Citation Nr: 1124890	
Decision Date: 06/30/11    Archive Date: 07/06/11

DOCKET NO.  10-35 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a bilateral elbow disorder, to include scars.

2.  Entitlement to service connection for degenerative arthritis of the left knee.

3.  Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression.

4.  Entitlement to service connection for a bilateral ear disorder, to include aches and infections.

5.  Entitlement to service connection for a left wrist disorder.

6.  Entitlement to an initial evaluation in excess of 30 percent disabling for PTSD.

7.  Entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a head injury, to include headaches.

8.  Entitlement to an initial evaluation in excess of 10 percent disabling for head injury scars.

9.  Entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a fracture of the left 2nd and 5th fingers.

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


REPRESENTATION

Appellant represented by:	Kenneth LaVan, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1972 to June 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In March 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims folder.

At the Veteran's hearing the Veteran raised the issue of entitlement to service connection for a left hand disorder.  As this matter is not currently developed or certified for appellate review, it is referred to the RO for appropriate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues entitlement to service connection for degenerative arthritis of the left knee; entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression; entitlement to service connection for a bilateral ear disorder, to include aches and infections; entitlement to service connection for a left wrist disorder; entitlement to an initial evaluation in excess of 30 percent disabling for PTSD; entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a head injury, to include headaches; entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a fracture of the left 2nd and 5th fingers; and 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.  Resolving all reasonable doubt in the Veteran's favor, bilateral elbow arthritis had its onset in service.

2.  The Veteran's head injury scars do not manifest disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement or any limitation of motion.


CONCLUSIONS OF LAW

1.  Bilateral elbow arthritis was incurred in service.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).

2.  The criteria for an initial evaluation in excess of 10 percent disabling for head injury scars have not been met. 38 U.S.C.A. §§ 1154(a), 5107(b), 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.118, Diagnostic Code 7804 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, in regard to the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent disabling for head injury scars, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, VA's duty to notify in this case has been satisfied.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran submitted private treatment records from Behavioral Health Care, North Central Arkansas Medical Associates, and Drs. F., G., V.S., and M.M., and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  The appellant was afforded VA medical examinations in November 2008 and December 2009.  Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the Veteran's receipt of a VCAA-compliant notice letter.  Here, during the hearing, although the Veterans Law Judge did not explicitly note the bases of the prior determinations or note the elements that were lacking to substantiate the Veteran's claims, the Veteran's representative demonstrated actual knowledge of this information.  The representative's questions specifically elicited responses designed to show that the Veteran's head injury scars were more severe than currently evaluated.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.)  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

In addition, the Veterans Law Judge sought to identify any pertinent, outstanding evidence that might have been overlooked.  The Veterans Law Judge specifically asked the Veteran during the hearing where he received his treatment.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

In regard to the Veteran's claim of entitlement to service connection for a bilateral elbow disorder, to include scars, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). 

The Veteran seeks entitlement to service connection for a bilateral elbow disorder, to include scars.  The Veteran contends that he has a current bilateral elbow disorder due to injuries sustained in an in-service personal assault.

The service treatment records do not reveal any complaint diagnosis or treatment for any bilateral elbow disorder.  Upon examination at separation from service in May 1975 the Veteran was not noted to have any bilateral elbow disorder.

Post-service treatment notes reveal that in September 2008 the Veteran complained of bilateral elbow pain.  He reported that his disorder began when he was assaulted with a club in service and that both elbows were injured.  He stated that he had some loss of motion and that he had intermittent pain in his elbow for some time.  The Veteran denied radicular type symptoms.  X-ray examination of the left elbow revealed minimal increased spurring at the cornily process.  X-ray of both elbows did not reveal any significant arthritic change and the overall carrying angle was essentially normal.  After physical examination the Veteran was diagnosed with trauma to both elbows in the remote past with slight loss of motion and chronic pain.

In a statement dated in November 2008 and a statement received in February 2009 the Veteran reported that he landed on his elbows when he fell during his in-service assault.

At a hearing before the undersigned Veterans Law Judge, the Veteran reported that when he was assaulted in service he landed on his knees and elbows.

The Board finds that entitlement to service connection for bilateral elbow arthritis is warranted.  Although the Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for any elbow disorder, the Veteran has competently and credibly reported that he fell on his elbows when he was attacked in service.  The Veteran's post-service treatment records reveal that the Veteran has been diagnosed with trauma to both elbows in the remote past with slight loss of motion and chronic pain.  In addition, X-ray examination of the left elbow revealed minimal increased spurring at the cornily process.  As such, entitlement to service connection for bilateral elbow arthritis is granted.

III.  Higher Evaluation

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In a rating decision dated in January 2010 the Veteran was granted entitlement to service connection for scars associated with a head injury and was assigned an evaluation of 10 percent disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804.  The Veteran perfected an appeal regarding this initial evaluation.

The criteria for rating scars were revised for claims received on or after October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008), codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805.  Because, however, these changes were expressly made applicable only to claims filed on or after this effective date, they do not apply to the Veteran's pending claim, which instead as mentioned was received by VA in July 2005, so before these regulatory changes.  See also 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114.

Prior to October 2008, under Diagnostic Code 7800, a 10 percent evaluation was warranted for disfigurement of the head, face, or neck with one characteristic of disfigurement.  38 C.F.R. § 4.118.  A 30 percent evaluation was warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement.  Id.  A 50 percent evaluation was warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement.  Id.  The highest evaluation of 80 percent was warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement.  Id.

The eight characteristics of disfigurement, for purposes of evaluation under § 4.118 are: (1) scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.).  Id. at Note (1).

Prior to October 2008, Diagnostic Code 7801 provided ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion.  Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) were rated 10 percent disabling.  Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated 20 percent disabling.  Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated 30 percent disabling.  Scars in an area or areas exceeding 144 square inches (929 sq. cm.) were rated 40 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.  Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118.

Prior to October 2008, Diagnostic Code 7802 provided ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion.  Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated 10 percent disabling.  Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118.

Prior to October 2008, Diagnostic Code 7803 provided a 10 percent rating for superficial unstable scars.  Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118.

Prior to October 2008, Diagnostic Code 7804 provided a 10 percent rating for superficial scars that are painful on examination.  Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) provides that a 10 percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating.  38 C.F.R. § 4.118.  Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule).  38 C.F.R. § 4.118.

Prior to October 2008, Diagnostic Code 7805 provided that other scars are to be rated on limitation of function of affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805.

In November 2008 the Veteran was afforded a VA Compensation and Pension (C&P) scar examination.  The Veteran reported that he suffered a personal attack while in service.  The Veteran indicated that he sustained a 3 inch scar on the left forehead.  The Veteran complained of numbness and tenderness in the area of the scar.  The examiner noted that the scar was 3 inches by 0.25 inches and that there was numbness and tenderness in the scar.  Physical examination revealed no adherence to the underlying tissue.  The texture of the scar was irregular.  The scar was stable and there was no elevation or depression of the scar on palpation.  The scar was superficial and there was no evidence of any inflammation, edema, or keloid formation.  The skin color was similar to the surrounding skin and there was no area of induration of inflexibility of the skin in the area of the scar.  The Veteran had no limitation of motion but complained of headaches since the injury occurred.  The Veteran was diagnosed with scar with residual of headaches.

In December 2009 the Veteran was afforded a VA scar examination.  The Veteran reported that he was attacked in service and was beaten to the ground resulting in cuts on the head, knees, and elbows.  Physical examination revealed a scar on the left, lateral forehead that was somewhat faded.  The scar was 5 centimeters in length and 0.75 centimeters in width.  The texture was normal.  There was no tenderness, adherence, frequent loss of covering of the skin over the scar as ulceration or breakdown of the skin, an area of induration and inflexibility of the skin, or elevation or depression of the surface contour of the scar on palpation.  The scar was superficial.  There was no gross distortion or asymmetry of any feature or set of paired features.  There was no inflammation, edema, or keloid formation.  The scar was slightly darker pink than the surrounding normal white tissue.  There was no limitation of motion caused by the scar.  The Veteran was diagnosed with a scar secondary to injury, left forehead.

The Board finds that entitlement to an evaluation in excess of 10 percent disabling for the Veteran's scar associated with a head injury is not warranted at any point during the period on appeal.  At no point during the period on appeal did the Veteran's scar manifest disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement.  As such, entitlement to an evaluation in excess of 10 percent disabling is not warranted under Diagnostic Code 7800.  The Board notes that although Diagnostic Code 7801 provides ratings in excess of 10 percent disabling, this Diagnostic Code is inapplicable because the Veteran's scar affects the Veteran's head.  In addition, the Board notes that the Veteran's scar does not cause any limitation of motion, is not deep, and does not affect an area of 12 square inches (77 sq. cm.) or more.  The Board notes that Diagnostic Codes 7802, 7803, and 7804 do not provide for evaluations in excess of 10 percent disabling.  Lastly, as at no point did the Veteran's scar cause any limitation of motion, Diagnostic Code 7805 is not applicable.  As such, entitlement to an initial evaluation in excess of 10 percent disabling for head injury scars is denied. 

In reaching the decision above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to an initial evaluation in excess of 10 percent disabling for head injury, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Finally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321.  The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

The Veteran does not meet the criteria for an evaluation in excess of 10 percent disabling for head injury scars, and there are no aspects of this disability not contemplated by the schedular criteria.  The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted.




ORDER

Service connection for bilateral elbow arthritis is granted.

Entitlement to an initial evaluation in excess of 10 percent disabling for head injury scars is denied.


REMAND

The Veteran seeks entitlement to service connection for degenerative arthritis of the left knee; entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression; and entitlement to service connection for a bilateral ear disorder, to include aches and infections; entitlement to service connection for a left wrist disorder.  The Veteran contends that these conditions are due to an in-service assault.

In addition, the Veteran seeks entitlement to an initial evaluation in excess of 30 percent disabling for PTSD; entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a head injury, to include headaches; entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a fracture of the left 2nd and 5th fingers; and entitlement to a TDIU.

The Veteran reported at his hearing before the undersigned Veterans Law Judge that he receives continuous treatment at Behavioral Health Care in West Plains, Missouri.  Review of the claims file does not reveal that records regarding the Veteran's treatment at this facility dated since September 2009 have been associated with the claims file.

VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1).  Accordingly, attempts must be made to obtain the complete records of the Veteran's treatment at Behavioral Health Care in West Plains, Missouri.

The Veteran seeks entitlement to service connection for degenerative arthritis of the left knee.  The Veteran contends that his knee was injured during an in service assault.  The Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for any left knee disorder.  Upon examination at separation from service in May 1975 the Veteran was not noted to have any left knee disorder.

In a post-service treatment record dated in September 2008 the Veteran complained of left knee pain when he walks any distance, that he has trouble getting up after sitting for any length of time, and that he has occasional swelling in the knee.  Physical examination revealed that the Veteran lacked 5 degrees of extension in the left knee.  The overall alignment of the left knee was neutral.  There was a positive Apley's compression in the medial joint space and negative distraction.  There was no varus or valgus laxity and no effusion.  X-rays of the left knee revealed moderate degenerative change of medial joint space, mild calcification of the medial meniscus, and some calcification of the lateral meniscus.  The Veteran was diagnosed with degenerative versus posttraumatic arthritis of the medial compartment of the left knee.

The Board notes that the Veteran has not been afforded a VA medical examination regarding the etiology of his left knee disability.  Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is:  (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Here, the Veteran's service treatment records reveal that the Veteran was treated after an assault in service, the Veteran has competently and credibly reported that he fell on his knees during the in service assault, and the Veteran is currently diagnosed with a left knee disorder.  As such, the Board finds it necessary to remand this claim for the Veteran to be afforded a VA medical examination.

The Veteran seeks entitlement to service connection for a bilateral ear disorder.  The Veteran contends that he has experienced ringing in his ears since service and at his hearing before the Board in March 2011 clarified his claim as a claim of entitlement to service connection for tinnitus.

The Veteran's service treatment records do not reveal any complaint diagnosis or treatment for any bilateral ear disorder, to include tinnitus.  Upon examination at separation from service in May 1975 the Veteran was not noted to have any bilateral ear disorder, to include tinnitus.

In a post-service treatment note, dated in May 2007, the Veteran reported pain in his ears for the prior week.  The Veteran was diagnosed with acute otitis externa.  In a post-service treatment note, dated in November 2008, the Veteran reported that he had ear pain and ringing in the ears.  He stated that the symptoms had been going on for two weeks and that he had chronic trouble hearing since he was attacked in the military.  The Veteran was diagnosed with left otitis externa.

The Board notes that the Veteran has not been afforded a VA medical examination regarding his reported tinnitus.  The Veteran has competently reported that he has had ringing in his ears since service and has been reported to have current symptoms of ringing in his ears.  As such, the Board finds that the Veteran must be provided a VA medical examination regarding the etiology of the Veteran's ringing in his ears.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006)

The Veteran seeks entitlement to service connection for a left wrist disorder.  The Veteran contends that he has a current left wrist disorder due to injuries sustained in an in service personal assault.

The Veteran's service treatment records reveal that the Veteran reported being attacked in September 1974.  The Veteran was treated for a cut on the forehead and for a fracture of a finger on the left hand.  In addition, the Veteran's left wrist was examined by X-ray.  The X-ray revealed that the left wrist was within normal limits.  However, upon examination at separation from service in May 1975, the Veteran was not noted to have any left wrist disorder.

At the Veteran's hearing before the undersigned Veterans Law Judge the Veteran reported that he had chronic left wrist pain since service.

The Board notes that the Veteran has not been afforded a VA medical examination regarding the etiology of a left wrist disorder.  The Veteran's service treatment records reveal that the Veteran's wrist was examined after an in service assault.  In addition, the Veteran has reported wrist pain since service.  As such, the Board finds that the claim must be remanded for the Veteran to be afforded a VA medical examination regarding the etiology of any left wrist disorder found to be present.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006)

As to the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, entitlement to an initial evaluation in excess of 30 percent disabling for PTSD, and entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a head injury, to include headaches, in light of the outstanding records and the age of the most recent VA examination, the Board finds that after associating his outstanding VA outpatient treatment records and outstanding private treatment records with the claims folder, the Veteran must be afforded a contemporaneous VA examination.  See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).

The Veteran seeks entitlement to an initial evaluation in excess of 10 percent disabling for residuals of a fracture of the left 2nd and 5th fingers.  As the Veteran has indicated that the residuals of a fracture of the left 2nd and 5th fingers is more severe than currently evaluated and is a part of a complete left hand disability, the Board finds that the Veteran has indicated that his residuals of a fracture of the left 2nd and 5th fingers disability may have become more severe since the prior examination.  As such, the Board has no discretion and must remand this matter to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his residuals of a fracture of the left 2nd and 5th fingers disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995).

The Veteran also seeks entitlement to a TDIU.  As the Board is referring the issue of entitlement to service connection for a left hand disorder and is remanding increased evaluation claims, the Board finds the issue of entitlement to a TDIU to be inextricably intertwined with the referred issue of entitlement to service connection for a left hand disorder and the Veteran's claims of increased evaluation that are being remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  Because the issues are inextricably intertwined, the Board is unable to review the issue of entitlement to a TDIU until the issues of entitlement to service connection for a left hand disorder and the Veteran's increased evaluation claims are resolved.  Id.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

1.  After securing the proper authorization, request treatment records pertaining to the Veteran from Behavioral Health Care in West Plains, Missouri, dated since September 2009.  Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file.

2.  Thereafter, arrange for the Veteran to undergo an appropriate VA examination(s) to determine the nature, extent, onset and etiology of any left knee disorder and/or left wrist disorder found to be present.  The claims folder should be made available to and reviewed by the examiner.  All indicated studies should be performed, and all findings should be reported in detail.  The examiner should comment on the Veteran's report regarding the onset and continuity of symptomatology, the lay statements of record relating to the Veteran's symptomology since service, and opine as to whether it is at least as likely as not that the Veteran's hearing loss is related to or had its onset during service, and particularly, to his report of in-service acoustic trauma.  The rationale for all opinions expressed should be provided in a legible report.  

3.  Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any tinnitus found to be present.  The claims folder should be made available to and reviewed by the examiner.  All indicated studies, including an audiological evaluation, should be performed, and all findings should be reported in detail.  The examiner should comment on the Veteran's competent report regarding the onset and continuity of his ringing in the ears, the lay statements of record relating to the Veteran's tinnitus since service, and opine as to whether it is at least as likely as not that any tinnitus found to be present is related to or had its onset during service.  Rationale for all opinions expressed must be provided in a report.  

4.  Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any acquired psychiatric disorder, other than PTSD, found to be present, to include depression, as well as the extent and severity of his PTSD.  The claims folder should be made available to and reviewed by the examiner.  All indicated studies should be performed, and all findings should be reported in detail.  

As to the service connection claim, the examiner must comment on the Veteran's report regarding the onset and continuity of symptomatology, the lay statements of record regarding symptomatology since service, and opine as to whether it is at least as likely as not that any acquired psychiatric disorder, other than PTSD, to include depression, is related to or had its onset during service, to include as due to traumatic brain injury.  

As to his PTSD, the examiner must identify all manifestations of the disability.  In doing so, the examiner must comment on the Veteran's cognitive impairment.  Thereafter, the examiner must comment on the social and occupational impairment related to the Veteran's PTSD.  The examiner must opine as to the impact his PTSD has on his ability to secure and follow a substantially gainful occupation due to his psychiatric disability and estimate the Veteran's Global Assessment of Functional (GAF) Scale score.  

The examiner should set forth a complete rationale for all findings and conclusions in a legible report.

5.  Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his residuals of a fracture of the left 2nd and 5th fingers disability.  The claims folder should be made available to and reviewed by the examiner.  All indicated tests must be performed.

The examiner must comment on whether the Veteran has a left hand disability and, if so, whether it is at least as likely as not that the left hand disability was caused or aggravated by his service-connected fracture of the 2nd and 5th fingers, or instead is distinct from the Veteran's residual of a fracture of the left 2nd and 5th fingers disability or represents a material worsening of the same disability.

Complete rationale for all findings and conclusions should be set forth in a report.

6.  Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his residuals of a head injury, to include headaches and the impact of his service-connected disability on his ability to work.  The examiner must state whether the Veteran has residuals of traumatic brain injury.  The claims folder should be made available to and reviewed by the examiner.  All indicated tests should be performed.  

As to his TDIU claim, the examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities (PTSD, residuals of fracture of the left 2nd and 5th finger, scars associated with head injury, and residuals of a head injury to include headaches) jointly on the Veteran's employability.  The examiner must opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation.  

If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background.  

The examiner must provide a complete rationale for any stated opinion, which must be set forth in a report.

7.  Then readjudicate the appeal.  In doing so, the RO must consider the revised criteria set forth in Diagnostic Code 8045.  If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs