 
contrary.

Here, the Veteran has provided evidence - in the form of lay 
testimony and treatment records - of continuity of symptoms 
since service.  The evidence reveals that, although the 
Veteran was not diagnosed as having ulcerative colitis until 
after service, he was seen in service for complaints of 
abdominal pain and diarrhea.  Further, in addition to the 
documented in-service treatment, the Board observes that the 
statements from fellow marines, his parents, a friend, and 
his girlfriend are supportive of his contentions that he has 
experienced digestive problems since early 2005 (while he was 
in service).  The Court has in the past held that lay 
testimony is competent regarding features or symptoms of 
injury or disease when the features or symptoms are within 
the personal knowledge and observations of the witness.  
Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also 
Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  
Further, the Veteran's private physician has opined that 
these symptoms were early manifestations of ulcerative 
colitis.  Although the 2007 VA examiner observed that any 
relationship between service and the colitis would be 
speculative, the Board finds that the preponderance of the 
evidence supports a finding that the Veteran's ulcerative 
colitis had its initial clinical onset during his active 
service.

Given the opinions of the Veteran's private physician, the 
in-service treatment, his lay testimony of continuity of 
symptomatology, and the numerous supportive lay statements, 
the Board finds that the weight of the evidence demonstrates 
that his ulcerative colitis manifested during qualifying 
service.  As such, the appeal is granted.


ORDER

Service connection for a left shoulder disability is granted.

Service connection for a right should disability is denied.

Service connection for ulcerative colitis is granted.


REMAND

As an initial matter, the Board notes that the Veterans 
Claims Assistance Act of 2000 (VCAA) requires VA to assist 
claimants with the evidentiary development of pending claims.  
As part of the duty to assist, VA is responsible for 
gathering all pertinent records of VA treatment.  38 U.S.C.A 
§ 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) 
(Observing that any VA treatment records that have been 
generated up to and including the date of the Board's 
decision, whether or not filed in an appellant's claims 
folder, are in the constructive possession of the Board and 
must be considered).  

The record reflects that the Veteran, during June 2007 VA 
treatment, informed VA that he had received an MRI of his 
left knee and hip at the Bethesda Naval Hospital.  Although 
the Veteran's parents indicated in a May 2009 letter that 
treatment records from Bethesda Naval Hospital had been lost, 
the record does not reflect that the RO made any attempt to 
assist the Veteran in obtaining any such records.  While this 
case in remand status, the RO must provide the Veteran with 
assistance in obtaining any available treatment documentation 
from this facility as well as any other newly identified 
pertinent records.

Service connection claims

Generally, the Board notes that, under VA's duty to assist, a 
medical examination or medical opinion is considered 
necessary if the information and evidence of record does not 
contain sufficient competent medical evidence to decide the 
claim, but (1) contains competent medical evidence of a 
currently diagnosed disability or persistent or recurrent 
symptoms of a disability; (2) establishes that a veteran 
suffered an event, injury, or disease in service; and (3) 
indicates that the claimed disability or symptoms may be 
associated with an established event, injury or disease in 
service or with another service-connected disability.  38 
C.F.R. § 3.159(c)(4) (2009); See Charles v. Principi, 16 Vet. 
App. 370 (2002) (Observing that under 38 U.S.C.A. § 
5103A(d)(2), VA was to provide a medical examination as 
"necessary to make a decision on a claim, where the evidence 
of record, taking into consideration all information and lay 
or medical evidence [including statements of the claimant]; 
contains competent evidence that the claimant has a current 
disability, or persistent or recurrent symptoms of 
disability; and indicates that the disability or symptoms may 
be associated with the claimant's active military, naval, or 
air service; but does not contain sufficient medical evidence 
for the [VA] to make a decision on the claim."); McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

A.  Right Hip

In January 2010 testimony before the Board, the Veteran 
asserted that he injured his right hip in service at the same 
time as he injured his service-connected left hip.  

Although service treatment records do not reflect any 
treatment for a right hip disability, the below-signed Acting 
Veteran's Law Judge found the Veteran's January 2010 
testimony credible, (presiding officials are owed deference 
as to determinations of witness credibility, see Jackson v. 
Veterans Administration, 768 F.2d 1325, 1331 (1985) and 
Pensaquitos Village Inc. v. National Labor Relations Board, 
565 F.2d 1074, 1078 (1977)), and the Board notes that laymen 
such as the Veteran can attest to their in-service 
experiences and current symptoms.  See Bostain v. West, 11 
Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 
Vet. App. 492 (1992).

Although the Veteran has been afforded numerous VA 
examinations of his joints, none of the examiners have 
thoroughly evaluated, provided an opinion as to the etiology 
of, or diagnosed a right hip disability.  However, the May 
2009 VA examiner measured right hip flexion at zero (0) to 
110 degrees.  Normal range of flexion of the hip is from 0 to 
125 degrees.  38 C.F.R. § 4.71, Plate II (2009).  

As the 2009 examination focused on the effects of the 
service-connected left hip injury, it is not clear if the 
examiner was describing the right hip limitation of flexion 
as secondary to the left hip disability, and, per Libertine 
v. Brown, 9 Vet. App. 521, 522 (1996), secondary service 
connection shall be awarded when a disability is 
"proximately due to or the result of a service-connected 
disease or injury." 38 C.F.R. § 3.310(a) (2009).  Since the 
2009 examination reflects some degree of disability 
(limitation of flexion) with the right hip, and the Veteran 
has provided persuasive testimony that he experienced an in-
service injury to the right hip as well as continued 
symptomatology after service, the Board finds that an 
examination is warranted.  38 C.F.R. § 3.159(c)(4).

B.  Left Knee

A September 2005 treatment note observes that the Veteran has 
a "bilateral knee condition."  

On VA examination in September 2005,  the VA examiner noted 
tenderness of the left patella and observed that the Veteran 
reported bilateral knee discomfort since service.  At that 
time, he was diagnosed with bilateral patellofemoral 
syndrome.  That diagnosis was repeated by the 2006 VA 
examiner.  

The Veteran reported, and sought treatment for his left knee 
after falling on his left knee in January 2007.  In June 
2007, he was diagnosed with left knee derailment and meniscal 
tear.  He was seen for complaints of bilateral knee pain in 
January 2008.  The May 2009 VA examiner stated that the 
effect of the residuals of the service-connected left hip 
injury included decreased strength in the left lower 
extremity.

Despite the diagnoses of a left knee disability, no examiner 
has provided an opinion as to the etiology of the left knee 
symptoms although, read broadly, the September 2005 
examination report implies that left knee symptoms manifested 
concurrent with right knee symptoms.  The May 2009 
examination report suggests that some left lower extremity 
loss of strength may be attributable to the service-connected 
left hip injury.  As the etiology of the left knee 
patellofemoral syndrome is unclear, as is the role of any 
intervening injury in the current severity of any left knee 
disability, the Board finds that an examination is warranted.  
38 C.F.R. § 3.159(c)(4).




C.  Foot Disability

The Veteran has been diagnosed with psoriasis, but has 
testified that the symptoms experienced on his feet are more 
severe than on other areas of his body and that his foot rash 
has begun to spread up the backs of his legs.  See testimony 
from January 2010 hearing.  The record clearly reflects that 
the Veteran experienced rash-like symptoms on his feet during 
service (treatment note of May 2004) and following service 
(2009 VA examination report).  As the Veteran's subjective 
reports indicate that the skin-disorder symptoms experienced 
on his feet may be clinically distinguishable from the 
service-connected psoriasis disability, the Board finds that 
an examination is warranted to determine whether any other 
diagnosis -besides psoriasis- may be appropriate for the 
symptoms the Veteran experiences on his feet. 

Increased rating claims

As the Veteran has claimed entitlement to increased initial 
ratings for right patellofemoral pain syndrome, psoriasis, 
GERD, and residuals of a left hip injury, by appealing the 
ratings assigned at the time service connection was 
established, the Board must consider the propriety of 
assigning one or more levels of rating, referred to as 
"staged" ratings, from the initial effective date forward, 
based on evidence as to the severity of disability.  See 
Fenderson v. West, 12 Vet. App. 119, 126-7 (1999).

Pursuant to 38 C.F.R. § 3.327(a) (2009), examinations will be 
requested whenever VA determines, as in this case, that there 
is a need to verify the exact nature or severity of a 
disability.  See also 38 C.F.R. § 3.159 (2009).  VA has the 
authority to schedule a compensation and pension examination 
when such is deemed necessary, and the Veteran has an 
obligation to report for that examination.

The Veteran contends that his right knee disability, left hip 
disability, psoriasis, and GERD are worse that than as 
reflected by the May 2009 examination reports.



A.  Right Knee

At his January 2010 hearing the Veteran stated that the pain 
in his right knee is occasionally so severe as to wake him 
from sleep.  He also noted that his knee will lock up, 
causing him to fall.  Although the May 2009 VA examination 
report reflects that the Veteran experiences additional 
limitation of range of motion of the right knee as the 
result of pain, it does not indicate any symptoms such as 
locking and he has testified that his knee pain increased 
subsequent to that examination.  As such, and because the 
last examination was conducted approximately one (1) year 
ago, the Board finds that an additional examination to 
determine the current severity of the right knee disability 
is warranted.  38 C.F.R. § 3.159; Palczewski v. Nicholson, 
21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 
(1997); VAOPGCPREC 11-95 (Apr. 7, 1995), 60 Fed. Reg. 43186 
(1995).  

B.  Left Hip

The May 2009 VA examiner noted that the Veteran was only able 
to stand for approximately one (1) hour as a result of the 
left hip disability.  His gait was described as normal.  The 
report does not reflect any indication of radiating pain from 
the left hip or of abnormal weight bearing.  However, the 
Veteran testified in January 2010 that he experiences left 
hip pain with any standing and walking, and cannot sit 
comfortably for more than 20 minutes at a time.  He reported 
that he experiences pain radiating from his left hip up to 
his lower back and down to his toes and that his left hip 
disability causes him difficulty with weight bearing.  As the 
Veteran has testified to symptoms that were not addressed by 
the 2009 examination, the Board finds that an additional 
examination is warranted.  38 C.F.R. § 3.327(a).

C.  Psoriasis

The Board notes that the 2009 VA examiner specifically noted 
that there was no disfigurement of the head, face, or neck as 
a result of psoriasis, but states that the use of a 
prescription ointment was necessary on the forehead and face.  
The examiner noted that more than five (5) percent, but less 
than 20 percent, of the body area was affected.  However, the 
Veteran testified in January 2010 that a rash was 
consistently present on his face and that he experienced 
flare-ups, especially in cold and wet weather.  He also 
stated that he experienced psoriasis of the scalp and that 
his symptoms affected 30 to 50 percent of his body area; he 
acknowledged that the severity of the disability varied 
seasonally.  The May 2009 examiner did not address the 
effects of the disability on the Veteran's activities of 
daily living.  As such, the Board finds that another 
examination is warranted.  38 C.F.R. § 3.327(a).

D.  GERD

The Veteran testified that his GERD symptoms had worsened 
since the time of his last, May 2009, VA examination.  The 
record reflects that the Veteran has experienced such 
symptoms as difficulty swallowing, nausea, vomiting, and 
epigastric pain.  The May 2009 examiner observed that his 
symptoms had worsened.  He has been diagnosed as having GERD, 
heartburn, and/or a hiatal hernia.  Because the Veteran has 
alleged worsening of his disability since the last VA 
examination, a remand for a more contemporaneous VA 
examination to assess the current nature, extent, and 
severity of his service-connected GERD is required.  
Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. 
Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95.  

Accordingly, the case is REMANDED for the following action:

1.  Ascertain whether the Veteran has 
received any VA, non-VA, or other medical 
treatment that is not evidenced by the 
current record, to specifically include, 
but not limited to, treatment received at 
the Bethesda Naval Hospital.  The Veteran 
should be provided with the necessary 
authorizations for the release of any 
private treatment records not currently 
on file.  The RO/AMC must then attempt to 
obtain these records and associate them 
with the claims folder.

2.  After any additional records have 
been associated with the claims file, 
schedule the Veteran for a new series of 
VA examinations for his claims of 
entitlement to service connection, to be 
conducted at an appropriate location.  
The purpose of the examinations are to 
determine whether the Veteran currently 
experiences right hip, left knee, and 
foot disabilities that as likely as not 
(a 50 percent or greater probability) 
began during active service or are 
causally related to any incident of his 
service.  The following considerations 
will govern the examinations:

a.  The claims file, and a copy of 
this remand, will be reviewed by the 
examiner(s) in conjunction with the 
examination, and the examiner(s) 
will acknowledge and report such 
review in any reports generated as a 
result of the examination.  

b.  The examiner(s) must respond to 
the inquiry as to whether any of the 
noted disabilities are as likely as 
not (a 50 percent or greater 
probability) to have begun during 
active service or are related to any 
of the currently service-connected 
disabilities (specifically: in 
regard to the right hip disability, 
whether it is secondary to, or 
aggravated by, the left hip; in 
regard to the left knee, whether it 
is secondary to, or aggravated by 
the left hip or right knee) or any 
other incident of his service.  In 
providing these opinions, the 
examiner(s) are to provide a 
complete medical rationale for all 
opinions, to include discussions of 
the medical principles, as well as 
the facts involved.  

If the examiner is not able to give 
an opinion without resorting to 
speculation, he or she should so 
state.  However, a complete 
rationale must be provided for any 
such finding.

c.  With respect to the claimed 
right hip disability, the examiner 
must specifically address the 
limitation of flexion observed by 
the 2009 VA examiner and the 
Veteran's report of how injury to 
the right hip occurred.  The 
examiner must provide an opinion as 
to whether any current disability is 
likely the result of such an in-
service occurrence or may be related 
to the currently service-connected 
left hip (or right knee) disability.

d.  With respect to the claimed left 
knee disability, the examiner should 
consider the effects, if any, of the 
intervening (January 2007) left knee 
injury reflected in the VA treatment 
records, including whether this 
injury was caused by an already 
existing left knee disability, or as 
a result of a service-connected 
lower extremity joint disability.  
The examiner also must consider and 
discuss the prior diagnoses of 
record, the 2009 VA examiner's 
statement that the service-connected 
left hip disability caused left 
lower extremity weakness, and the 
indication in the September 2005 VA 
examination report that left knee 
symptoms manifested concurrent with 
right knee symptoms.  The examiner 
must provide an opinion as to 
whether any current disability is 
likely the result of an in-service 
occurrence or is related to any 
service-connected disability.
e.  With respect to the Veteran's 
claimed foot disability, the 
examiner should consider the 
Veteran's subjective report of 
different/increased skin symptoms 
from the psoriasis experienced on 
the other parts of his body.  The 
examiner must provide an opinion as 
to whether any current foot 
disability is part of the Veteran's 
already service-connected psoriasis 
or represents a separate disability; 
if the symptoms are determined to 
represent a separate disability, the 
examiner must provide an opinion as 
to whether the newly diagnosed 
disability is likely the result of 
any in-service occurrence, including 
the Veteran's reports of Athlete's 
Foot in service, or is related to, 
or aggravated by, the service-
connected psoriasis.

In providing these opinions, the examiner 
should consider the Veteran's statements 
regarding his symptoms in service and his 
statements of continuous symptoms after 
service, including as a result of 
injuries precipitated by his service-
connected disabilities.  Dalton v. 
Nicholson, 21 Vet. App. 23 (examination 
found inadequate where examiner did not 
comment on the Veteran's report of in-
service injury and relied on the lack of 
evidence in the service medical records 
to provide a negative opinion).  

3.  After any additional records have 
been associated with the claims file, 
schedule the Veteran for a series of VA 
examinations at an appropriate location 
to determine the current severity of his 
service-connected left hip, right knee, 
psoriasis, and GERD disabilities.  With 
respect to the examination for psoriasis, 
as the Veteran has reported seasonal 
fluctuations of his skin condition, a 
dermatological examination should be 
conducted during a period in which his 
skin condition is active; i.e., not 
during the months of summer or early 
fall.  See Ardison v. Brown, 6 Vet. App. 
405, 407-08 (1994) (recognizing the need 
for a medical examination during the 
active stage of a condition).  The 
following considerations will govern the 
examinations:

a.	The entire claims folder and a 
copy of this remand must be made 
available to the examiners in 
conjunction with the examinations.  
The resulting reports must reflect 
review of pertinent material in the 
claims folder.

b.	After reviewing the claims file 
and examining the Veteran, the 
examiners must provide current 
findings as to the severity of the 
service-connected disabilities.  The 
examiners must discuss the symptoms 
described by the Veteran, conduct any 
necessary tests, and clearly state 
the degree of disability and the 
effects on his daily activities.  In 
regard to the knee and hip 
disabilities, the examiner(s) must 
also list any appropriate 
measurements of range of motion and 
discuss any reported symptoms further 
affecting the Veteran's ability to 
use those joints.  

c.  With specific regard to the 
Veteran's GERD, the examiner must 
conduct all necessary diagnostic 
testing to discern the nature and 
etiology of the Veteran's complaints 
of difficulty swallowing, and 
whether his GERD is productive of 
anemia.  
d.  The examiner evaluating the 
current severity of psoriasis is 
requested to review and discuss the 
results of the examination for a foot 
disability (directed above) as well 
as consider and discuss the Veteran's 
testimony that the severity of this 
disability varies seasonally (noting 
the timing of the previous VA 
examinations).  Lastly, the examiner 
should state whether the Veteran's 
complaints of joint pain are 
consistent with a diagnosis of 
psoriatic arthritis.

e.  All clinical findings must be 
reported in detail and correlated to 
a specific diagnosis.  In all 
conclusions, the examiners must 
identify and explain the medical 
basis or bases, with identification 
of pertinent evidence of record, 
including the previous VA examination 
reports.  If any examiner is unable 
to render an opinion without resort 
to speculation, he or she should so 
state and explain why.

4.  After the above has been completed, 
the RO/AMC must review the claims file 
and ensure that all foregoing development 
actions have been completed in full.  If 
any development is incomplete, 
appropriate corrective action is to be 
implemented.  If any examination reports 
do not include adequate responses to the 
specific opinions requested, it must be 
returned to the examiner(s) for 
corrective action.  See 38 C.F.R. § 4.2 
(2009).

5.  Thereafter, the RO/AMC must consider 
all of the evidence of record and 
readjudicate the Veteran's claims.  In 
regard to the claims of entitlement to 
increased ratings, the RO/AMC must 
consider the propriety of "staged" 
ratings based on any changes in the 
degree of severity of the Veteran's 
service-connected disabilities.  The 
Veteran and his representative must be 
provided a supplemental statement of the 
case (SSOC).  The SSOC must contain 
notice of all relevant actions taken on 
the claims, to include a summary of the 
evidence and the law and regulations 
considered pertinent to the issues on 
appeal.  An appropriate period of time 
should be allowed for response.  
Thereafter, if indicated, the case should 
be returned to the Board for appellate 
disposition.

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

The Veteran is hereby notified that it is his responsibility 
to report for any examinations and to cooperate in the 
development of the claim.  The consequences for failure to 
report for a VA examination without good cause may include 
denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009).   In 
the event that the Veteran does not report for any scheduled 
examination, documentation should be obtained which shows 
that notice scheduling the examination was sent to the last 
known address.   It should also be indicated whether any sent 
notice was returned as undeliverable.

The RO and the Veteran are advised that the Board is 
obligated by law to ensure that the RO complies with its 
directives, as well as those of the appellate courts.  It has 
been held that compliance by the Board or the RO is neither 
optional nor discretionary.  Where the remand orders of the 
Board or the Courts are not complied with, the Board errs as 
a matter of law when it fails to ensure compliance.  Stegall 
v. West, 11 Vet. App. 268, 271 (1998).

	(CONTINUED ON NEXT PAGE)





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. 2009).




______________________________________________
S.C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs