Citation Nr: 1129247	
Decision Date: 08/09/11    Archive Date: 08/16/11

DOCKET NO.  08-16 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial compensable evaluation for anemia.

2.  Entitlement to an effective date earlier than August 25, 2006, for anemia.
	
3.  Entitlement to service connection for second degree burn of the right hand.

4.  Entitlement to service connection for a left fifth toe fracture.

5.  Entitlement to service connection for granulomatosis disease.

6.  Entitlement to service connection for fibrocystic breast disease.

7.  Entitlement to an effective date earlier than August 25, 2006, for left knee disability.

8.  Entitlement to an effective date earlier than August 25, 2006, for sinusitis.

9.  Entitlement to an effective date earlier than August 25, 2006, for right shoulder disability.

10.  Entitlement to an effective date earlier than August 25, 2006, for left knee scarring.

11.  Entitlement to an effective date earlier than August 25, 2006, for cervical strain.

12.  Entitlement to an effective date earlier than August 25, 2006, for allergic rhinitis.

13.  Entitlement to an initial evaluation in excess of 30 percent cervical strain.

14.  Entitlement to a separate evaluation for mild incomplete neuralgia of the right upper extremity, as associated with the service-connected cervical strain.

15.  Entitlement to service connection for bladder and bowel incontinence associated with the service-connected cervical strain. 

16.  Entitlement to an initial evaluation in excess of 10 percent for left knee disability.

17.  Entitlement to an initial evaluation in excess of 10 percent for right shoulder strain.

18.  Entitlement to an initial compensable evaluation for left knee scar.

19.  Entitlement to an initial compensable evaluation for sinusitis.

20.  Entitlement to an initial compensable evaluation for allergic rhinitis.

21.  Entitlement to service connection for sleep apnea

22.  Entitlement to service connection for tinnitus.

23.  Entitlement to service connection for right elbow disability.

24.  Entitlement to service connection for pharyngitis.

25.  Entitlement to service connection for lumbosacral strain.

26.  Entitlement to service connection for septal deviation.

27.  Entitlement to service connection for residuals of tonsillectomy. 

28.  Entitlement to service connection for thoracic scoliosis.

29.  Entitlement to service connection for left shoulder disability.

30.  Entitlement to service connection for right knee disability.

31.  Entitlement to service connection for hypertension.

32.  Entitlement to service connection for right foot disability.

33.  Entitlement to service connection for vaginitis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and Dr. C.N.B.


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1978 to March 1990.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from May 2007, July 2007, August 2007, and December 2007 rating decisions of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO).

The May 2007 rating decision granted service connection for degenerative changes of the left knee and sinusitis, both evaluated as noncompensably disabling, effective August 25, 2006; deferred service connection claims for tinnitus, right foot injury, right shoulder injury, left shoulder pain, right elbow injury, second degree burn to right hand, pharyngitis, degenerative changes of the right knee, fractured left fifth toe, vaginitis, hypertension, sleep apnea, granulomatous disease, lumbosacral strain, cervical strain, rhinitis, anemia, and septal deviation; denied service connection for tonsillectomy residuals, scoliosis of the thoracic spine, and fibrocystic breast disease; and, denied entitlement to a 10 percent evaluation based on multiple noncompensable service connected disabilities.  

The July 2007 rating decision increased the initial evaluation for the left knee arthritis to 10 percent, effective August 25, 2006.  This rating decision also granted service connection for right shoulder strain, evaluated as 10 percent disabling, and left knee surgical scarring evaluated as noncompensably disabling, both effective August 25, 2006.  The noncompensable evaluation for sinusitis was continued.  The issue of service connection for sleep apnea was again deferred.  This July 2007 rating decision also denied service connection for cervical strain, rhinitis, anemia, septal deviation, tinnitus, right foot injury, left shoulder pain, right elbow injury, second degree burn to right hand, pharyngitis, degenerative changes of the right knee, residuals of a fractured left fifth toe, vaginitis, hypertension, granulomatous disease, and lumbosacral strain.

The August 2007 rating decision granted service connection for allergic rhinitis and anemia, both evaluated as noncompensably disabling, effective August 25, 2006; continued the 10 percent evaluation for right shoulder strain; denied service connection for sleep apnea; confirmed and continued the denials of service connection for septal deviation, degenerative changes of the right knee, and hypertension; and, deferred the issue of service connection for cervical strain.

The December 2007 rating decision granted service connection for cervical strain, evaluated as 30 percent disabling, effective August 25, 2006, and confirmed and continued the previous denial of service connection for lumbosacral strain.

The Veteran testified at a central office hearing before the undersigned Acting Veterans Law Judge in April 2011.  A transcript of the hearing is associated with the claims file.  Shortly after the hearing, she submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304.

The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  In this case, however, the record does not suggest, and the Veteran does not allege, that she is unemployable due to her service connected disabilities.  Indeed, the record shows that the Veteran is employed.  As such, Rice is inapplicable to this case.

The issue of entitlement to service connection for a bilateral hearing loss has been raised by the record, specifically during the April 2011 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for left shoulder disability, right knee disability, hypertension, a right foot disability, and bladder/bowel incontinence associated with the service-connected cervical strain 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.  At the April 2011 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal as to the issues of entitlement to an initial compensable evaluation for anemia, with an earlier effective date, and service connection for second degree burn of the right hand, left fifth toe fracture, granulomatosis disease, and fibrocystic breast disease.

2.  The Veteran's formal claim was received on August 25, 2006, and nothing in the record prior to the August 25, 2006, claim can be construed as an informal claim of entitlement to service connection for left knee disability, sinusitis, right shoulder disability, left knee scarring, cervical strain, and/or allergic rhinitis.

3.  The Veteran's cervical strain is characterized by pain and inconsistent limitation of motion, but not ankylosis.  Additionally, the Veteran's cervical strain has resulted in mild incomplete neuralgia of the right upper extremity.

4.  The Veteran's left knee disability is characterized by limitation of flexion (but in excess of 45 degrees) and pain, with no instability.

5.  The Veteran's right shoulder strain is characterized by full range of motion and  pain.

6.  The Veteran's left knee scar is small, and is without tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, hypopigmentation, or abnormal texture.

7.  The Veteran's sinusitis is characterized by up to six non-incapacitating episodes per year characterized by headaches, pain, purulent discharge, or crusting.

8.  The Veteran's allergic rhinitis is characterized by intermittent nasal congestion, without polyps and with less than 50 percent obstruction of the bilateral nasal passages and without complete obstruction on either side.

9.  The competent and credible evidence shows that the Veteran's sleep apnea is related to her military service.

10.  The competent and credible evidence shows that the Veteran's tinnitus is related to her military service.

11.  The competent and credible evidence does not show that the Veteran's right elbow disability is related to her military service; rather, the record shows in-service treatment with no demonstration of current disability.

12.  The competent and credible evidence does not show pharyngitis related to the Veteran's military service; rather, the record shows in-service treatment with no demonstration of current disability.

13.  The competent and credible evidence does not show lumbosacral strain related to the Veteran's military service; rather, the record shows in-service treatment with current complaints but no demonstration of current disability.

14.  The competent and credible evidence does not show septal deviation related to the Veteran's military service; such is not shown in service and the record fails to establish a current disability.

15.  The record does not identify any residuals of a tonsillectomy.

16.  The competent and credible evidence does not show that the Veteran's preexisting thoracic scoliosis was aggravated by her military service.

17.  The competent and credible evidence shows that the Veteran's vaginitis is related to her military service.



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of an initial compensable evaluation for anemia.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).

2.  The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of an earlier effective date for anemia.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).
	
3.  The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of service connection for second degree burn of the right hand.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).

4.  The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of service connection for a left fifth toe fracture.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).

5.  The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of service connection for granulomatosis disease.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).

6.  The criteria for withdrawal of a substantive appeal by the appellant have been met with respect to the issue of service connection for fibrocystic breast disease.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010).

7.  The criteria for an effective date earlier than August 25, 2006, for left knee disability have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010).

8.  The criteria for an effective date earlier than August 25, 2006, for sinusitis have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010).

9.  The criteria for an effective date earlier than August 25, 2006, for right shoulder disability have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010).

10.  The criteria for an effective date earlier than August 25, 2006, for left knee scarring have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010).

11.  The criteria for an effective date earlier than August 25, 2006, for cervical strain have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010).

12.  The criteria for an effective date earlier than August 25, 2006, for allergic rhinitis have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2010).

13.  The criteria for an initial evaluation in excess of 30 percent for cervical strain have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5237 (2010).

14.  The criteria for an evaluation of 20 percent, but not higher, for neuralgia of the right upper extremity associated with cervical strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Note 1, 4.124a, Diagnostic Code 8510 (2010).

15.  The criteria for an initial evaluation in excess of 10 percent, for degenerative changes of the left knee have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5010 (2010).
	
16.  The criteria for an initial evaluation in excess of 10 percent, for right shoulder strain have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5010 (2010).

17.  The criteria for a compensable initial evaluation for a left knee scar have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.118, Diagnostic Code 7802 (2010).

18.  The criteria for a 10 percent initial evaluation for sinusitis have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.97, Diagnostic Code 6513 (2010).

19.  The criteria for a compensable initial evaluation for allergic rhinitis have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.97, Diagnostic Code 6522 (2010).

20.  Sleep apnea was incurred in service.  38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010).

21.  Tinnitus was incurred in service.  38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010).

22.  A right elbow disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§ 3.303 (2010).

23.  Pharyngitis was not incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§ 3.303 (2010).

24.  Lumbosacral strain was not incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.303, 3.307, 3.309  (2010).

25.  Septal deviation was not incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§ 3.303 (2010).

26.  Tonsillectomy residuals were not incurred in or aggravated by service.  38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§ 3.303 (2010).

27.  Thoracic scoliosis was not incurred in or aggravated by service.  38 U.S.C.A. 
§§ 1111, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 3.303, 3.304, 3.306 (2010).

28.  Vaginitis was incurred in service.  38 U.S.C.A. §§ 1111, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Claims

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  See 38 C.F.R. §§ 20.202, 20.204(b) (2010).  Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant.  See 38 C.F.R. § 20.204(c).  

At the April 2011 hearing, the Veteran withdrew her claims on the issues of anemia, a second degree burn of the right hand, a left fifth toe fracture, granulomatosis disease, and fibrocystic breast disease.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to these issues and they are dismissed without prejudice.

Duties to Notify and Assist

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

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's increased evaluation and effective date claims arise from an appeal of the initial rating assignments following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA with regard to these issues.

Here, the Veteran was sent a letter in October 2006, with regard the majority of the service connection claims, and another letter in July 2007, with regard to the sleep apnea claim, that fully addressed all notice elements and was issued prior to the respective initial RO decisions.  The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

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

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, her statements in support of the claim are of record, including testimony provided at an April 2011 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Earlier Effective Date Claims

In a June 2008 statement, the Veteran has requested an earlier effective date back to the date of her car accident in 1979 for left knee disability, right shoulder disability, cervical strain, and allergic rhinitis.  She also requested an earlier effective date of 1994 for left knee scarring.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2).

The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within one (1) year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). 

In this case, the Veteran separated from active service in March 1990.  
She did not submit a claim of entitlement to service connection for right shoulder strain, left knee disability, left knee scar, cervical strain, or any other disability within one year of her discharge.  Therefore, assignment of an effective date back to the day following discharge is not possible.  Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 

The Veteran's claim of service connection for the above-noted disabilities was received on August 25, 2006.  In a May 2007 rating decision, the Veteran was granted service connection for left knee disability and sinusitis, both evaluated as noncompensably disabling, effective August 25, 2006.  In a July 2007 rating decision, the Veteran was service-connected for right shoulder strain, evaluated as 10 percent disabling, and surgical scarring on the left knee, evaluated as noncompensably disabling, both effective August 25, 2006.  This rating decision also increased the disability evaluation for left knee disability to 10 percent, effective August 25, 2006.  The August 2007 rating decision granted service connection for allergic rhinitis, evaluated as noncompensably disabling, effective August 25, 2006.  Finally, a December 2007 rating decision granted service connection for cervical strain and assigned an evaluation of 30 percent, effective August 25, 2006.  Thus, all of the Veteran's currently service connected disabilities have been assigned an effective date of August 25, 2006, the date her claim of service connection was received.
	
The Board has considered whether any evidence of record prior to August 25, 2006, could serve as an informal claim for any or all of these disabilities in order to entitle the Veteran to an earlier effective date.  In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155.  

In this case, the Veteran's August 25, 2006, formal claim also marks the beginning of her claims folder.  Not only is there no earlier-submitted evidence that can be construed as an informal claim for benefits, but there is no earlier-submitted evidence of any kind.  Thus, the Board finds no evidence indicating an intent to pursue a claim or claims of entitlement to service connection prior to the August 25, 2006, formal claim.

It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits.  However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable.  Here, the veteran's claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that her claim, be it formal or informal, of entitlement to service connection for left knee disability, sinusitis, right shoulder disability, left knee scarring, cervical strain, and/or allergic rhinitis was filed earlier than August 25, 2006. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993).  

In sum, the current effective date of August 25, 2006, is appropriate and there is no basis for an award of service connection for left knee disability, sinusitis, right shoulder disability, left knee scarring, cervical strain, and/or allergic rhinitis prior to that date.  Therefore, an earlier effective date is not warranted for any of these disabilities.

Cervical Strain Increased Initial Evaluation Claim

As noted above, the Veteran is service-connected for cervical strain, evaluated as 30 percent disabling, effective August 25, 2006.  She has appealed that initial evaluation.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In order to warrant the next-higher evaluation of 40 percent, the Veteran's cervical strain must be characterized by unfavorable ankylosis of the entire cervical spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237.  For VA compensation purposes, unfavorable ankylosis of the cervical spine is a condition in which the cervical spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5.  Fixation of the cervical spine in neutral position (zero degrees) is favorable ankylosis.  Id.

A November 2006 radiology report found minimal degenerative changes of the cervical spine.

A December 2006 radiology report found mild to moderate cervical spondylosis, most notably involving the C3-4 through C6-7 levels, marked left neuroforaminal stenosis at C3-4 secondary to herniated nucleus pulposus, and mild central canal stenosis at C4-5 through C6-7 levels.  At that time, the Veteran had extension of the cervical spine to 20 degrees, limited by stiffness.  She could side-bend to 20 degrees and had 45 degrees of rotation bilaterally.

In February 2007, the Veteran was diagnosed with cervical radiculopathy.  Records from May 2007 note radiating pain to her neck with numbness, tingling,  and radiation to right upper extremity.

In October 2007, the Veteran underwent a VA examination in conjunction with this claim.  At that time, she reported stiffness problems turning her head, dressing and reaching; limited range of motion; weakness in neck, shoulders, and arms; dropping items; worsened pain with cold, air conditioning, and rainy days; pain radiating to fingers; and, finger fatigue.  She also reported a history of incapacitating episodes requiring physician-recommended bed rest, with five incidents of incapacitation over the past year.  

Objectively, range of motion of the cervical spine was from zero to 15 degrees flexion; from zero to 15 degrees extension; from zero to 15 degrees lateral flexion, bilaterally; and from zero to 40 degrees lateral rotation, bilaterally, with pain beginning at the end of each range.  Pain was found to limit joint function after repetitive use, but fatigue, weakness, lack of endurance, and incoordination did not result in such limitation.  The additional limitation was zero degrees.  The examiner found no evidence of radiating pain on movement, muscle spasm, tenderness, or ankylosis.

In March 2010, the Veteran underwent another VA examination.  She complained of neck pain that radiated down her extremities.  She described the pain as constant and severe.  At that time, her range of motion for the cervical spine was within normal limits.  The examiner found no evidence of radiating pain on movement, muscle spasm, tenderness, guarding, weakness, loss of tone, or atrophy of the limbs.  The examiner found no ankylosis of the cervical spine.  Neurological examination found no sensory deficits from C3 to C6, no motor weakness, and no pathologic reflexes.  Upper extremity reflexes and cutaneous reflexes were normal, and there was no sign of cervical invertebral disc syndrome with chronic and permanent nerve root involvement.  There were no nonorganic physical signs.  Cervical spine x-ray findings were within normal limits.  

The range of motion findings detailed above do not support a 40 percent evaluation for cervical strain.  Specifically, the existence of any range of motion precludes a finding of ankylosis, much less the required unfavorable ankylosis.  The Board has also considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  In this regard, the Board acknowledges the Veteran's consistent complaints of pain.  However, despite her subjective complaints of persistent pain, the objective evidence of record does not show any additional functional limitation due to this pain that are tantamount to ankylosis, as required to achieve the higher 40 percent evaluation.  As such, a higher evaluation based on limitation of motion is not for application here.  38 C.F.R. § 4.71a, Diagnostic Code 5237.  For these reasons, the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent for the Veteran's cervical strain throughout the entirety of the rating period on appeal.  38 C.F.R. § 4.7.

Pursuant to 38 C.F.R. § 4.71a, Note 1, associated neurologic abnormalities are evaluated separately under an appropriate diagnostic code.  As such, the Board has also considered the extent of these symptoms.  In February 2007, the Veteran was diagnosed with cervical radiculopathy.  Records from May 2007 note radiating pain to right upper extremity with numbness and tingling and subjective sensory changes.  Moreover, in his November 2007 opinion, Dr. C.N.B. related the Veteran's subjective complaints of numbness and pain in her right elbow and arm to cervical radiculopathy.  The Veteran has described her upper extremity symptoms as pain and numbness.  As noted above, the March 2010 examination included a neurologic examination.  This examination did not find any associated neurologic symptoms.  Despite this, the Board finds the Veteran's account of right upper extremity pain, as evidenced in her statements and her treatment records, to be sufficient to warrant a separate 20 percent evaluation for mild incomplete neuralgia of the major upper radicular group, as the record indicates that the Veteran is right-handed.  While a 20 percent evaluation is deemed warranted, despite the consistent complaints of pain, the record does not indicate functional loss of the right upper extremity that is equivalent to moderate incomplete paralysis of this nerve.  Therefore, a 40 percent evaluation is not warranted.

While the treatment records repeatedly note complaints of neurologic symptoms in the right upper extremity, the record does not show similarly persistent complaints of left upper extremity pain and/or numbness in order to overcome the medical evidence against a finding of neurologic symptoms in the left upper extremity.  Indeed, although her complaints raised upon VA examination appeared to be bilateral in nature, the November 2007 letter from Disability rating. C.N.B. clearly emphasizes right-arm numbness.  Accordingly, no separate rating assignment is justified as to the left upper extremity.

The VA examination in March 2010 indicates some bladder and bowel incontinence associated with the Veteran's cervical strain.  Such will be addressed as a separate issue in the remand portion of this decision.  

In sum, the Board finds that, at no time during the pendency of this claim has the Veteran's cervical strain warranted an evaluation in excess of 30 percent.  See Fenderson, 12 Vet. App. 119.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Left Knee Disability Increased Initial Evaluation Claim

As noted above, the Veteran is service-connected for degenerative changes of the left knee, evaluated as 10 percent disabling, effective August 25, 2006.  She has appealed that initial evaluation.  See Fenderson, 12 Vet. App. 119.

Throughout the appeal, the left knee disability has been evaluated under Diagnostic Code 5010, which allows for rating of traumatic arthritis based on the same criteria as degenerative arthritis.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated either based on the limitation of motion of the affected joint based on x-ray findings.  Id.  Limitation of motion of the knee is evaluated under Diagnostic Code 5260 (for limitation of flexion) and Diagnostic Code 5261 (for limitation of extension).  See id.  If the criteria for a compensable rating under both these diagnostic codes are met, separate ratings can be assigned.  VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004).  Moreover, separate evaluations are available for separate symptoms, such as arthritis and instability of the knee.  See VAOPGCPREC 23-97.  Specifically, the VA General Counsel has held that when x- ray findings of arthritis are present and a veteran's knee disability is evaluated under Code 5257, the Veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in at least noncompensable limitation of motion.  See VAOPCGPREC 9-98 (August 14, 1998).

In June 2007, the Veteran underwent a VA examination in conjunction with this claim.  At that time, she complained of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, fatigability, and locking.  She also reported constant pain that she described as crushing, squeezing, burning, aching, oppressing, sharp, sticking, and cramping in nature.  She assessed her pain level as six out of ten in severity.  She reported that she could function during the pain with medication and that her left knee did not cause incapacitation.  

Physical examination revealed crepitus, but no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, subluxation, guarding of movement, recurrent subluxation, locking pain, or joint effusion.  Her range of motion was from 140 degrees flexion to 0 degrees extension, with pain beginning at 100 degrees flexion.  Range of motion was limited by an additional ten degrees due to pain, but no additional limitations were found due to fatigue, weakness, lack of endurance, or incoordination.  Stability testing yielded normal findings.

In his November 2007 letter, Dr. C.N.B. addressed the etiology of the Veteran's left knee disability but did not provide the results of a physical examination.

In March 2010, the Veteran underwent another VA medical examination.  At that time she complained of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, pain, and dislocation.  She also endorsed frequent flare-ups, associated with difficulty walking and standing.  Physical examination revealed crepitus and locking pain, but no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or genu recurvatum.  There was no ankylosis.  Range of motion was from 90 degrees flexion to 0 degrees extension, with pain beginning at 70 degrees flexion.  Range of motion was not additionally limited pain.  Stability testing was within normal limits for anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus.  There were no signs of subluxation.  The examiner noted that the Veteran limped and used a cane to walk.  The Veteran did not require a brace, crutches, corrective shoes, a wheelchair, prosthesis, or a walker.

The range of motion findings detailed above do not, on their face, support a compensable (10 percent) evaluation for either flexion or extension of the left knee.  Moreover, there is no showing of a compensable degree of disability as to both left knee flexion and left knee extension; thus a separate rating for each pursuant to VAOPGCPREC 9-2004 is not warranted.  The Board has also considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  In this regard, the Board acknowledges the Veteran's extensive subjective complaints; however, the objective evidence of record does not show any additional functional limitation due to pain.  As such, a higher evaluation based on limitation of motion is not for application.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.  

The x-ray evidence, such as the December 2000 radiology report, shows degenerative changes of the left knee.  The evidence does not show additional joint involvement.  There is no evidence of incapacitating exacerbations.  Thus, the rating criteria for a 20 percent evaluation for degenerative arthritis are not satisfied.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  For these reasons, the Board determines that preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the component of the Veteran's left knee disability characterized by limitation of motion.  38 C.F.R. § 4.7.

The Board will now turn to the question of left knee instability, which is evaluated under Diagnostic Code 5257.  In order to qualify for a separate compensable (10 percent) evaluation for instability, the Veteran's left knee disability must be characterized by slight subluxation or lateral instability.  38 C.F.R. § 4.71a.  The Board notes that the terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  In this case, however, the objective evidence of record consistently indicates a stable left knee.  The Board acknowledges the Veteran's report of using a knee brace in the past, but there is no indication that such a device was required due to instability.  The Board also acknowledges her April 2011 hearing testimony, in which she described instances of her left knee giving out.  She is competent to report such lay-observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994)
However, the incident noted occurred in 2002, prior to the rating period on appeal.  During the relevant period for consideration, the repeatedly normal objective findings are deemed to be the most probative evidence with respect to the stability of the left knee.  As such the criteria for a separate compensable evaluation for instability have not been met.  See VAOPGCPREC 23-97.

In sum, the Board finds that, at no time during the pendency of this claim for an increased rating, has the Veteran's degenerative changes of the left knee warranted an evaluation in excess of 10 percent.  See Fenderson, 12 Vet. App. 119.  In reaching this conclusion, the benefit of the doubt has been applied as appropriate.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56 (1990).  Accordingly, the appeal is denied.

Right Shoulder Strain Increased Initial Evaluation Claim

Throughout the rating period on appeal, the Veteran's right shoulder strain has been evaluated as 10 percent disabling pursuant to Diagnostic Code 5010.  
Again, that code section provides that arthritis established by x-ray findings will be rated either based on the limitation of motion of the affected joint based on x-ray findings.  38 C.F.R. § 4.71a.  Limitation of motion of the shoulder is evaluated under Diagnostic Code 5201 (for limitation of motion of the arm), with a 20 percent evaluation assigned for limitation of the arm to shoulder level.  See id.  

Private treatment records dated in October 2006 note the Veteran's complaints of right shoulder pain with radiation down the arm.  There was no numbness or weakness.

A November 2006 radiology report noted moderate degenerative changes of the acromioclavicular joint.

Records dated in December 2006 note complaints of right shoulder pain.  Active range of motion was within normal limits for all planes, with pain beginning at 90 degrees flexion.

In June 2007 the Veteran underwent a VA medical examination.  At that time she complained of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, and fatigability.  She did not have any dislocation.  She reported constant pain in the right shoulder, assessed at seven out of ten in intensity.  She could function during the pain with medication and her right shoulder did not cause incapacitation or any functional limitations.  Upon physical examination, there were signs of tenderness, but no signs of edema, effusion, weakness, redness, heat, abnormal movement, guarding of movement, or subluxation.  The right shoulder exhibited full range of motion with extension to 180 degrees; abduction to 180 degrees, with pain at 180 degrees; external rotation to 90 degrees, with pain at 80 degrees; and internal rotation to 90 degrees.  Range of motion was limited by an additional ten degrees due to pain and lack of endurance, with pain having the major functional impact, but no additional limitations were found due to fatigue, weakness, or incoordination.  The accompanying radiology report found no fracture or other significant bone, joint, or soft tissue abnormality.

In March 2010, the Veteran underwent another VA examination.  At that time, she complained of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, pain, and dislocation.  She reported flare-ups as often as five times per day, each time lasting for six hours with a severity of 4 out of 10.  During flare-ups, she reported functional impairment described as fatigue, weakness, limited range of motion, lack of endurance, and pain.  She reported six days of incapacitating episodes in 2007 for which she says Dr. D.T. recommended bed rest and 12 days of incapacitating episodes in 2007 for which she says Dr. B.H. recommended bed rest.  Upon physical examination, no ulceration, edema, stasis dermatitis, clubbing, or cyanosis was found.  Likewise, the right shoulder showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement.  There was no ankylosis.  The Veteran's range of motion for her right shoulder was full, and repetitive range of motion possible.  There was no additional degree of limitation.  X-ray findings were normal with no evidence of fracture or other significant bone, joint, or soft tissue abnormality.

The range of motion findings detailed above do not support a 20 percent evaluation for limitation of motion of the arm as they consistently indicate full range of motion.  The Board has also considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Even accounting for the pain described in the June 2007 examination, the Veteran's right shoulder motion is not limited to the point where it is tantamount to limitation of the motion of the arm at shoulder level.  Indeed, with repetitive movement, her motion was only 10 degrees short of normal.  Additionally, as noted above, the neurologic symptoms associated with cervical strain include neuralgia of the right upper extremity based on pain radiating down her right arm.  In this way, the Veteran's right shoulder pain has already been compensated.  To compensate her again for the same symptom would violate the rule against pyramiding.  See 38 C.F.R. §§ 4.14, 4.118.  As such, a higher evaluation based on limitation of motion is not available.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  

The radiologic evidence is inconsistent in this case, as the November 2006 report finding moderate degenerative changes of the acromioclavicular joint and the recent x-rays finding no abnormalities.  Regardless, the evidence does not show additional joint involvement.  Despite the subjective history provided by the Veteran regarding physician-recommended bed rest, the medical evidence of record does not reflect this.  To the extent that the record does contain some records from Dr. D.T. and Dr. H.H. from 2007, such do not reflect physician prescribed bed rest for this or any other condition.  Therefore, the Veteran's statements regarding this are not compelling and the Board does not find evidence of incapacitating exacerbations.  Thus, the rating criteria for a 20 percent evaluation for traumatic arthritis have not been satisfied.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  For these reasons, the Board determines that preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the Veteran's right shoulder disability.  38 C.F.R. § 4.7.

In sum, the Board finds that, at no time during the pendency of this claim for an increased rating, has the Veteran's right shoulder disability warranted an evaluation in excess of 10 percent.  See Fenderson, 12 Vet. App. 119.  In reaching this conclusion the benefit of the doubt has been applied as appropriate.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56 (1990).  Accordingly, the appeal is denied.

Left Knee Scar Increased Initial Evaluation Claim

The Veteran is also service0connected for left knee scar, evaluated as noncompensably (0 percent) disabling, effective August 25, 2006.  

It is noted that while the diagnostic criteria pertaining to scars were revised on October 23, 2008, such changes only apply for claims filed on or after that date and do not impact the present claim.  The Veteran's claim pre-dates October 2008 and she has not specifically requested consideration under the new criteria. Thus, all diagnostic codes discussed herein are the version in effect prior to October 23, 2008.

As the left knee scar clearly does not involve the head, face or neck, evaluation under Diagnostic Code7800 for disfigurement of the head, face, or neck is not warranted.  See 38 C.F.R. § 4.118.  

In order to warrant a compensable evaluation, the Veteran's scar must be characterized as deep (i.e., associated with underlying soft tissue damage) or cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) (Diagnostic Code 7801); superficial (i.e., one not associated with underlying soft tissue damage) that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); superficial and unstable (where, for any reason, there is frequent loss of covering of skin over the scar) (Diagnostic Code 7803); or superficial and painful on examination (Diagnostic Code 7804).  38 C.F.R. § 4.118.  All other scars are rated on limitation of function of affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805.

In June 2007, the Veteran underwent a VA medical examination.  That examiner found three level scars on the left knee, each measuring about 1 cm x .25 cm.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, hypopigmentation, or abnormal texture.

In October 2007, the Veteran underwent another VA examination in conjunction with this claim.  At that time, her three left knee scars were found to measure approximately .1 cm x .1 cm each.  The examiner found no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, or abnormal texture.

The Veteran underwent yet another VA medical examination in March 2010.  At that time she complained of pain, recurrent skin breakdown several times a week, inflammation, tissue loss, disfigurement, keloid formation, hyperpigmentation, abnormal texture, itching, and limitation of function.  However, physical examination found a superficial 2 cm x .2 cm scar that was not painful on examination, without skin breakdown or underlying tissue loss.  There was no inflammation, edema, keloid formation, disfigurement, or limitation of motion associated with the scar.  There was no limitation of function due to the scar.

Based on the evidence described above, the Veteran's left knee scar most nearly approximates the criteria for a noncompensable disability evaluation.  Despite her subjective complaints to the contrary, her scar has consistently been described by examiners as superficial and not deep, without associated limitation of motion.  Thus diagnostic code 7801 does not apply.  The total area affected is less than the 929 sq. cm. required for a compensable evaluation under diagnostic code 7802.  There was also no finding of instability or pain upon examination, thus a compensable evaluation under diagnostic code 7804 is not warranted.  Finally, there is no finding of associated limitation of function, thus a compensable evaluation under diagnostic code 7804 is not available.

As the evidence of record does not show any distinct time periods where the Veteran's left knee scar exhibited symptoms that would warrant a compensable evaluation, staged ratings are not warranted.  See Fenderson, 12 Vet. App. 119.

Sinusitis Increased Initial Evaluation Claim

The Veteran is also service-connected for sinusitis, evaluated as noncompensably (0 percent) disabling, effective August 25, 2006.  

Disability evaluations for sinusitis are evaluated under the General Rating Formula for Sinusitis.  See 38 C.F.R. § 4.97.  In order to warrant a compensable rating under the General Rating Formula, the Veteran's sinusitis must result in one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting.  Id.  An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  Id.

Private treatment records from A., H. and Associates from December 2006 to April 2007 note complaints of sinus congestion and associated headaches.  These records show two episodes over a four-month period.  These records further reveal that the Veteran sought a physician's treatment and prescription medication, but do not suggest that bed rest was required.  The Veteran was prescribed antibiotics (Septra DS) for these episodes.

In June 2007 the Veteran underwent a VA examination.  She reported eight occurrences of sinusitis per year, each lasting for one week.  During these attacks, the Veteran was not incapacitated.  She has associated headaches and required antibiotic treatment during attacks.  During such occurrences, she experienced interference breathing through her nose, and also had purulent discharge and hoarseness, but no shortness of breath.  There was no functional impairment due to this condition.  Her breath sounds were symmetric without rhonci or rales.  Expiratory phase was within normal limits.  An accompanying sinus x-ray found clear paranasal sinuses throughout with intact mucosal and bony margins.  This examiner found that the Veteran's sinusitis condition had resolved.

In her August 2007 subjective medical history, the Veteran reported that her sinusitis often resulted in her admission to the emergency room for treatment.  The evidence of record shows treatment for this condition, but no admissions to the emergency room.  She also reportedly required constant medication to control her sinus problems and indicated that she must avoid air travel as her nose became inflamed.

In March 2010, the Veteran was again examined by VA.  At that time, she reported episodes of sinus problems occurring six times per year and lasting one week each.  She further reported being incapacitated by these episodes as often as six times per year, with each incident lasting for ten days.  She reported headaches associated with her sinus episodes, and also had interference breathing through her nose, purulent discharge, hoarseness of voice, pain, and crusting.  She reported requiring antibiotic treatment lasting four to six weeks.  She reported that the bone condition was infected.  Objectively, the examiner found that the Veteran's sinusitis was in remission.  Specifically, the Veteran's head was normocephalic and atraumatic.  The tympanic membranes of the ear were intact.  The mucosa of the throat was intact.  There was no pharyngeal erythema or exudates.  There was no nasal obstruction, no deviated septum, no partial loss of the nose, no partial loss of the ala, no nasal polyps, no scar, no disfigurement, no rhinitis, and no sinusitis.  A sinus x-ray found the paranasal sinuses to be clear throughout with intact mucosal and bony margins.

At her April 2011 hearing, the Veteran reported symptoms including mucous that drained through her throat and recurrent treatment with antibiotics, three or four times a year.  She stated that she controlled her symptoms with constant medication.

Based on the evidence described above, the Veteran's sinusitis most nearly approximates the criteria for a 10 percent disability evaluation throughout the rating period on appeal.  While the frequency of the Veteran's sinusitis episodes is unclear, the record does reflect antibiotic treatment for this disability at least twice in the past.  Absent records of treatment by a physician, the Board cannot find a history of incapacitating episodes for purposes of the diagnostic criteria in question.  

Based on the subjective history provided by the Veteran, she experienced six episodes a year with headaches, purulent discharge, pain, and crusting.  She has not alleged that she experienced more than six episodes a year of these symptoms.  Thus, even accepting the Veteran's statements as both competent and credible, the next-higher evaluation of 30 percent is not warranted.  Thus the criteria for a 10 percent evaluation, but no more, has been met.  As the evidence of record does not show any distinct time periods where the Veteran's sinusitis exhibited symptoms that would warrant a compensable evaluation, staged ratings are not warranted.  See Fenderson, 12 Vet. App. 119.

Allergic Rhinitis Increased Initial Evaluation Claim

Throughout the rating period on appeal, the Veteran's allergic rhinitis has been evaluated as noncompensable, effective August 25, 2006.  She has appealed that initial evaluation.  See Fenderson, 12 Vet. App. 119.

Under Diagnostic Code 6522, a compensable (10 percent) evaluation for allergic rhinitis requires greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97.  A higher evaluation of 30 percent is available for allergic rhinitis with polyps.

Private treatment records dated from December 2006 to April 2007 note complaints of nasal discharge and nasal obstruction.  Physical examination in December 2006 found nasal congestion, which a March 2007 treatment note indicated had resolved.  Physical examination in April 2007 found pale boggy turbinates.

In March 2010, the Veteran underwent a VA medical examination.  She reported constant sinus problems occurring six times per year and lasting one week each.  She further reported being incapacitated by these episodes as often as six times per year with each incident lasting for ten days.  She reported headaches occurring with her sinus episodes, interference breathing through her nose, purulent discharge from nose, hoarseness of voice, pain, and crusting.  She reported requiring antibiotic treatment lasting four to six weeks for her sinus problems.  The examiner found active allergic rhinitis, but no bacterial rhinitis.  Upon physical examination, the Veteran's head was normocephalic and atraumatic.  The tympanic membranes of the ear were intact.  The mucosa of the throat was intact.  There was no pharyngeal erythema or exudates.  Physical examination of the nose revealed no nasal obstruction, no deviated septum, no partial loss of the nose, no partial loss of the ala, no nasal polyps, no scar, no disfigurement, no rhinitis, and no sinusitis.

At the April 2011 hearing, the Veteran reported symptoms including mucous that drained through the throat, not the nose, and recurrent treatment with antibiotics, three or four times a year.  She stated that she controlled her symptoms with constant medication.

Based on the above evidence, the Veteran's allergic rhinitis most nearly approximates the criteria for a noncompensable evaluation.  While the Veteran has reported nasal obstruction, the medical evidence of record does not demonstrate greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side, as required for a compensable evaluation under Diagnostic Code 6522.  See 38 C.F.R. § 4.97.  Indeed, the medical evidence of record indicates that the nasal obstruction resolved.  Moreover, at her April 2011 hearing, the Veteran noted that her symptoms rarely resulted in mucous that could be expelled from her nose, but rather dripped down her throat.  Thus the criteria for a 10 percent evaluation have not been met and so the symptoms most nearly approximate the criteria for a noncompensable evaluation.  See 38 C.F.R. § 4.7.

As the evidence of record does not show any distinct time periods where the Veteran's allergic rhinitis exhibited symptoms that would warrant a compensable evaluation, staged ratings are not warranted.  See Fenderson, 12 Vet. App. 119.

Extraschedular-schedular considerations

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2009); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record)

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008).

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When either of those two elements is met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation in this case is not inadequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflects that those manifestations are not present in this case.  As such, referral for extraschedular consideration is not in order here.

Sleep Apnea Service Connection Claim

Direct service connection requires competent and credible evidence of a current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In this case, private treatment records show that the Veteran is currently being treated for sleep apnea.  Thus the current disability requirement is satisfied.

The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury.  Davidson, 581 F.3d 1313.  In this case, however, there is no record of sleep apnea during service.  However, in his August 2006 statement, the Veteran's husband stated that he first noticed the Veteran's snoring and difficulty getting restful sleep shortly after they were married in 1987, while she was still in service.  He is competent to report this observable condition and the Board does not question his credibility.  Thus, the in-service requirement is satisfied. 

The third and final requirement for direct service connection is a nexus between the in-service sleep disturbances and the current diagnosis of sleep apnea.  In his April 2011 opinion, Dr. C.N.B. related the Veteran's sleep apnea to her weight gain, not to an in-service injury or disease.  However, in his earlier November 2007 opinion, Dr. C.N.B. related the Veteran's sleep apnea to the in-service sleep disturbances described by her husband.  Thus, resolving doubt in the Veteran's favor, the nexus requirement is deemed satisfied here.  Indeed, Dr. C.N.B. reviewed the Veteran's medical records, has familiarity with the medical issues and also has knowledge of the rating schedule, as he indicated in his statements.  For these reasons, his November 2007 opinion carries high probative value.  Moreover, even if Dr. C.N.B.'s favorable opinion was not deemed persuasive, the Board notes that, from the husband's observation of sleep apnea during service and the Veteran's statements indicating continued problems requiring daily use of a CPAP machine, service connection is also warranted based on continuity of symptomatology.  

For the foregoing reasons, the Board finds that the preponderance of the evidence supports an award of service connection for sleep apnea.  The benefit sought on appeal is accordingly allowed.

Tinnitus Service Connection Claim

Direct service connection requires competent and credible evidence of a current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In this case, the Veteran has reported intermittent tinnitus both in her treatment records and in her statements to VA.  See e.g., August 2000 service branch medical record and December 2007 List of Disabilities.  She is competent to report such observable condition.  Thus, the preponderance of the medical evidence indicates that the current disability requirement has been met.

The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury.  Davidson, 581 F.3d 1313.  In this regard, the Veteran's service treatment records show complaints of intermittent tinnitus, often associated with sore throat complaints.  Likewise, the Veteran also testified at her April 2011 hearing that she was exposed to loud computer noise in-service due to her work in information technology.  Thus, the in-service occurrence requirement is met.

The third and final requirement for direct service connection is evidence of a medical nexus between the Veteran's current tinnitus and her military service.  See Davidson, 581 F.3d 1313.  In his November 2007 opinion, Dr. C.N.B. found a positive nexus between the Veteran's current tinnitus and her military service, including a lengthy rationale for his conclusions, including the fact she had normal hearing on entry, worked in a noisy environment during service, and was treated in service, with no more likely etiology indicated in the record.  As he reviewed the file and provided support for his conclusions, such opinion is highly probative.  Thus, the medical nexus requirement is satisfied and service connection for tinnitus is warranted.

Right Elbow Disability Service Connection Claim

The Veteran's service treatment records show treatment for trauma to the right elbow in November 1983.  Thus the in-service injury requirement has been satisfied.  See Davidson, 581 F.3d 1313.

With regard to the current disability requirement, the Veteran has reported that she is in severe daily pain stemming from her right elbow.  The record does not contain any current right elbow diagnosis.  As noted previously, the Veteran's neurologic symptoms associated with cervical strain include neuralgia of the right upper extremity with pain radiating down her right arm.  Thus, the Veteran's right elbow pain has already been compensated.  To award an additional rating for the same symptom would violate the rule against pyramiding.  See 38 C.F.R. §§ 4.14, 4.118.

The Board notes that service connection presupposes a current diagnosis of the claimed disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). Aside from the pain already contemplated in the evaluation for neuralgia, the record does not contain a diagnosis of right elbow disability during the relevant time period.  Therefore, service connection for right elbow disability is not warranted.

The preponderance of the evidence is against the claim of entitlement to service connection for a right elbow disability.  The benefit sought on appeal is accordingly denied since there is no reasonable doubt to resolve in the Veteran's favor.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


Pharyngitis Service Connection Claim

The Veteran's service treatment records show multiple complaints of pharyngitis during service.  Thus, the in-service injury requirement has been satisfied.  See Davidson, 581 F.3d 1313.

With regard to the current disability requirement, the record does not contain any current pharyngitis diagnosis.  Veteran has reported related symptoms associated with her already service-connected sinusitis and allergic rhinitis, but no diagnoses of pharyngitis is of record during the appeal period.

Again, service connection presupposes a current diagnosis of the claimed disability. See Brammer, 3 Vet. App. 223, 225 (1992); Wamhoff, 8 Vet. App. 517, 521 (1996); Rabideau, 2 Vet. App. 141, 144 (1992); see also McClain, 21 Vet. App. 319.  The record does not contain a diagnosis of pharyngitis or other throat disability during the relevant time period.  All throat-related manifestations of record during such time relate to already service-connected disabilities of rhinitis and sinusitis.  Therefore service connection for pharyngitis is not warranted.  

To the extent that symptoms of pharyngitis may overlap those of sinusitis and allergic rhinitis, these symptoms have already been contemplated in those evaluations and compensating the Veteran again for the same symptoms would violate the rule against pyramiding.  See 38 C.F.R. §§ 4.14, 4.118.

In sum, the preponderance of the evidence is against the claim of entitlement to service connection for pharyngitis.  The benefit sought on appeal is accordingly denied since there is no reasonable doubt to resolve in the Veteran's favor.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Lumbosacral Strain Service Connection Claim

Direct service connection requires competent and credible evidence of a current disability.  Davidson, 581 F.3d 1313; see also McClain v. Nicholson, 21 Vet. App. 319 (2007)(requiring a claimant have the claimed disability either at the time the claim is filed or during the pendency of that claim in order to satisfy the current disability requirement).  To this end, the Veteran has complained of lumbosacral strain.  In October 2007, she underwent a VA examination in conjunction with this claim.  Upon physical examination, she was found to have full range of motion without any additional functional limitation after repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination.  The examiner found no pathology of the lumbar spine and therefore did not render a related diagnosis.  The additional medical evidence of record from the appeals period is likewise silent on a diagnosis of lumbosacral strain.  By contrast, the Veteran's service treatment records do show lumbosacral strain following her in-service motor vehicle accident and subsequent complaints of related low back pain.  However, these records predate the claim by nearly two decades and therefore cannot satisfy the current disability requirement.  McLain v. Nicholson, 21 Vet. App. 319 (2007).

The Board has also considered the Veteran's lay statements relating to this claim.  However, her statements regarding current lumbosacral strain are not supported by the medical evidence of record and are in direct conflict with the October 2007 examiner.  To the extent that the Veteran believes this claim is supported by the medical evidence she has submitted, the Board notes some records, such as the December 2006 service branch treatment records, have been submitted with handwritten notations relating this record to her claimed lumbosacral strain despite the clear reference within the records themselves to the vertebrae of the cervical spine and not the lumbar spine.  The Veteran is currently service- connected for a cervical spine disability and, as explained below, suffers from pre-existing thoracic scoliosis.  As both of these disorders also affect the spine, the Veteran's competency to differentiate between these is questionable.  Thus, the current disability requirement has not been met and the claim of service connection must fail on this basis.

Septal Deviation Service Connection Claim

Direct service connection requires competent and credible evidence of a current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Private treatment records from A., H. and Associates note deviated septum as an unresolved problem for the Veteran in her December 2006 to April 2007 records.  Confusingly, these same records repeatedly note "no septal deviations" within the context of the accompanying physical examinations.  In this regard, the Board finds more probative the actual objective findings in these reports.  Moreover, the June 2007 and March 2010 VA examiners found no septal deviation.  Thus, the preponderance of the medical evidence indicates that the current disability requirement has not been met.

The second requirement for direct service connection is competent and credible evidence of an in-service occurrence or aggravation of a disease or injury.  Davidson, 581 F.3d 1313.  In this case, however, there is no record of septal deviation during service.  In fact, a July 1981 record specifically found no septal deviation.  In his November 2007 opinion, Dr. C.N.B. includes septal deviation in the same organ system as sinusitis, pharyngitis, Eustachian tube dysfunction, and rhinitis in offering a positive nexus opinion for her current sinus and headache problems.  However, in listing the in-service problems with this organ system, he does not provide an example of septal deviation.  Again, a review of the service treatment records does not show any septal deviation.  As such disability has not been shown either in-service or presently, the claim must fail. 

In sum, while the record shows other ear, nose, and throat disabilities, such as the service connected sinusitis and allergic rhinitis, septal deviation is not among those shown.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  

Tonsillectomy Service Connection Claim

The Veteran claims entitlement to service connection for a post-service tonsillectomy that she claims was necessitated by her in-service recurrent tonsillitis.  

At her hearing, the Veteran stated that she had her tonsils removed in 1991, the year after she left service.  In her October 1998 life insurance application, she stated that she had undergone a tonsillectomy in 1991 and had completely recovered.  Thus, the Veteran's tonsillectomy occurred in 1991, after she separated from service.  The Board does point out, however, that despite the Veteran's self-reported history of having her tonsils removed in 1991, there is no history of this noted in her ENT records and, interestingly, private treatment records from A., H. and Associates note normal tonsils in December 2006 and April 2007.  This raises questions as to the Veteran's reliability as a historian on this point.  In any event, even assuming the tonsillectomy occurred as the Veteran reports, service connection is not warranted, as will be discussed below.

Again, service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim).  A tonsillectomy is a surgical procedure, not a disability.  In order to warrant service connection, the evidence must show either a current tonsil disability or some other residual of the tonsillectomy.  Even though the evidence reflects that the Veteran underwent a tonsillectomy, this is not equivalent to a current diagnosis of a tonsil disability.  Therefore, her claim must be denied because there is no evidence of any specific residuals of this tonsillectomy, regardless of whether this surgery was in fact precipitated by the tonsillitis associated with her ear, nose, and throat ailments in service.  The associated conditions of sinusitis and allergic rhinitis are service-connected; however, no current disorder linked to the tonsillectomy has been shown.  The Veteran, in her statements, has consistently discussed the relationship between her in-service tonsil symptoms and her 1991 tonsillectomy without regard to any current residuals of this surgery.  This absence of any residuals is fatal to the claim.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56.  Thus, the appeal must be denied.


Thoracic Scoliosis Service Connection Claim
 
The Veteran's thoracic scoliosis pre-existed her military service.  In this regard, she is presumed to have been in sound condition when enrolled for service, except for diseases or injuries noted at the time of enrollment.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  Here, the Veteran's November 1977 commission examination notes scoliosis of the dorsal spine, measuring 17 degrees by the Cobb Method.  Therefore the presumption of soundness does not apply to this condition.  

Once the pre-existence of a disability had been established, the relevant inquiry is whether that disability was aggravated by the Veteran's military service.  A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); see Akins v. Derwinski, 1 Vet. App. 228 (1991) (holding that VA must point to a specific finding that increase in disability is due to the natural progress of the condition).  

In this case, scoliosis was noted again on radiology reports from July 1980, April 1982, and January 1990.  The degree of scoliosis was not recorded.  However, the most recent evidence of record, Dr. C.N.B.'s opinion, states that the Veteran had thoracic scoliosis measuring 17 degrees as measured after the Veteran's second  in-service accident in 1984.  This finding does not appear to be of record.  However, if accurate, this strongly weighs against a finding of aggravation, as it would indicate no worsening between 1977 and 1984, despite the in-service traumas.  Putting aside the reference to a 1984 report, no other evidence of record demonstrates any aggravation of the pre-existing thoracic scoliosis.  Absent an increase in severity, the presumption of aggravation does not apply.  See 38 C.F.R. § 3.306(b).  

The Board recognizes that Dr. C.N.B. attributed this disorder to the Veteran's in-service motor vehicle accident.  However, such finding was based on the  erroneous subjective medical history provided by the Veteran in August 2007, in which she reported an in-service onset of this disorder.  This is plainly contrary to the facts of record and as such the opinion based on such incorrect information holds no probative weight.

For the reasons discussed above, the Board determines that the medical data of record shows that the Veteran's thoracic scoliosis pre-existed service and did not undergo a permanent worsening or aggravation during service.  Thus service connection is not warranted.  Accordingly, the appeal is denied.

Vaginitis Service Connection Claim

In disability compensation (service connection) claims, the VA must provide a VA medical examination when certain conditions are met.  Specifically, these four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In her lay statements, the Veteran has reported irregular pap results.  Thus there is lay evidence of a current disability.  Regarding in-service incurrence requirement, the service treatment records show repeated treatment for vaginitis, including multiple yeast infections and trichomoniasis.  Finally, the November 2007 letter written by Dr. C.N.B. relates the vaginitis to service.  He reasons that the initial signs and symptoms arose during service.  Moreover, her documented sinus and pharyngitis disabilities were treated with numerous antibiotics and steroid combinations, which likely caused bacterial or fungal overgrowth in other regions of her body.  Moreover, he noted that the record did not indicate a more likely etiology for the vaginitis.  As such opinion was offered after a review of the file, and was accompanied by a clear rationale, it is deemed highly probative.  Furthermore, no other competent medical evidence refutes that opinion.  

As discussed above, all elements required for a grant of service connection have been met, and the claim is thus allowed.  


ORDER

The appeal on the issue of an initial compensable evaluation for anemia is dismissed.

The appeal on the issue of an effective date earlier than August 25, 2006, for anemia is dismissed.

The appeal on the issue of service connection for second degree burn of the right hand is dismissed.

The appeal on the issue of service connection for residuals of a left fifth toe fracture is dismissed.

The appeal on the issue of service connection for granulomatosis disease is dismissed.

The appeal on the issue of service connection for fibrocystic breast disease is dismissed.

Entitlement to an effective date earlier than August 25, 2006, for the award of service connection for left knee disability is denied.

Entitlement to an effective date earlier than August 25, 2006, for the award of service connection for sinusitis is denied.

Entitlement to an effective date earlier than August 25, 2006, for the award of service connection for right shoulder disability is denied.

Entitlement to an effective date earlier than August 25, 2006, for the award of service connection for left knee scarring is denied.

Entitlement to an effective date earlier than August 25, 2006, for the award of service connection for cervical strain is denied.

Entitlement to an effective date earlier than August 25, 2006, for the award of service connection for allergic rhinitis is denied.

Entitlement to an initial evaluation in excess of 30 percent cervical strain is denied.

A separate 20 percent rating for mild incomplete neuralgia of the right upper extremity, as associated with the service-connected cervical strain is granted, subject to governing criteria applicable to the payment of monetary benefits.

Entitlement to an initial evaluation in excess of 10 percent for left knee disability is denied.

Entitlement to an initial evaluation in excess of 10 percent for right shoulder strain is denied.

Entitlement to an initial compensable evaluation for left knee scar is denied.

Entitlement to an initial compensable evaluation for sinusitis is denied.

Entitlement to an initial compensable evaluation for allergic rhinitis is denied.

Entitlement to service connection for sleep apnea is granted, subject to governing criteria applicable to the payment of monetary benefits.

Entitlement to service connection for tinnitus is granted, subject to governing criteria applicable to the payment of monetary benefits.

Entitlement to service connection for right elbow disability is denied.

Entitlement to service connection for pharyngitis is denied.

Entitlement to service connection for lumbosacral strain is denied.

Entitlement to service connection for septal deviation is denied.

Entitlement to service connection for residuals of tonsillectomy is denied. 

Entitlement to service connection for thoracic scoliosis is denied.

Entitlement to service connection for vaginitis is granted, subject to governing criteria applicable to the payment of monetary benefits. 


REMAND

Left Shoulder and Right Knee Service Connection Claims

During the April 2011 hearing, the Veteran's witness, Dr. C.N.B., expressed his intention to submit a medical opinion regarding several of the claims at issue.  In May 2011, the Veteran submitted a private medical opinion from Dr. C.N.B.  Unfortunately, this opinion contains some confusing typographical errors and one paragraph that perhaps unintentionally states that the Veteran's non-service connected left shoulder and right knee were in fact the cause of his right shoulder and left knee disabilities, which would imply that the latter pair were incorrectly service connected.  This latter potential mistake prevents the Board from deriving a clear and useful opinion from this examiner's statements.  When VA concludes that a private medical examination is unclear or insufficient in some way, and it and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable.  Savage v. Shinseki, 24 Vet.App. 259, 269 (2011).  In this case, the Board finds that the interests of the Veteran are best served by remanding this case so that clarification of this opinion can be requested.  

Additionally, this doctor makes reference during the April 2011 hearing to potential renal or hepatic disability that is not on appeal, but may be related to the Veteran's medical regimen.  He again refers opinion to a potential renal disability in the May 2011 opinions.  The Veteran is asked to clarify whether she intends to pursue service connection for this additional disability.

Hypertension Service Connection Claim

The record contains conflicting statements regarding the relationship between the Veteran's hypertension, her service-connected sleep apnea. and her post-service weight fluctuation.  At the April 2011 hearing, the Veteran stated her belief that her hypertension was due to her post-service weight gain, which Dr. C.N.B. in turn attributed to her sleep apnea.  By contrast, Dr. C.N.B.'s May 2011 opinion stated that the Veteran's sleep apnea was caused by her post-service weight gain.  As the Veteran's weight fluctuation is neither a disability for VA compensation purposes nor an in-service injury, clarification is required as to whether a causal relationship exists between the Veteran's hypertension and her service-connected sleep apnea, to include clarification on whether the post-service weight gain is attributable to the service-connected sleep apnea.  


Right Foot Disability Service Connection Claim

The Veteran has reported foot problems including pain, pronation, cramping, and cold toes.  Thus there is lay evidence of a current disability.  Moreover, while the current medical evidence of record does not address this disorder, service branch treatment records from before the appeals period show podiatry treatment in February 1997 due to pronation; orthotics prescribed in April 1997, and bone spur in December 2000.

The service treatment records do not show an in-service right foot injury, however, the Veteran has stated that her foot problems began after her well-documented in-service motor vehicle accident.  To the extent that Dr. C.N.B. discussed the Veteran's foot disorder in his November 2007 opinion, he appears to relate her bilateral foot conditions to a left toe injury in service.

Thus, there is evidence of current disabilities and an in-service injury, but insufficient medical evidence of record to make a decision on the claim.  A medical examination is necessary before the Board can make a decision on this claim.  Again, the Board acknowledges that an opinion is of record from Dr. C.N.B., but such opinion is imprecise and not adequately explained, in light of the fact that no specific right foot injury is documented in service.  

Bowel and Bladder Incontinence

At her March 2010 VA examination, the Veteran reported having some fecal leakage and bladder incontinence, which she attributed to her service-connected cervical spine disability.  Under the general rating formula for diseases and injuries of the spine, a separate rating is warranted for neurologic manifestations of a spine disability, to include bowel and bladder impairment.  See Note (1).  The Veteran should therefore be scheduled for an appropriate examination to further determine the scope of her bowel and bladder impairment and for an examiner to opine whether such symptomatology is attributable to the service-connected cervical spine disability.

Accordingly, the case is REMANDED for the following action:

1.  Return to Dr. C.N.B. a copy of his April 2011 medical opinion and request further clarification.  Specifically, ask Dr. C.N.B. to verify which of the Veteran's shoulders (right or left) and which of her knees (right or left) he believes are the primary disability and which are secondary.  Allow a reasonable amount of time for his response.  If Dr. C.N.B. is unable or unwilling to provide clarification within that time frame, documentation to that effect should be added to the claims folder.

2.  Send the Veteran and her representative a letter requesting clarification as to whether she intends to pursue service connection for a renal disability and/or hepatic disability in light of Dr. C.N.B.'s statements.

If the Veteran or her representative responds positively on one or both of these issues, take appropriate action to adjudicate the claim(s).

3.  Schedule the Veteran for a VA examination by an examiner with appropriate expertise for the purpose of determining the nature and etiology of any hypertension disability found to be present.  Specifically, the VA examiner should address whether the Veteran currently has hypertension.  The examiner should then state whether it is at least as likely as not that such hypertension is causally related to her military service or a service connected disability, to include sleep apnea.  The examiner is further asked to comment on the interrelationship between the Veteran's hypertension, post-service weight gain, and sleep apnea.

The claims file should be reviewed in conjunction with this examination, and all opinions offered should be accompanied by a clear rationale.

4.  Schedule the Veteran for a VA examination by an examiner with appropriate expertise for the purpose of determining the nature and etiology of any right foot disability found to be present.  Specifically, the VA examiner should address whether the Veteran currently has a right foot disability.  The examiner should then state whether it is at least as likely as not that such right foot disability is causally related to her military service, to include the in-service motor vehicle accident.  

The claims file should be reviewed in conjunction with this examination, and all opinions offered should be accompanied by a clear rationale.

5.  Schedule the Veteran for a VA examination by an examiner with appropriate expertise for the purpose of determining the nature and etiology of any bowel and bladder impairment.  All relevant findings should be noted, including daytime and night-time voiding frequency and whether any absorbent materials are used, and if so, how many per day.  The examiner is asked to opine whether such symptomatology is attributable to the service-connected cervical spine disability.

6.  Following the above, invite the Veteran to submit any additional statements or opinions from Dr. C.N.B., providing copies of the VA examination reports upon his request.  

7.  After completing the requested actions, and any additional notification and development deemed warranted, readjudicate the Veteran's claims in light of any additional evidence received.  If any of the benefits sought on appeal remain denied, provide the Veteran and her representative an SSOC, with an appropriate period for response, before the case is returned to the Board for further appellate consideration.

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

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




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs