Citation Nr: 1136860	
Decision Date: 09/30/11    Archive Date: 10/11/11

DOCKET NO.  06-25 193A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD), claimed as sore throat and stomach pains.

2.  Entitlement to a compensable evaluation for chronic allergic rhinitis, with the appearance of a left concha bullosa.

3.  Entitlement to a compensable evaluation for the left foot, status post bunionectomy, claimed as bilateral foot arthritis.

4.  Entitlement to a compensable evaluation for migraine headaches disorder prior to July 23, 2009, and to an evaluation in excess of 30 percent thereafter.

5.  Entitlement to direct service connection for an acquired psychiatric disorder other than severe depression, claimed as psychological problems, to include adjustment disorder, paranoid traits, dissociative disorder related to military abuse and false charges, bipolar disorder, anxiety disorder, stress and panic attacks.

6.  Entitlement to service connection for meningioma, claimed as growth in head, right temporal area.

7.  Entitlement to service connection for blemishes and scarring on various parts of the body, claimed as being on the stomach, arms, feet, neck, knees, legs, and ankles. 

8.  Entitlement to service connection for disorder characterized by loss of feeling on right side of body.

9.  Entitlement to service connection for an upper lumbar disorder.

10.  Whether new and material evidence has been received to reopen claim for service connection for disorder characterized by right knee pain.

11.  Whether new and material evidence has been received to reopen claim for service connection for contusion on left sixth to eighth ribs, claimed as rib pain.

12.  Whether new and material evidence has been received to reopen claim for service connection for medical counseling for alcohol dependency.

13.  Entitlement to service connection for a nose disorder, claimed as other than chronic allergic rhinitis.

14.  Whether new and material evidence has been received to reopen claim for service connection for chronic cervical pain-on-motion with trapezius strain, claimed as shoulder pain.

15.  Whether new and material has been received to reopen a claim for service connection for retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6.  

16.  Whether new and material evidence has been received to reopen claim for service connection for carious No. 19 tooth and periodontal disease, claimed as gum disease.

17.  Whether new and material evidence has been received to reopen claim for service connection for cold weather injuries, claimed as frostbite.

18.  Whether new and material evidence has been received to reopen claim for service connection for diabetes mellitus II.

19.  Whether new and material evidence has been received to reopen claim for service connection for low blood pressure.

20.  Whether new and material evidence has been received to reopen claim for service connection for severe depression.

21.  Whether new and material evidence has been received to reopen claim for service connection for right foot hallux valgus, claimed as bilateral foot arthritis.

22.  Whether new and material evidence has been received to reopen claim for service connection for right elbow pain, claimed as bilateral elbow pain.

23.  Whether new and material evidence has been received to reopen claim for service connection for a sleep disorder.

24.  Whether new and material evidence has been received to reopen claim for service connection for recurrent otalgia.

25.  Whether new and material evidence has been received to reopen claim for service connection for left elbow strain, claimed as bilateral elbow pain.

26.  Whether new and material evidence has been received to reopen claim for service connection for arthritis of the right and left hands.

27.  Whether new and material evidence has been received to reopen claim for service connection for thyroiditis.

28.  Whether new and material evidence has been received to reopen claim for service connection for claustrophobia.

29.  Whether new and material evidence has been received to reopen claim for service connection for chronic low back pain disorder.

30.  Entitlement to service connection for total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU).   


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tabitha G. Macko, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1980 to April 16, 1992, that was considered honorable for VA purposes, in addition to service from April 17, 1992, to January 1998 that was considered dishonorable for VA purposes.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2003 and May 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  Eventually, the claims file was transferred to the jurisdiction of the RO in Phoenix, Arizona, upon the Veteran's relocation to that area.

As listed on the title page, the Veteran has sought service connection for a variety of disorders in addition to claiming various symptoms and medical complaints.  The Board has preserved the list of pending claims, as articulated during the adjudication process, specifically on the June 2006 Statement of the Case, based in turn on the Veteran's own claims, in an effort to keep track of them all.  But, as will be discussed later, for the sake of judicial economy in the Board's own decision, the Board will group the claims under appropriate categories with more concise nomenclature.

In a March 2003 rating decision mailed in April 2003, the RO, in relevant part, denied service connection for psychological problems (to include adjustment disorder, paranoid traits, dissociative disorder, bipolar disorder, anxiety disorder, and stress and panic disorder); growth in head, right temporal area; blemishes and scarring on various parts of the body; loss of strength and feeling on the right side; and low back pain, after determining that new and material evidence had not been received; chronic cervical pain-on-motion with trapezius strain, after determining that new and material evidence had not been received; right knee pain, after determining that new and material evidence had not been received; carious #19 tooth and periodontal disease, after determining that new and material evidence had not been received; cold weather injuries, after determining that new and material evidence had not been received; diabetes mellitus, after determining that new and material evidence had not been received; low blood pressure, after determining that new and material evidence had not been received; and severe depression, after determining that new and material evidence had not been received.

In his statement dated February 2004, the Veteran disagreed with the RO's decisions for the above articulated issues, and requested service connection for the following disorders (that were previously denied in an unappealed April 2001 rating decision): specifically, contusion to the ribs, right and left feet disorder, right and left elbows disorder, arthritis in the right and left hands, medical counseling for military abuse, chronic cervical spine strain with retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6, sleep disorder, thyroiditis, recurrent otalgia, claustrophobia, upper lumbar disorder, and a nose disorder other than chronic allergic rhinitis.  He also requested increased evaluations for his four service-connected disabilities. 

In the March 2003 rating decision, the RO also denied service connection for a chronic low back pain disorder.  In his February 2004 notice of disagreement the Veteran included the issue of chronic low back pain as an issue on appeal.  The claims file does not contain a Statement of the Case (SOC) regarding this issue.  Under these circumstances, as a timely NOD was received following the April 2003 notice of the RO's rating decision denying service connection for chronic low back pain disorder, but no SOC was issued in regards to this issue, the Board must consider whether this issue must be remanded for the issuance of a SOC.  See Manlicon v. West, 12 Vet. App. 238 (1999).  Thus, this issue has been listed on the title page of this decision.

In a May 2005 rating decision, the RO denied claims for service connection for right foot hallux valgus, right elbow pain, sleep disorder, recurrent otalgia, contusion to ribs, left elbow strain, arthritis of the right and left hands, medical counseling for alcohol abuse, thyroiditis, claustrophobia, cervical strain with retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6, after determining that for all of these listed disorders no new and material evidence had been received.  In addition the RO denied service connection for upper lumbar disorder, a nose disorder other than chronic allergic rhinitis, and loss of feeling on the right side, and individual unemployability.

After a June 2005 notice of disagreement that applied to the entirety of the May 2005 rating decision, the RO issued the Statement of the Case (SOC) in June 2006 (that listed all of the appealed claims except for chronic low back pain disorder claim), and the Veteran perfected his appeal as to all these issues, as listed on the title page, in August 2006.  (The Board observes that the June 2006 SOC did not include the issue of a disorder characterized by right knee pain; however, this issue was adjudicated in the June 2010 Supplemental Statement of the Case (SSOC), the Veteran was notified therein that the June 2010 SSOC would be considered the SOC for this issue and that he still needed to perfect the appeal with regard to this sole issue.  In July 2010 the Veteran returned the substantive appeal for the issue of service connection for a disorder characterized by right knee pain, and so this issue is before the Board.)  

In a June 2006 rating decision, the RO increased the disability rating for the Veteran's service-connected GERD disability, effective the date of claim.  Because the increase in the evaluation of the Veteran's GERD disability did not represent the maximum rating available for the disability, the Veteran's claim remained in appellate status.  AB v. Brown, 6 Vet. App. 35 (1993).

Likewise, in a February 2010 rating decision, the RO increased the disability rating for the Veteran's migraine headache disorder to 30 percent, effective July 23, 2009.  Because the increase in the evaluation of the Veteran's migraine headache disability did not represent the maximum rating available for the disability, the Veteran's claim remained in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

In consideration of a recent Court decision, the Board has recharacterized the Veteran's psychiatric claim, seeking entitlement to service connection for psychological problems, to include adjustment disorder, paranoid traits, dissociative disorder related to military abuse and false charges, bipolar disorder, anxiety disorder, stress and panic attacks, as is now stated on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

Finally, in July 2009 the RO sent notice to the Veteran, with notice of his appeal rights by means of VA Form 4107, that while he had listed the following issues on the February 2004 Notice of Disagreement, as these issues had been denied in an April 2001 rating decision, the one year appeal period had expired and the RO would not consider these issues as being on appeal.  The issues as articulated by the RO were: contusion to the left 6th to 8th ribs (claimed as rib pain), medical counseling due to alcohol dependency, right foot hallux valgus, right elbow pain, sleep disorder, recurrent otalgia, left elbow strain, arthritis of the right and left hands, thyroiditis, and claustrophobia.  Accordingly, the RO issued supplemental statements of the case in February 2010 and June 2010 that did not list these issues.  Though not listed in the July 2009 notice, the issue of TDIU was also not readjudicated in either of the subsequent supplemental statements of the case.  However, as will be discussed in the remand below, the Board will consider whether these issues remain before the Board because VA may have taken action that lead the Veteran to believe the issues were indeed perfected.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected); Douglas v. Shinseki, No. 07-1392 (U.S. Vet. App. Apr. 17, 2009) (a timely substantive appeal is not necessary to confer jurisdiction on the Board).  

The Veteran indicated on his August 2006 substantive appeal that he wanted a hearing before the Board.  The Veteran failed to show for a scheduled September 2010 Board videoconference hearing; therefore, his request for a hearing is deemed waived.  

The issues of entitlement to service connection for right thumb disorder, including as secondary to asbestos exposure (claimed as limited use of right thumb) and for erectile dysfunction (See June 2005 statement), in addition to the issue of whether new and material evidence has been received to reopen consideration of character of service (See August 2006 substantive appeal and June 2010 statement), 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 contusion to the left 6th to 8th ribs (claimed as rib pain), medical counseling due to alcohol dependency, right foot hallux valgus, right elbow pain, a sleep disorder, recurrent otalgia, left elbow strain, arthritis of the right and left hands, thyroiditis, claustrophobia, an upper lumbar disorder, a disorder characterized by the loss of feeling on the right side of the Veteran's body, chronic cervical pain-on-motion with trapezius strain, claimed as shoulder pain, retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6, an acquired psychiatric disorder other than severe depression, claimed as psychological problems, to include adjustment disorder, paranoid traits, dissociative disorder related to military abuse and false charges, bipolar disorder, an anxiety disorder, stress and panic attacks, severe depression, and chronic low back pain disorder, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's GERD has not been productive of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

2.  The Veteran's chronic allergic rhinitis was productive of subjective symptoms including sneezing, tender sinuses, and occasionally reported congestion that resolves, without nasal obstruction or polyps.  

3.  For the period prior to July 11, 2007, the Veteran's left foot status post bunionectomy manifested full, and full range of motion without neurological impairment or surgical intervention, though with complaints of pain; after July 11, 2007, the Veteran's left foot disorder manifested mild degenerative changes, some reduction in range of motion, with occasional complaints of pain such to approximate a moderate disability.

4.  From May 3, 2006, the Veteran's migraine were productive of characteristic prostrating attacks averaging one in two months, and after July 23, 2009, the Veteran's migraine headaches are productive of characteristic prostrating attacks at least once per month, but the evidence does not reflect very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

5.  The Veteran does not have a current meningioma, claimed as a growth in the head, that is in any way etiologically related to an incident of service during a period of service determined to be honorable for VA purposes.  

6.  A well-healed mid-line surgical scar was incurred during that period of service determined to be honorable for VA purposes; however no blemishes or other assorted scars were incurred on both arms and various parts of the body during that period of service determined to be honorable for VA purposes and the Veteran did not experience continuous symptoms of blemishes on both arms or other various scars following honorable service.

7.  In an April 2001 rating decision, the RO denied service connection for a right knee pain disorder, finding that there was no right knee disease or injury incurred during the period of service honorable for VA purposes; the Veteran did not appeal that decision.  

8.  The April 2001 decision is the last final denial of service connection for a right knee pain disorder.  

9.  Evidence received since the April 2001 RO decision is new but does not relate to an unestablished fact necessary to substantiate the claim of whether a right knee pain disorder was incurred or aggravated in that period of service considered honorable for VA purposes, and does not raise the possibility of substantiating the Veteran's claim for service connection for a right knee pain disorder.   

10.  There is no diagnosed nose condition, other than the service connected chronic allergic rhinitis, with an appearance of a left concha bullosa.  

11.  In an April 2001 rating decision, the RO denied service connection for a carious No. 19 tooth and periodontal disease, cold weather injuries, claimed as frostbite, diabetes mellitus II, and low blood pressure, finding that no such diseases or injuries were incurred during the period of service honorable for VA purposes; the Veteran did not appeal that decision.  

12.  The April 2001 decision is the last final denial of service connection for a carious No. 19 tooth and periodontal disease, cold weather injuries, claimed as frostbite, diabetes mellitus II, and low blood pressure.   

13.  Evidence received since the April 2001 RO decision is new but does not relate to an unestablished fact necessary to substantiate the claim of whether a carious No. 19 tooth and periodontal disease, cold weather injuries, claimed as frostbite, diabetes mellitus II, and low blood pressure were incurred or aggravated in that period of service considered honorable for VA purposes, and does not raise the possibility of substantiating the Veteran's claims for service connection for a carious No. 19 tooth and periodontal disease, cold weather injuries, claimed as frostbite, diabetes mellitus II, and low blood pressure.   


CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for GERD have not been met for any period on appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.27, 4.114, Diagnostic Code 7346 (2010).

2.  The criteria for a compensable rating for chronic allergic rhinitis have not been met for any period on appeal.  38 U.S.C.A. § 1155(West 2002 & Supp. 2010); 38 C.F.R. § 4.97, Diagnostic Codes 6513, 6522-6524 (2010).  

3.  For the period prior to July 11, 2007, the criteria for a compensable rating for a left foot status post bunionectomy disability have not been met; however the criteria for a 10 percent rating have been met thereafter.  38 U.S.C.A. § 1155; 38 C.F.R. 
§§ 4.1, 4.3, 4.7, 4.10, 4.31, 4.71a, Diagnostic Code 5284 (2010).

4.  The criteria for a 10 percent evaluation for migraine headaches have been met as of May 3, 2006; however from July 23, 2009, the criteria for an evaluation in excess of 30 percent for migraine headaches have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2010).   

5.  The criteria for service connection for a meningioma, claimed as a growth in the head, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6(a), 3.102, 3.159, 3.303 (2010).  

6.  The criteria for service connection for a mid-line abdomen surgical scar have been met.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6(a), 3.102, 3.159, 3.303 (2010).   

7.  The April 2001 RO rating decision that denied service connection for a right knee pain disorder became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

8.  New and material evidence has not been received to reopen service connection for a right knee pain disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010).

9.  The criteria for service connection for a nose condition have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6(a), 3.102, 3.159, 3.303 (2010).   

10.  The April 2001 RO rating decision that denied service connection for a carious No. 19 tooth and periodontal disease disorder became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

11.  New and material evidence has not been received to reopen service connection for a carious No. 19 tooth and periodontal disease disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010).
 
12.  The April 2001 RO rating decision that denied service connection for a cold weather injuries disorder became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

13.  New and material evidence has not been received to reopen service connection for a cold weather injuries disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010).

14.  The April 2001 RO rating decision that denied service connection for diabetes mellitus II disorder became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

15.  New and material evidence has not been received to reopen service connection for a diabetes mellitus II disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010).

16.  The April 2001 RO rating decision that denied service connection for a low blood pressure disorder became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).

17.  New and material evidence has not been received to reopen service connection for a low blood pressure disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 3.326(a) (2010).

a.  Duty to Notify.  VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The United States Court of Appeals for Veterans Claims (Court) held in Dingess v. Nicholson, 19 Vet. App. 473 (2006), that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include (1) the Veteran's status; 
(2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability.  The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  This notice must also inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id.

With regard to the issues of service connection for meningioma, claimed as growth in head, blemishes and scars on various parts of the body, and a nose disorder, other than service-connected chronic rhinitis, the November 2002 and June 2004 VCAA notices satisfied the provisions of 38 U.S.C.A. § 5103(a).  In these letters, the RO informed the Veteran about the information and evidence not of record that was necessary to substantiate his claims; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; but not the information required by Dingess.  As the Dingess notice was provided in June 2006, and after the initial adjudication of the claims, the claims were readjudicated in June 2010 Supplemental Statement of the Case.  

The United States Court of Appeals for Veterans Claims (Court) held that, in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the appellant that explains the meaning of both 'new' and 'material' evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  

Notice in compliance with Kent was provided in June 2004.  The RO advised the Veteran that it was working on his application for service-connected compensation for the claims of right knee pain disorder, carious tooth #19 with periodontal disease, cold weather injuries, diabetes mellitus II, and low blood pressure, and informed him that as the claims had been previously denied and the appeal periods had expired, he could reopen them by submitting new and material evidence.  The Veteran was notified of the meaning of "new evidence" and "material evidence" and was advised of the information needed to substantiate the underlying claims for service connection.  This letter also advised the Veteran of the information and evidence VA would obtain and of the information and evidence he was responsible for providing.  

With regard to the issues of entitlement to an increased disability evaluations for the GERD, chronic rhinitis, left foot , and migraine headache disabilities, VCAA notices dated in September 2002, December 2002, and June 2004 provided the Veteran such notice.  In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim.  The Board finds the duty to notify the Veteran in this case is satisfied.

b.  Duty to Assist.  The Board finds that all necessary assistance has been provided to the Veteran.  The evidence of record indicates that the VA acquired the Veteran's service treatment records, VA treatment records, private treatment records, and the underlying medical evidence from his application seeking disability benefits from the Social Security Administration, to assist the Veteran with his claims.  

In fulfilling the duty to assist for the four claims seeking higher disability evaluations, the Veteran was provided VA examinations in October 2002, March 2005, July 2007, and July 2009.  These listed examinations were thorough and productive of medical findings regarding the severity of the Veteran's GERD, chronic rhinitis, left foot disorder, and migraine headaches disabilities.  The Board finds these examinations legally sufficient.  

In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured.  See 38 C.F.R. § 3.159 (c)(4)(iii).  The Veteran was not afforded examinations in association with his petitions to reopen.  As discussed below, the Board concludes that new and material evidence has not been received on these claims regarding right knee pain disorder, carious No. 19 tooth and periodontal disease, cold weather injuries, diabetes mellitus II, and low blood pressure.  Accordingly, there is no duty to provide examinations.  See Id.  For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to these issues on appeal.

Finally, the Board is cognizant that the Veteran has not been afforded VA examinations with etiology opinions for claims of service connection for meningioma, claimed as growth in head, blemished and scars on various parts of body, and a nose disorder, other than the service-connected chronic rhinitis.  In this regard, in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4).

As will be discussed below, there is a complete lack of evidence linking any of these claimed disorders to an incident of service.  The medical evidence does not support this conclusion, and, for the described reasons, the lay evidence of record has no probative value.  Simply put, there is absolutely no reasonable possibility that a VA examination would result in findings, or an opinion, providing support to the Veteran's claims, given the evidence currently of record.  As such, a VA examination is not "necessary" in this case at to these claims, and no further development is required to obtain additional etiology information.  Id.

In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claims under consideration.  Adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993).


New and Material Evidence Legal Criteria

Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  
38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156 (2010).  "New" evidence means evidence "not previously submitted to agency decision makers."  38 C.F.R. § 3.156(a) (2010).  "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."  Id.

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 
3 Vet. App. 510, 513 (1991).

The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection.  Evans v. Brown, 
9 Vet. App. 273 (1996).  However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative.  Id.   

If new and material evidence is submitted, the claim will be reopened and adjudicated on the merits.  38 U.S.C.A. § 5108 (West 2002).  "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence has not been submitted.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  No other standard than that articulated in the regulation applies to the determination whether evidence is new and material.  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).


Claim to Reopen Service Connection for Right Knee Pain Disorder

Historically, service connection for a right knee pain disorder was denied by the RO in the April 2001 rating decision.  The RO viewed the service treatment records, which included that period considered honorable for VA purposes, from August 1980 to April 16, 1992, and that period considered dishonorable for VA purposes, from April 17, 1992 to January 1998.  There were no complaints about or requests for treatment for the right knee until September 1994 and the right knee arthroscopic surgery, following a diagnosis of chondromalacia of the right knee, was not performed until September 1995, all entirely within the period of dishonorable service.  The RO denied service connection in the April 2001 decision after determining there had been no injury or disease incurred regarding the right knee during the honorable period of service.  The Veteran did not appeal and so that RO decision became final.

Evidence submitted since the RO's April 2001 decision includes VA treatment records spanning October 2001 to 2010 from different VA medical facilities, the Veteran's lay statements over many, many years, a January 2003 lay statement from his mother, private physical evaluations dated 1997 through 1998, and then again in 2003, as part of Social Security disability benefits applications.  

After reviewing the record, the Board finds that new and material evidence has not been received in order to reopen service connection for right knee pain disorder.  The Veteran's many statements attributing his current and continuing right knee pain, status post arthroscopic surgery, to his service are not new, as that was the Veteran's claim originally.  His mother's January 2003 statement referenced very generally that she has seen the Veteran limping since his separation from service; however, while her statement was new, in that it had not been before decision-makers in April 2001, it was not material in that the statement provided no relevant evidence regarding the Veteran's right knee disorder and his period of honorable service and may be considered redundant to other evidence in the claims, in that the Veteran exhibited physical signs of pain in his right knee in during his period of service considered dishonorable for VA purposes.  A private orthopedic evaluation dated November 1997, as part of a Social Security disability benefits application, included the Veteran's reports about injuries to his right knee; therefore that November 1997 private orthopedic evaluation is new.  However, the Veteran described injuries that occurred to his right knee before entering active service in August 1980 and made no statement in that evaluation describing an injury to his right knee that occurred during the honorable period of service.  See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material).  As this evidence does not pertain to the basis of relationship to service that was the basis for the original denial of service connection, this private November 1997 orthopedic evaluation is also not relevant.    

While some of the evidence submitted is new, there is no material evidence, as the evidence does not relate to the Veteran incurring a right knee disability during the period of service considered honorable for VA purposes.  In essence, this evidence does not relate to unestablished facts necessary to substantiate the claim, so provides no reasonable possibility of substantiating the claim.  Consequently, the appeal to reopen service connection for a right knee pain disorder is denied.    





Claim to Reopen Service Connection for Carious No. 19 Tooth and Peridontal Disease, Cold Weather Injuries, Diabetes Mellitus II, and Low Blood Pressure 

Historically, the Veteran's claims seeking service connection for carious No. 19 tooth and periodontal disease, cold weather injuries, claimed as frostbite, diabetes mellitus, type II, and low blood pressure were denied by an April 2001 rating decision.  

In the April 2001 rating decision, the RO had considered the service treatment records, for both the period of time considered honorable for VA purposes and that period of time considered dishonorable for VA purposes, in addition to the service personnel records, which included numerous documents pertaining to his court-martial and discharge, the Veteran's lay statements, VA treatment records, private treatment records (dated 1998), and VA examinations afforded the Veteran in November 2000.  

The RO had denied service connection for the carious tooth and periodontal disease, finding that there was no complaint, diagnosis, or treatment for these disorders during the honorable period of service, that they were assessed only during the November 2000 VA examinations without evidence of any connection to that period of honorable service, and that gum disease was not a disabling condition per applicable VA regulations.  See (Class I service-connected dental conditions for which disability compensation may be provided, the types of dental conditions covered are loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease) 38 C.F.R. § 4.150 (though the rating decision cited 4.149), Diagnostic Code 9913; 38 C.F.R. § 17.161.    

The RO had denied service connection for cold weather injuries, finding that there was no complaint, diagnosis, or treatment for cold weather injuries, claimed as frostbite incurred in Germany during an exercise by the Veteran's lay statements, during the either the honorable or dishonorable periods of service.  In addition, the VA general medical examination afforded the Veteran in November 2000 did not conclude with any assessment of any cold weather injuries.

The RO had denied service connection for diabetes mellitus, type II, finding that there was not complaint, diagnosis, or treatment for diabetes mellitus, type II, to include any symptoms of the disorder, during the honorable period of service, or within one year of the end of the honorable period of service.  While the VA examination assessed diabetes mellitus in 2000, the Veteran had reported he was diagnosed in 1998.  As the Veteran's period of honorable service had concluded on April 16, 1992, the RO denied service connection, finding no relationship to service.  

The RO denied service connection for low blood pressure, finding that no clinician had assessed such a disorder during the honorable period of service, and that blood pressure screenings during both the honorable and dishonorable periods of service were normal.  Moreover, no VA examiner assessed such a disorder during the VA examinations afforded the Veteran in November 2000.  The RO denied service connection as there was no evidence such a disorder for which compensation could be awarded existed.

The Veteran was notified of the April 2001 rating decision; however he did not appeal and the decision became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.    

The evidence received since the April 2001 rating decision included volumes of VA treatment reports, lay statements from the Veteran and from his mother, private treatment evaluations, to include the underlying medical evidence from the Veteran's multiple Social Security disability benefits applications, and VA examinations afforded the Veteran for his service-connected disabilities. 

After a careful review of the volumes of evidence added since the April 2001 rating decision, the Board observes that the disorders of a carious No. 19 tooth, cold weather injuries, and low blood pressure are not even mentioned, let alone complained about to medical clinicians, or diagnosed or treated.  The Veteran has made general references to these disorders in his statements expressing his desire to see the claims processed, arguing again that they originated in service.  To any extent that these actual statements were not before the agency decision-makers in April 2001, these lay statements are new; however, these lay statements cannot be considered material because they repeat the Veteran's original statement, already well-documented in the record, that these disorders should be service-connected.  No evidence received after the April 2001 rating decision pertains to the basis of the denials of service connection, which was that there was no evidence of these disorders during the period of service recognized by VA as honorable.    
 
With regard to the disorders of periodontal disease and diabetes mellitus, type II the volumes of VA treatment reports contained continuing treatment for each of these disorders.  See March 2003, April 2003, May 2003, VA Dental clinic; September 2008 VA primary care intake (DM II); VA treatment reports 2001 to 2008.  To the extent these treatment records were not before the agency decision-makers in April 2001, these records can be considered new; however, these records are not material because they do not relate to the underlying basis for the denials of service connection.  In particular, the Veteran has been strikingly consistent in dating the onset of his diabetes mellitus to 1998 in his statements to medical clinicians throughout years of VA and private treatment reports in various locals.  Other than the Veteran's general lay statements that everything should be service-connected, there is no evidence in the documents added since April 2001 to the record that his diabetes mellitus has any relationship to his period of service considered honorable for VA purposes, which ended in 1992; therefore, these added volumes of evidence are not material.  

In addition, despite periodic VA treatment reports that the Veteran has gum disease, also called periodontal disease, this evidence is also not material, in that the original claim was denied by the April 2001 rating decision because there was no evidence this disorder was incurred in service and gum disease was not considered a disability for which VA benefits could be granted.  No evidence added to the claims file after the April 2001 rating decision attributed the gum disease to service or reflected a regulatory change.  

In essence, this evidence does not relate to unestablished facts necessary to substantiate the claims of carious No. 19 tooth, gum disease, cold weather injuries, diabetes mellitus II, and low blood pressure, and so, provides no reasonable possibility of substantiating the claims.  Consequently, the appeals to reopen service connection for carious No. 19 tooth, gum disease, cold weather injuries, diabetes mellitus II, and low blood pressure are denied.  


Legal Criteria for 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, 1131; 38 C.F.R. § 3.303(a).  Service connection requires 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).


Service Connection for Meningioma, Claimed as Growth in Head

The Board has reviewed the Veteran's service treatment reports for his period of service considered honorable for VA purposes.  There were no complaints or findings, or requests for treatment, or reported symptoms of a growth in the Veteran's head, later identified in May 2002 as a lesion, a small apparently extra-axial, enhancing tumor in the pterion region on the skull.  See May 2002 VA Brain Stem MRI, VA Sierra Vista medical system (Vol 2).  The service treatment records for the Veteran's period of service not considered honorable for VA purposes was also reviewed and in those records there was no report or complaint or request for treatment for such a lesion or tumor on the skull.  After a review of all the evidence of record, the Board finds that the Veteran did not experience a lesion or tumor on his skull, identified as meningioma, and claimed as a growth in the head, in that period of service determined to be honorable for VA purposes, or any chronic meningioma symptoms in service.    

The Board also finds that the Veteran did not experience continuous symptoms of meningioma post honorable period of service.  As referenced above, a lesion, or tumor on the skull was not identified by a brain stem MRI until May 2002.  The Veteran apparently knew about this lesion earlier, as he reported to a VA clinician in a July 2004 VA neurology evaluation that it had been revealed in 1999 as an "enhancing lesion" and that this lesion had been followed by periodic MRI's since that time, though the Board observes no such 1999 treatment report is of record.  (See Vol 3, VA Hines, Illinois VAMC neurology attending note).  The July 2004 VA clinician noted the lesion appeared to be a bone lesion.  In a September 2008 VA primary care intake at the Tucson VAMC, when the Veteran was initiating care at that facility, he reported that a "cable wheel" had broken in 1999 and he suffered head trauma as a result.  (See Vol 4).

The Board finds that the weight of the evidence demonstrates that the current meningioma or lesion on the skull is not related to service.  The Veteran himself identified this disorder and informed VA clinicians that it was the result of a 1999 accident, a broken cable wheel.  The Veteran is competent to report contemporary diagnoses that he receives, and so he was competent to report this aspect of his extensive medical history to VA clinicians.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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 Board finds that there is no credible evidence that the Veteran's meningioma disorder manifested itself during that period of service determined to be honorable for VA purposes, or indeed until years thereafter.  The Veteran's service treatment records for that period of service determined to be honorable for VA purposes contains nor reports or complaints regarding the Veteran's skull and the Veteran himself as dated the accident that was the onset of this lesion as occurring in 1999, years after the period of honorable service ended.  

In summary, the Board has found there were no chronic symptoms of a meningioma disorder, or a lesion on the skull in that period of service considered honorable.  In fact, no mention of such symptomatology appears to have been made at during that period.  Such contemporaneous history by the Veteran and contemporaneous clinical findings are highly probative that a meningioma disorder was not shown in that period of honorable service.  

Further, the claims file contains no competent medical evidence even suggesting a relationship between the currently-diagnosed meningioma or lesion on the skull and the Veteran's period of honorable service.  

Consequently, and based on this evidentiary posture, the Board finds that the preponderance of the evidence in this case is against the claim for service connection for a meningioma disorder, claimed as a growth in the head.  The benefit-of-the-doubt rule does not apply, and this claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


Service Connection for Blemishes on Both Arms, Also Claimed as Scars on Various Parts of the Body

The Veteran contends that he is entitled to service connection for what he referred to very broadly as blemishes on both arms, and as scars on various parts of his body.  See July 2001 statement, September 2002 statement (scarring on stomach, arms, feet, neck, knees, legs, and ankles).  

The Board has reviewed the service treatment records for the period of service determined to be honorable for VA purposes, and finds no reference, complaint, request for treatment, or assessment for "blemishes" on both arms or for scars on various parts of the Veteran's body, other than a March 1981 treatment entry wherein the service clinician described the midline abdomen scar that remained following the Veteran's February 1981 hernia repair.  Then, the scar was described as well-healed.  The March 1987 Report of Physical Examination noted that he was positive for a scar on his abdomen, and that he had a birthmark on his arm.  The December 1990 Report of Physical Examination also noted the abdomen scar, second to a hernia repair and a tattoo on the right arm, though the Board acknowledges that the handwritten notation is not entirely clear as to what the tattoo was.  That the Veteran has a surgery scar on his left foot following his service-connected bunionectomy is a symptom already included in his left foot service-connected disability.  That the Veteran has surgical scars on both knees were referenced in the service treatment records during that period of service determined to be not honorable for VA purposes, as he underwent knee surgery in both 1995 and 1996, and has been denied service connection for the residuals of those procedures.  After a review of all the evidence of record, the Board finds that the Veteran did not experience "blemishes" on his arms or scars over various parts of his body, other than those referenced on his abdomen and left foot in that period of service determined to be honorable for VA purposes, or any chronic blemish or scaring symptoms in honorable service.    

As a surgical scar was observed on the Veteran's abdomen in 1981, during a period of service determined to be honorable for VA purposes, as a result of an in-service hernia repair, service connection is warranted, and hereby granted, for that mid-line abdomen surgical scar.

The Board also finds that the Veteran did not experience continuous symptoms of blemishes and scars other than on his abdomen and left foot after his honorable period of service.  The Board notes that there is no objective evidence as to the onset date of the "blemishes" and other scars on the Veteran's body, and while the Veteran is clearly competent to report experiencing such blemishes, his statements are of little probative value, as they have little credibility.  The Veteran does not attribute them to any particular incident or disease in service, to include the honorable period of service, nor does he describe them, other than to very generally state that they should be service connected as resulting from service.  See Statements.  Further, these statements are contradicted in the objective record by volumes of VA and medical treatment reports that do not even mention the sight of something as memorable as the Veteran's arms covered with "blemishes" and a body riddled with scars.  His mother submitted a lay statement dated January 2003 (see Vol 2) in which she mentions "all the scars" on his arms and legs, yet she does not describe them, either in terms of shape, location, color, texture, or refer to an onset date beyond alluding to their appearance during the Veteran's military service.  As such, though she certainly is competent to report what she has seen, her statement has minimal probative value as she provided no information other than to refer to scars, many of which the Board was already aware. 

VA primary care evaluations dated April 2002 and June 2002 (See Vol 2, Vol 3), which contain evaluations of all of the Veteran's systems, have no mention of any complaint by the Veteran about blemishes and assorted scars, and no objective findings of any such disorder.  The September 2005 VA discharge summary, following an inpatient treatment period for the Veteran at VAMC Chicago includes the reference to multiple scabs and old scars on his arms, although the discharge summary from this facility (for psychiatric treatment) included no assessment of these old scabs and scars nor any history of their origin.  A September 2006 VA dermatology evaluation noted that the Veteran complained about dark patches on his face.  (See Vol 7).  The objective assessment noted to other blemishes or scars and found minimal hyperpigmentation in face skin creases.  As the first objective assessment in the record of what was called old "scabs" on the arms does not appear in the record until September 2005, the Board finds that the Veteran did not experience continuous symptoms of "blemishes" on his arms and assorted scars after his period of honorable service.  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for "blemishes" and scars on various parts of the Veteran's body, and that aspect of the claim must be denied.  However, the claim is granted with regard to a mid-line abdomen scar, which remained following in-service hernia repair surgery.  Because the preponderance of the evidence is against the claim for blemishes and other assorted scars, the benefit of the doubt doctrine is not for application with respect to this aspect of the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


Service Connection for a Nose Condition, other than the Chronic Allergic Rhinitis Already Service Connected

The Veteran claimed service connection for a "nose condition" on his February 2004 statement.  On no statement did the Veteran explain what this "nose condition" was.  A July 2001 statement by the Veteran listed nose polyps as a disorder; however the Board notes that nasal polyps are a symptoms considered by the rating criteria for the already service-connected chronic allergic rhinitis, for which the Veteran is already service-connected.  The appeal for an increased rating of that disability is discussed extensively in this decision.  The Board has reviewed his Mother's January 2003 statement, and she includes no reference to any particular nose disorder.  A review of VA primary care evaluations dated in April 2002 and June 2002 do not find any assessments of a nose disorder.  

Service connection may only be granted for a current disability, regardless of the theory of service connection; when a claimed condition is not shown, there may be no grant of service connection, either direct or secondary.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  See Brammer, 3 Vet. App. at 225.  

As no nose disorder, other than the service-connected chronic allergic rhinitis, has been identified, the claim is denied.   



Legal Criteria for Increased Disability Evaluations

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 (1994); 38 C.F.R. § 4.2.  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

Disability Evaluation for GERD

The Veteran's service-connected GERD is currently evaluated as 10 percent disabling by analogy pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346.  The use of Diagnostic Code 7399 represents an unlisted disability that required rating by analogy to one of the disorders rated under 38 C.F.R. § 4.114.

Under Diagnostic Code 7346 for hiatal hernia, a 10 percent evaluation is warranted when the evidence shows two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of the veteran's health.  A 60 percent evaluation contemplates a level of impairment, which includes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

For purposes of evaluating conditions in Section 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  See 38 C.F.R. § 4.112.

Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, are not to be combined with each other.  Instead, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

The Veteran has been afforded several VA examinations to determine the severity of the GERD disability.  The October 2002VA examination report concluded that the Veteran's GERD was mild after the Veteran reported weight fluctuation, that he was taking medication (Rebeprazole), and that his appetite was good, though he was nauseous all the time.  He also reported no vomiting.  The physical examination of the abdomen was normal.  In August 2003 he reported to his VA clinician that his recent bout of gastroentitis was resolving, to include the diarrhea.  The March 2005 VA examination included the Veteran's report that he had gas in his stomach daily, that was unrelated to food.  His daily medication did not provide much relief.  Though the Veteran's stomach was irritable and he took two meals a day, his weight was 172, though it had varied in the past from 180 pounds to 116.  The VA examiner observed he had no real history of heartburn and the VA treatment records reported many complaints, but few were related to his stomach.  The Veteran reported that there was no nausea or vomiting, though hiccups could have episodes that lasted for days.  He also reported burping.  Upon the physical examination, the examiner found some tenderness in the epigastric area and the stomach appeared gaseous.  

In July 2007 the Veteran was afforded another VA examination to determine the severity of his service-connected disabilities.  The Veteran complained his stomach was continually tight.  He attributed gagging, choking, and vomiting to this disability; however the VA examiner noted he also attributed those symptoms to other service-connected disabilities, yet he had denied any nausea and vomiting in a recent March 2007 VA evaluation.  He also reported that his appetite was poor and he had lost weight; however the VA examiner noted his weight in March 2007 was 184 pounds and that his weight as of the July 2007 VA examination was 178 pounds, which was only a 6 pound difference.  The objective examination of the abdomen demonstrated a rigid abdomen from marked guarding, such that it was difficult to assess which area was uncomfortable.  While the Veteran described severe pain, the VA examiner noted he appeared quite comfortable prior to the examination and after it had concluded.  

Intervening VA treatment reports contain few references to the Veteran's GERD, other than refilling his prescription.  In September 2008 he initiated VA care at the Tucson VAMC and denied abdominal pain or bloody stools.  In December 2008 he denied abdominal pain again the clinician found the abdomen non-tender; the VA clinician found his GERD to not be controlled on Zantac, and so he was switched to Ranitidine.

Finally, the Veteran was afforded a VA examination in July 2009.  The Veteran reported recurring reflux symptoms that kept him nauseous, though he denied vomiting.  He took medication twice a day.  Greasy foods increased those symptoms.  Occasionally there was reflex into his mouth.  There was no pyrosis, though he did complain of diffuse abdominal pain.  There was no arm pain and no substernal pain.  He had never been hospitalized and he denied any surgery.  Upon objective examination there was diffuse pain in all four quadrants of the abdomen.  His weight was stable.   

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.  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 latter 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470, see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  He is not, however, competent to identify a specific level of disability to his GERD according to the appropriate diagnostic codes.  On the other hand, such competent evidence concerning the nature and extent of the Veteran's GERD has been provided by medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.

The Board finds that the 10 percent disability evaluation remains appropriate.  The Board notes that the Veteran's disability has been shown to be no more than moderate, with some evidence of reflux in July 2009 but with no symptoms, other than some pain, shown to be consistently occurring on a daily basis.  The Veteran has never reported heartburn or pain in his arm or substernal area.  His weight has also remained fairly stable.  Bouts of diarrhea, attributed to gastroenteritis, were reported as resolving in 2003.  In short, the evidence does not support an evaluation in excess of 10 percent for GERD, and the claim for that benefit must be denied.  See 38 C.F.R. §§ 4.3, 4.7.

The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by the holding in Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board has found no section that provides a basis upon which to assign a higher disability rating for the GERD disability.  Further, the Board has considered the possibility of staged ratings.  However, the evidence does not support staged ratings at any time during this appeal.


Increased Disability Evaluation for Chronic Allergic Rhinitis

The Veteran contends that a compensable rating is warranted for his chronic allergic rhinitis, with the appearance of a left concha bullosa.  

38 C.F.R. § 4.97, Diagnostic Code 6522, pertaining to allergic rhinitis, provides a 10 percent evaluation for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side.  A maximum 30 percent rating is assigned for allergic or vasomotor rhinitis with polyps.  Diagnostic Code 6522 does not provide specific criteria for a zero percent evaluation, therefore a noncompensable rating is assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

During the October 2002 VA examination, the Veteran denied taking any medication and reported no complaints to the examiner.  The examiner assessed that the allergic rhinitis as not currently active and noted that the plain computed tomography (CT) scan of the head was normal.  In September 2004 the Veteran underwent a private internal medicine evaluation, as part of a disability claim.  The private examiner noted his review of some VA treatment reports that listed various disorders being followed, but rhininitis was not listed.  The Veteran had no respiratory difficulty and the nose presented no abnormalities.

By the March 2005 VA examination, the Veteran reported many symptoms.  He complained the right nasal passage was continually clogged, and the left side ran (for many years).  The VA examiner observed a yellow-ish watery discharge from the left nasal passage.  The Veteran reported that it occasionally had blood.  He denied any treatment, to include antibiotics.  His speech was not impaired and he denied any surgery.  On examination, there was partial obstruction of the right nasal passage.  An enlarged nodule was over the turbinate on the right side that was red.  However, frontal and maxillary sinuses were nontender, the pharynx was not congested and the left nostril had free flow of air.  The examiner assessed rhinitis.  In June 2005 the Veteran sought treatment for clogged sinuses, but reported they were clogged for the previous few days.

In March 2007, the Veteran initiated care at the Minneapolis VAMC.  He denied any nausea or vomiting.  The clinician noted nasal congestion and began him on nasal steroids.  In July 2007, the Veteran was afforded another VA examination and the report included the Veteran's complaints of continual problems with nasal congestion, breathing through his nose, puffy and red eyes, and even nausea, vomiting, gagging, and choking which the Veteran attributed to his allergies and reported had been ongoing for years.  The VA examiner noted a recent March 2007 VA evaluation in another VA clinic in which the Veteran denied nausea and vomiting and did not report any severe or even active allergy symptoms.  An objective examination of the head and nose revealed no redness, warmth, or swelling, even with regard to the eyes.  The external nose appeared normal.  There was some tenderness to palpitation over the left maxillary sinus, and some lesser discomfort over the right maxillary sinus.  The examiner assessed only an allergic condition.         

In an October 2008 VA emergency room report, the Veteran denied nasal congestion or discharge or a sore throat.  

In July 2009 the Veteran was afforded a VA examination.  The examiner noted that wherever he touched the Veteran, he complained of pain and tenderness.  The Veteran did complain of coughing, sneezing, and rhinorrhea.  He had been prescribed an antihistamine, but he had not used it since June.  He could not remember the last sinus infection.  There was no effect on his speech and no purulent discharge.  The nasal passage was clear and he could breathe through his nose.  The nasal mucous membranes were normal, and the passage greater than 50 percent clear.  There was no sinus tenderness specifically.  Tympanic membranes were normal.  

The Board notes the last treatment report that objective confirmed congestion of any sort was in March 2007, and that since that time two VA examinations found his nasal passages clear with no congestion.  Polyps were not found on any examination.  Though the Veteran presented a litany of symptoms during VA examinations, the Board could not find any such list of complaints during his very frequent VA evaluations and consultations for other disorders in the voluminous record.  The Board finds a compensable evaluation is not warranted.  
Moreover, a rating in excess of 10 percent is not warranted under this diagnostic code as the record is entirely negative for evidence of nasal polyps at anytime during the claims period.

The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none.  The Veteran has not been diagnosed with sinusitis and has not been found to have experienced under Diagnostic Code 6513 one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, such to warrant a 10 percent evaluation.  An increased rating is therefore not warranted under Diagnostic Code 6513 for sinusitis.

The Board has also determined that Diagnostic Codes 6523 and 6524 pertaining to bacterial and granulomatous rhinitis are not for application in this case.  The Veteran's rhinitis was repeatedly characterized as allergic in nature by the VA examiners.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.


Increased Disability Evaluation for Left Foot, Status Post Bunionectomy

Under Diagnostic Code 5284, moderate residuals of a foot injury warrants a 10 percent rating.  Moderately-severe residuals of foot injuries warrant a 20 percent rating, while a 30 percent rating requires severe residuals.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  As Diagnostic Code 5284 does not provide for a zero percent evaluation; therefore a noncompensable evaluation is assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.71a, Diagnostic Code 5280.

The Veteran was afforded a VA examination in October 2002.  The examiner noted the Veteran reported being in pain in his left foot constantly and that his big toe was stiff.  Yet, the examiner observed the Veteran was not limited in his motion or movements and walked without a limp.  The non-tender surgical scar was well-healed.  He had full range of motion of the left great toe without limitation, indeed the Veteran could walk without difficulty.  He could also fully dorsiflex and plantar flex the left foot.  See also June 2002, VA primary care evaluation, pain in right foot, no complaint about left foot.  While the Veteran was afforded a VA examination in March 2005, with the acknowledgement by the VA examiner that he was to examine the left foot, the VA examination report indicates that the Veteran instead complained about the right foot, and the VA examiner reached no findings about the left foot.  This silence is in keeping with the Veteran's VA treatment records.  In June 2005 he initiated care at the Minneapolis VAMC, and while he complained of pain that was 10/10, he did not mention the left foot as the source of the pain, but other disorders.  Another June 2005 treatment report noted the general complaint of chronic pain all over his body.  

In April 2006, the Veteran had a podiatry assessment, which noted he had had diabetes type II for years and that he complained of constant pain along the bottom of both feet, that felt like pins and needles.  For the left foot, sensation was intact to the level of the digits.  The Veteran also complained of pain shooting from the right foot through the right leg.  In June 2006, the Veteran sought medical treatment after a motor vehicle accident, complaining he felt pain in his left foot whenever he stepped on it. 

In July 2007, the Veteran was afforded another VA examination.  Again the Veteran reported a great deal of pain in the left foot, which he attributed to nerve pain that shot through his whole body.  The Veteran endorsed pain, weakness, swelling, fatigability, tenderness, instability, and painful motion.  He did not wear special shoes, though orthotics had been ordered for him.  He did not use shoe inserts or a brace for the left foot.  He did use a cane all the time, though he attributed the use of the cane to his back, knee, and foot.  (While the Veteran attributed two surgeries to "this" foot, the Board observes the June 2005 VA primary care evaluation noted the Veteran's history of two surgeries on the right foot, which is not service-connected.)  The Veteran took pain medication and attributed his inability to walk more than a block to the left foot.  Upon objective examination, the Veteran walked with a normal gait.  The left foot had no redness, warmth, or swelling.  There was tenderness to palpitation over the great toe and over the first metatarsophalangeal joint.  There was also mild tenderness along the medial edge of the arch of the foot.  There was normal strength.  There was the sensation of pins and needles along the great toe, though peripheral pulses were intact.  An x-ray study found mild associated degenerative changes.  The impression was moderate hallux valgus.  With regard to "Deluca" questions, the VA examiner did not anticipate a loss of range of motion.  

In September 2008 and October 2008, the Veteran initiated care at the VA medical facilities in the Tucson, Arizona system.  He did not complain about left foot pain, but attributed his complaints of pain and use of a cane to his back, following multiple motor vehicle accidents, and to his right knee.  In December 2008, he underwent a pain inventory and was given another diabetic foot examination.  The Board observes the Veteran has been diagnosed with diabetes mellitus, type II, for years and that disorder is not service-connected.  During this examination his left foot appeared visually normal, the pedal pulse was palpable, the following a monofilament test, the left foot sensory was intact.   

In July 2009 the Veteran was afforded another VA examination.  He reported tingling in the heel and ankle if he stepped wrong.  He also used an orthotic in dress shoes.  He experienced pain in his walking about twice a month.  His gait was normal and there was no abnormal weight bearing.  There was some tenderness with pressure over the first metatarsal phalangeal joint.  There was no crepitus, heat, erythema, or effusion.  He did not complain of pain.  Flexion and extension was 0 to 5 degrees both ways and there was no loss of range of motion with repetition.  The assessment remained status post left foot bunionectomy.  

The Board finds that the mild degenerative changes noted (only) during the 2007 VA examination together with the apparent limited range of motion noted during the 2009 VA examination sufficiently proximate moderate foot disability to warrant a 10 percent rating, effective July 11, 2007.   

Although the Veteran has complained periodically of pain in his left foot, the Board does not find that his orthopedic impairment has most nearly approximated a moderately-severe foot disability.  The left foot manifested full range of motion repeatedly until 2009, and even there was no decrease upon repetitive motion.  38 C.F.R. §§ 4.40, 4.45.  X-rays in 2007 also indicated the presence of only mild degenerative joint disease.  The Veteran retained active range of motion in the great toe at the 2007 VA examination.  The Board therefore finds that the orthopedic impairment from the Veteran's service-connected left foot disability approximates only a moderate disability from July 11, 2007, and does not approximate a moderately-severe foot injury and is appropriately rated.     

Increased Disability Evaluation for Migraine Headaches Disorder

38 C.F.R. § 4.124a, Diagnostic Code 8100 addresses migraines, including migraine headaches.  Under this section, migraine with less frequent attacks than the criteria for a 10 percent evaluation are rated as zero percent disabling.  Characteristic prostrating attacks averaging one in two months over the last several months are evaluated as 10 percent disabling.  A 30 percent evaluation contemplates characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent evaluation is assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

In October 2002 the Veteran complained about migraine headaches when he initiated care in a Chicago VA medical facility.  He did not report a frequency of the headaches or periods of incapacitation.  He was prescribed pain medication.  See also July and August 2002.  In September 2004, he underwent a private internal medicine evaluation for a disability application.  Here, too, he described the pain as a constant, pressure-like pain without reference to numerical periods of incapacitation. 

The March 2005 VA examination report noted the Veteran reported his headaches were more on the right side of the head, though they could be over the entire head.  When he took his pain medicine, the pain was 9 out of 10, constantly, everyday, all day, for the previous 14 years.  Bright light worsened the pain, so he preferred darkness.  The Veteran did not report any episodes of incapacitations or aura.  The examiner noted the tender lesion over the right forehead.  The assessment was headaches.  

A September 2005 VA discharge summary from an inpatient stay regarding an acquired psychiatric disability noted his complaint of migraine headaches, without details as to the symptoms.  A November 2005 evaluation recorded the Veteran's complaint that the migraines were almost daily.  

On May 3, 2006, the Veteran had a neurology consultation.  (See in Vol 7 of the record).  The clinician noted his report of his history of headaches becoming worse over the years.  Again it would begin on the right and then spread over to the left side.  There would be throbbing, pulsating, photo/phonophobia, with pain at a severity of 9/10.  This would be relieved by rest in a dark room 2 to 3 times in a week.  The clinician commented the headaches sounded migranous.  Yet, in March 2007, he initiated care at the Minneapolis VAMC and the Veteran did not report headaches of a problem at all. 

The VA examination afforded the Veteran in July 2007 evaluated his headaches.  He described the headache as constant, and made worse by exposure to bright light and noise.  He took Vicodin and Zomig.  He estimated that when he was home, he would lay down "75%" of the time due to headaches and that he rarely went outside.  The headaches interfered with activities of daily living.  MR scan of the brain itself was unremarkable, though the examiner noted the MR study of the brain in July 2005 was remarkable for a boney mass on the right temporal bone, that was consistent with fibrous dysplasia, that was unchanged since 2004.  

In a September 2008 primary care intake examination, for the Veteran to establish care in Arizona, the Veteran reported he had had head trauma in 1999 (cable wheel broke) and that from this he experienced migraine headaches.  (The Board observes that this statement appears to contradict the objective record, as the Veteran has been service-connected for migraine headaches since June 1998, that he had complained throughout his period of honorable service (which ended in 1992) and that migraine headaches were assessed in 1995.)  They occurred twice a week; he was photo-sensitive and would have to go to a dark room to decrease stimuli.  In a VA primary care evaluation in October 2008, the Veteran again reported the pain of his headaches was always present, at a low level.  See also January 2009 VA treatment.  

In March 2009 the Veteran had a neurology consultation.  He wore sunglasses throughout the consultation, complaining about migraines that now occurred three to four times a week, though worse in allergy season.  The flare-ups would last hours to a few days, though the Veteran did not report being incapacitated.  The Board observes that in no other medical appointment did the Veteran wear sunglasses.  

In July 2009, the Veteran underwent the final VA examination in the record.  Once again he reported the headache sensation as a band that applied pressure on the sides of the head.  He estimated the headaches to be present 60 to 70 percent of the time and that three times a week the headaches would be so bad that he would have to lie down for two to three hours, though occasionally all day.   

While the Board acknowledges that the Veteran's descriptions of his migraine headaches have not been entirely consistent, and were frequently contradicted by later examinations and evaluations in which the Veteran reported no pain or no headaches at all.  Nonetheless, giving him the benefit of the doubt, the Board finds that as of the VA neurological consolation on May 3, 2006, the Veteran's symptoms sufficiently approximated the criteria for a 10 percent disability rating.  For the first time in the record, the Veteran quantified his migraine headaches to a pattern the VA clinician recognized as that of a migraine.  Here he described 2 to 3 times a week that required him to rest in a dark room.  This description sufficiently approximates the criteria for a 10 percent, and no higher evaluation, for characteristic prostrating attacks averaging one in 2 months over the last several months.  Indeed, in 2007, the Veteran's descriptions varied from not mentioning that headaches were an issued for him in March 2007, to describing them in the VA examination of July 2007, as of such a severity that he "rarely" went outside.  After having reviewed the volumes of medical evidence and multiple statements made by the Veteran to his examiners and clinicians over the course of the record, the Board finds difficult to believe that he "rarely" went outside in 2007.   

Finally, the Board finds that the evidence of record has consistently shown that the Veteran's migraine headaches were sufficiently productive of characteristic prostrating attacks averaging no less than once a month over the last several months to warrant the 30 percent rating as of July 23, 2009, the date of the last VA examination of record.  In that examination the Veteran reported now three headaches per week that necessitated him laying down for two to three hours for each attack.  The Board will not disturb that increased rating as of July 23, 2009, and notes that the record has no evidence of headaches to the severity of being very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  The Board therefore finds that the 50 percent evaluation is not warranted.    

Overall, the evidence supports an evaluation of 10 percent, effective May 3, 2006, through to July 23, 2009, but no higher, and so the appeal to that extent is granted.  However, the evidence supports the 30 percent disability evaluation already in effect from July 23, 2009, but not more, for migraine headaches.  To that extent, the appeal is denied.  38 C.F.R. §§ 4.3, 4.7.

Extraordinary Consideration

Finally, the Board has considered whether there is evidence showing that the Veteran's service-connected disabilities should be referred for assignment of an extraschedular rating.  The record does not show that these service-connected disabilities have markedly interfered with his employment status beyond that interference contemplated by the assigned rating, and there is also no indication that these disabilities has necessitated any, let alone, frequent, periods of hospitalization during the pendency of this appeal.  In the absence of an unusual disability picture such as one involving marked interference with employment or frequent hospitalization, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Furthermore, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation).  As the Board has already remanded that issue to the RO to adjudicate in light of the evidence of the grant of disability benefits by the Social Security Administration for disorders that are not service connected, the Board will not comment further on this issue.  


ORDER

Entitlement to a disability rating in excess of 10 percent for GERD for any period on appeal is denied.  

Entitlement to a compensable rating for chronic allergic rhinitis during any period on appeal is denied.

Entitlement to a compensable rating for the Veteran's left foot status post bunionectomy prior to July 11, 2007, is denied and entitlement to a 10 percent rating thereafter is granted.  

Entitlement to a compensable evaluation for migraine headaches disability prior to May 3, 2006 is denied, and entitlement to a 10 percent rating thereafter is granted; however, entitlement to an evaluation in excess of 30 percent from July 23, 2009, is denied.   

Service connection for meningioma, claimed as growth in head, is denied.

Service connection for a mid-line abdominal scar is granted.

Service connection for blemishes on both arms and scarring on otherwise various parts of the body is denied.

As new and material evidence has not been received, the appeal to reopen service connection for right knee pain disorder is denied.

Service connection for a nose disorder is denied.

As new and material evidence has not been received, the appeal to reopen service connection for carious tooth No. 19 and periodontal disease disorder is denied.

As new and material evidence has not been received, the appeal to reopen service connection for cold weather injuries is denied.

As new and material evidence has not been received, the appeal to reopen service connection for diabetes mellitus II is denied.

As new and material evidence has not been received, the appeal to reopen service connection for a low blood pressure disorder is denied.


REMAND

Upon a complete review of the claims file, the Board notes that the Veteran originally submitted a claim seeking service connection for the following issues: contusion to the left 6th to 8th ribs (claimed as rib pain), medical counseling due to alcohol dependency, right foot hallux valgus, right elbow pain, sleep disorder, recurrent otalgia, left elbow strain, arthritis of the right and left hands, thyroiditis, and claustrophobia; however the RO denied service connection for these disorders in the first rating decision in the claims file, mailed to the Veteran in April 2001.   

In his February 2004 statement, itself a notice of disagreement to the previous March 2003 rating decision, the Veteran again listed these issues.  That these disorders were now being adjudicated as new claims was acknowledged by the RO, which listed them in the June 2004 VCAA notice.  They were denied in the May 2005 rating decision, to which the Veteran responded with the June 2005 notice of disagreement, and then readjudicated in the June 2006 Statement of the Case.  Upon the Veteran's submission of the substantive appeal in August 2006, the appeals for these issues were perfected and they were now under the purview of the Board.  Yet, in a July 2009 notice to the Veteran, the RO informed him that his inclusion of these issues in the February 2004 notice of disagreement was too late, as the appeal period for the April 2001 rating decision had closed, and so these issues were not on appeal.  In light of the procedural history just outlined, the Board finds that these issues are on appeal, and indeed, their appeal had been perfected in August 2006.  As the last adjudication that included these issues was the June 2006 Statement of the Case, the Board will remand these issues, specifically service connection for contusion to the left 6th to 8th ribs (claimed as rib pain), medical counseling due to alcohol dependency, right foot hallux valgus, right elbow pain, sleep disorder, recurrent otalgia, left elbow strain, arthritis of the right and left hands, thyroiditis, claustrophobia, and retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6 for a Supplemental Statement of the Case.

In addition, the RO denied TDIU for the Veteran in its May 2005 rating decision, with which the Veteran disagreed in the June 2005 notice of disagreement.  The RO included the issue of TDIU in its June 2006 SOC and the Veteran perfected the issue in his August 2006 substantive appeal.  Despite the addition to the record of the Veteran's Social Security disability benefits application and positive determination (albeit for the non-service connected affective disorder and disorders of the back), the issue of TDIU was not included in any subsequent SSOC (February 2010 and June 2010).  The Board will therefore also remand the issue of entitlement to TDIU for appropriate readjudication.

Moreover, as noted in the Introduction, in its April 2003 rating decision, the RO denied service connection for low back pain, finding that new and material evidence had not been received.  The Veteran disagreed in the February 2004 notice of disagreement, and the RO acknowledged that the issue remained on appeal by listing the issue in a June 2004 VCAA notice letter.  As the Veteran issued a notice disagreeing with the RO's decision within the required time period, indicating his disagreement with the denial of reopening his claim for service connection for a low back disorder, the Board finds that this issue must be returned to the RO for the issuance of a Statement of the Case and any further necessary development, as the issue was not included in the June 2006 SOC.  See Manlicon v. West, 12 Vet. App. 238 (1999).  As the issue of entitlement to service connection for an upper lumbar disorder and a disorder characterized by loss of feeling on right side of body are inextricably intertwined with the issue of entitlement to service connection for a low back disorder, the Board will defer any decision with respect to this claim pending the completion of the action requested with respect to the claim for service connection for a low back disorder.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  Similarly, the Board will defer any decision with respect to the issue of entitlement to service connection for chronic cervical pain-on-motion with trapezius strain, claimed as shoulder pain, pending the completion of the action requested with respect to the claim for service connection for retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6.  Id.  

Finally, with respect to the claim for service connection for an acquired psychiatric disorder other than severe depression, claimed as psychological problems, to include adjustment disorder, paranoid traits, dissociative disorder related to military abuse and false charges, bipolar disorder, anxiety disorder, stress and panic attacks, the record has additionally raised the issue of entitlement to service connection for these disabilities as secondary to service-connected migraine disability and the Veteran's claimed low back disorder (See December 2008 VA preventative medicine note, pain inventory).  Consequently, since VA is required to consider all theories of entitlement to service connection that are raised by the record, the Board finds that any decision as to this claim must be deferred until such time as the RO/AMC has adjudicated the subject claim based on the other theories of entitlement that have been raised by the evidence of record.  As the issue of entitlement to service connection for severe depression is found to be inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder other than severe depression, the Board will defer its review of this claim pending the completion of the development of the claim for service connection for an acquired psychiatric disorder other than severe depression.  Id.  

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should issue the Veteran and his representative a Statement of the Case (SOC) on the issue of entitlement to a low back disorder.  The Veteran should also be advised that, for the Board to have jurisdiction in the matter, he must file a timely substantive appeal responding to the SOC for a low back disorder.  Should the Veteran or his representative submit a timely substantive appeal, the matter should be returned to the Board for appellate review.

2.  Readjudicate the Veteran's claims for service connection for contusion to the left 6th to 8th ribs (claimed as rib pain), medical counseling due to alcohol dependency, right foot hallux valgus, right elbow pain, a sleep disorder, recurrent otalgia, left elbow strain, arthritis of the right and left hands, thyroiditis, claustrophobia, upper lumbar disorder, a disorder characterized by loss of feeling on the right side of the body, chronic cervical pain-on-motion with trapezius strain, claimed as shoulder pain, retrolisthesis of C2 in relation to C3 with mild loss of intervertebral disc space height at C3-C6, an acquired psychiatric disorder other than severe depression, claimed as psychological problems, to include adjustment disorder, paranoid traits, dissociative disorder related to military abuse and false charges, bipolar disorder, anxiety disorder, stress, panic attacks, and severe depression, to include as secondary to service-connected migraines and low back disability, and for TDIU, and if the benefits sought are not granted, the Veteran and his representative should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs