Citation Nr: 1208780	
Decision Date: 03/07/12    Archive Date: 03/19/12

DOCKET NO.  97-11 775	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for a fractured jaw.

2. Whether new and material evidence has been received to reopen a claim of service connection for umbilical and ventral herniorrhaphies.

3. Entitlement to a compensable rating for duodenal ulcer disease.

4. Entitlement to an initial rating in excess of 10 percent for residuals of a right forearm injury. 


REPRESENTATION

Appellant represented by:	Virginia Girard-Brady, Esq.



WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from December 1972 to September 1976, and had subsequent service with the Air National Guard.         

This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issues of whether new and material evidence has been submitted to reopen claims of service connection for a fractured jaw, and umbilical and ventral herniorrhaphies, as well as a compensable rating for duodenal ulcer disease arise from a December 2006 RO rating decision.

The issue of an increased initial rating for residuals of a right forearm injury arises from a September 2002 rating decision granting service connection for the underlying disability, with a 10 percent evaluation effective April 24, 2000.         See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's appeal from the initial 10 percent evaluation led to a Board decision of August 2004 denying that claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), which vacated and remanded the decision as to the right forearm issue in an October 2006 memorandum decision. The Board then remanded the claim for an additional VA examination in January 2008 to comply with the Court decision. 

Then in March 2009, the Board remanded this case for a hearing before a    Veterans Law Judge of the Board. A Travel Board hearing at the RO was held          in March 2010, the transcript of which is of record. 

Through a December 2010 decision/remand the Board denied petitions to reopen service connection for a fractured jaw, and umbilical and ventral hernias, in addition to a claim for compensable rating for duodenal disease. The remaining issues on appeal were remanded, these being the initial rating claim for residuals of a right forearm injury, and another pending matter for service connection for hypertension.

Thereafter, the Veteran appealed the December 2010 Board decision to the Court       to the extent denying the benefits sought. In October 2011, the Court granted a   Joint Motion for Remand by the Veteran's attorney and the Secretary of VA        (the parties), vacating the December 2010 decision on the contested claims and then remanding them to the Board. Consequently, the Veteran's petitions to reopen and increased rating claim for duodenal ulcer disease are now back before the Board.

Meanwhile, an October 2011 RO rating decision was issued granting the claim then on appeal for service connection for hypertension. The Veteran has not appealed from the assigned initial rating or effective date, and hence this claim has been resolved. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Also, the Veteran's previously remanded claim for increased rating for a right forearm injury was denied pursuant to an October 2011 Supplemental Statement of the Case (SSOC), and this matter has since been returned to the Board for further appellate review.

At this point, the Board further observes that the December 2010 decision/remand was a panel decision decided by three members of the Board. Since then with            the RO's grant of service connection for hypertension in October 2011, the only remaining issues on appeal are those concerning which the undersigned Acting Veterans Law Judge heard testimony in March 2010. Neither of the two other signing judges from December 2010 specifically heard testimony on the four issues still on appeal. As there are no further common issues between more than one judge, this case is now being resolved in its entirety by single judge disposition. 

FINDINGS OF FACT

1. An August 2004 Board decision denied the Veteran's original claim of service connection for umbilical and ventral herniorrhaphies, and petition to reopen the previously denied claim of service connection for a fractured jaw. 

2. Following the Board's decision, no additional evidence has been received which relates to an unestablished fact necessary to substantiate these claims.

3. The most competent and probative medical evidence establishes that the Veteran does not currently experience duodenal ulcer disease, and thereby does not manifest at least mild symptoms of this underlying disorder. 

4. The Veteran's service-connected right forearm injury residuals do not involve compensable limitation of motion of the forearm, elbow or wrist. The criteria also are not met for a post-surgical right forearm scar evaluation of higher than                10 percent based on surface area, number of painful/unstable scars, or limitation of function, including under any applicable version of the rating criteria. 


CONCLUSIONS OF LAW

1. The Board's August 2004 decision denying service connection for umbilical and ventral herniorrhaphies, and a petition to reopen service connection for a fractured jaw is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 20.1100 (2011).

2. New and material evidence has not been received to reopen the Veteran's previously denied claims. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011);                 38 C.F.R. § 3.156(a) (2011).

3. The criteria are not met for a compensable evaluation for duodenal ulcer disease. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7305 (2011).
4. The criteria are not met for an initial evaluation in excess of 10 percent for residuals of a right forearm injury. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5206-5208 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist the Veteran

The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.    §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2011), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2011).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)       must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U. S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence.

Through VCAA notice correspondence dated from July 2006 through May 2007 regarding the petitions to reopen and increased rating for duodenal ulcer disease,  the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).   Meanwhile, an addendum to the September 2006 correspondence informed            the Veteran regarding a claim-specific definition of "new and material" evidence   as it pertained to the disposition of his petitions to reopen. 

In regard to the claim on appeal for higher initial evaluations for service-connected residuals of a right forearm injury, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with        the RO's decision as to the assigned disability rating does not trigger additional             38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claim for service connection for right forearm injury has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. 

The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim.            See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The initial VCAA notice letters on petitions to reopen, and increased rating claim for duodenal ulcer disease preceded issuance of the December 2006 RO rating decision on appeal, and thereby comported with the definition of timely notice. However, the May 2007 notice correspondence addressing duodenal ulcer disease technically did not comport with this timing of notice requirement. This notwithstanding, the Veteran has had the opportunity to respond to the May 2007 VCAA correspondence before issuance of the October 2011 SSOC continuing the denial of his claim. Moreover, there is no indication of any further available information or evidence to obtain to support        the Veteran's claim. Thus, the Veteran has had the full opportunity to participate in the adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). 

The RO has taken appropriate action to comply with the duty to assist                   the Veteran in this case, through obtaining records of VA outpatient treatment. There is no indication of any outstanding records of private treatment to obtain.  The Veteran has undergone VA Compensation and Pension examinations pertaining to his increased rating claims. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). Also provided have been examinations with reference to the issues of service connection for a fractured jaw and hernias, and notwithstanding that is not a duty to assist obligation where involving a petition to reopen a previously denied claim.  See 38 C.F.R. 3.159(c). In support of his claims, the Veteran provided several personal statements, and testimony during a Travel Board hearing. Thus, the record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran.

The Board is further aware that the Veteran's petitions to reopen service connection for a fractured jaw and hernias, along with the increased rating claim for duodenal ulcer disease were the subject of an October 2011 Joint Motion for Remand approved by the Court. In its issuance of a denial regarding each of these claims below, the Board will address at all pertinent times the applicable points that were raised for consideration within the Joint Motion for Remand. Without further discussion of the terms of the Joint Motion for now, the Board points out only that there is no further evidentiary development indicated at this time.

In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. 

Background and Analysis

Petitions to Reopen

The procedural history of the RO's prior consideration of claims for service connection for a fractured jaw and hernias is somewhat complex, but bears explanation. Through a rating decision of May 1993, the RO denied the original claim for service connection for umbilical and ventral herniorrhaphies. The basis for denial was an absence of records showing the conditions were incurred in or aggravated during active duty service or resulted from injuries during reserve duty. 
The Veteran filed through June 1993 documentation what would be interpreted as a plausible Notice of Disagreement (NOD) with that decision. See 38 C.F.R.                 § 20.201. A Statement of the Case (SOC) was not issued in response from the RO; regardless, the claim remained in a non-final, pending status.

Through a November 1993 rating decision the RO also denied service connection for a fracture of the jaw, the rationale being that there was no documentation to support the Veteran's claim that he fractured his jaw in the National Guard in        the 1980s, and further, that a June 1993 VA dental exam indicated no evidence of chronic residual disability. The Veteran filed a NOD, and the RO issued a timely SOC, to which the Veteran did not respond with a timely VA Form 9 (or other substantive appeal). Thus, this decision became final. See U.S.C.A. § 7105;               38 C.F.R. §§ 3.104(a), 20.200, 20.202.

Thereafter, an April 1996 RO rating decision denied a petition to reopen service connection for a fractured jaw. This time the Veteran perfected his appeal to         the Board. (Also appealed therefrom was the denial of a "petition to reopen" service connection for hernias, later recognized by the Board properly as a de novo claim for service connection.) 

In September 1998, the Board issued a decision on the appellate issues before it, first denying service connection for hernias. It was found that there was documentation of hernia repairs in December 1981 after sustaining a nonservice-related injury at work in October 1981, but that the objective evidence did not establish that any hernias were present or complained of during service. The claim was again denied for lack of a causal nexus between a hernia condition and service. Next, the Board denied reopening of service connection for a fractured jaw, concluding that the additional evidence submitted since the 1993 RO decision on the matter (National Guard service records, and the Veteran's lay testimony) contained no objective proof whatsoever that the Veteran fractured his jaw in service. Here again the grounds for denial was lack of causal nexus, augmented by the absence of proof of an in-service injury.

The Veteran appealed to the Court, which issued a Memorandum Decision in December 2000 vacating and remanding, in relevant part, the fractured jaw petition and the hernias claim to the Board. The Board remanded the issues for further development, and for readjudication taking into account the provisions of             the Court's Memorandum Decision. 

The Board ultimately denied the issues again in an August 2004 decision.            The decisional grounds were largely the same as previously noted. On the petition to reopen service connection for a fractured jaw, there was still no evidence to establish that current dental disability was incurred in military service due to a fractured jaw therein. The reason for denial remained the lack of a causal nexus to military service. The petition to reopen service connection for a hernia was denied for a similar reason, this being that even assuming some current residuals from a hernia repair procedure in 1981, there were no grounds to causally associate the condition claimed with military service. In particular, it was observed as an additional source of information on the hernia claim that according to an April 2003 VA examiner's opinion, it was highly unlikely the hernias were related to the Veteran's active duty service and almost certainly were congenital in origin.              As such, the operative basis for denying both petitions to reopen remained that neither condition claimed, if present, was then shown to be incurred or aggravated during  military service. The presence of a causal nexus to service is an essential element to establish service connection for a claimed disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004).

The Veteran appealed again to the Court. However, a December 2007 Court Memorandum Decision notes that the Veteran abandoned the fractured jaw petition to reopen and the service connection claim for hernias. Thus, the August 2004 Board decision as to the petition to reopen the fractured jaw claim and the service connection claim for hernias is final.    

Under applicable law the Board must consider the evidence of record since the August 2004 Board decision, as this constituted the last final adjudication of           the Veteran's claims through denying his petitions to reopen service connection.              See Juarez v. Peake, 21 Vet. App. 537, 542 (2008) (in adjudicating a petition to reopen consideration must be provided to evidence received since the last final rating decision on a claim, whether a denial of the original claim or a petition to reopen).

When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted,         the credibility of the evidence, although not its weight, is to be presumed.        Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown,                    9 Vet. App. 273, 283 (1996).

As the Board expressly set forth in prior consideration of this case, there was a revision to 38 C.F.R. § 3.156(c) which occurred on September 6, 2006. Under this regulatory change, an exception to the new and material requirement applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision. See Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); see also 38 C.F.R. § 3.156(c), 3.400(q)(2); Proposed Rule for New and Material Evidence, 70 Fed. Reg. 35,388 (June 20, 2005).  

The Veteran's service personnel records were received by the RO after he filed his petitions to reopen in connection with an unrelated claim for service connection for post traumatic stress disorder (PTSD). In August 2006, the RO received additional service personnel records that had not been previously associated with the Veteran's claims file nor considered in connection with his compensation claims. On the date of filing, relevant regulations stated that where the new and material evidence consists of a supplemental report from the service department received before or after the decision has become final, the former decision will be reconsidered by the agency of original jurisdiction. 38 C.F.R. § 3.156(c) (2006). In such instances, the effective date of such an award may relate back to the date of the original claim or date entitlement arose even though the decision on that claim may be final under 38 C.F.R. § 3.104.   

The records in question concern the awards the Veteran received and his performance evaluations. The Board continues to find that the additional records do not relate to the pending appeals, and could not vitiate finality. The PTSD claim         is not presently on appeal. The additional treatment records do not concern any treatment of the jaw or for hernias. Reconsideration of the original claims is not warranted. See Vigil, supra. Reopening under 38 C.F.R. § 3.156(a) is required, and the aforementioned standard for when "new and material" evidence has been received will be applied. 

Turning to the Board's reopening analysis in this case, it is essential to first observe that a December 2010 Board decision considered the very same issues presented now, and denied the petitions to reopen, only to have the decision vacated and remanded pursuant to the Court's October 2011 Joint Motion for Remand.    Through this Joint Motion, there were identified four distinct statements from  third-party lay witnesses, received in August 2010, each of which offered lay testimony in furtherance of the contested issues, the petitions to reopen service connection for a fractured jaw and a hernia. As stated within the Joint Motion,          the parties to the motion agreed that the Board erred by not analyzing whether the newly submitted lay statements were sufficient to reopen the Veteran's previously denied claims. The Joint Motion pointed out that essential to the Board's previous denial of benefits in August 2004 was no finding of an in-service incurrence of a fractured jaw or a hernia. According to the Joint Motion, the record previously contained testimony from the Veteran in which he asserted that his jaw and hernia condition occurred in service. The newly submitted lay statements might indeed now corroborate the Veteran's own assertions in this regard. Consequently, the Joint Motion directed the Board to specifically consider these lay statements in its readjudication of this case. The Board will undertake readjudication of the matters on appeal taking into full consideration the points raised with the Joint Motion         for Remand.                 

To that effect, it is the continued opinion of the Board that even accounting for this relevant lay testimony, the criteria for reopening claims for service connection for a fractured jaw and a hernia nonetheless still have not been met. Prior to addressing the significance of the lay witness statements presented by the Veteran, the Board will consider first the new medical evidence added to the file since the August 2004 Board decision denying the contested matters.

The medical evidence which has been received consists of additional service personnel records, VA treatment records, VA examination reports, and some private medical records.

As mentioned above, the service personnel records associated with the record concern the Veteran's performance evaluations and awards received during service.  There is no mention of his physical condition. The Board finds this evidence immaterial to the petitions to reopen.  

The Veteran's most recent VA treatment records have been associated with the claims file. These records do not indicate a relationship between a fractured jaw and service or between umbilical or ventral hernias and service. The Board finds this evidence immaterial to the petitions to reopen.  

The Veteran also underwent a series of VA examinations in connection with his other claims. The examination reports are silent as to the fractured jaw issue and all but one are silent on the hernia issue. To the extent that the examination reports are silent, the Board finds this evidence immaterial to the petitions to reopen.                     In August 2006, a VA digestive conditions examination report mentions that he had an umbilical herniorrhaphy while on active duty with the Tennessee Air National Guard. The examiner noted that he had undergone traditional hernia repair in December 1981. Credibility is presumed in petitions to reopen. See Justus, supra.  However, credibility is not synonymous with competency. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The statement that the hernia occurred during a period of active duty with the Tennessee Air National Guard is beyond the competency of a medical examiner. The examiner appears to have recorded the Veteran's statements.  The attribution of the hernia to a period of service appears to be based on the appellant's previously reported history. That history was considered in the prior claim. The Board finds, therefore, that the August 2006 VA examination report indicating that the hernia occurred during a period of active duty with the Tennessee Air National Guard is not material to the petitions to reopen. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant).

The Veteran's private medical records from a family practice clinic are new to       the claims file. These records do not discuss either the fractured jaw or hernias.             The Board finds this evidence immaterial to the petitions to reopen.  

Having reviewed any and all new medical evidence associated on file, the Board now focuses upon the lay testimony of record both from the Veteran himself, and from others on his behalf. 

Regarding the Veteran's own lay statements, the Veteran testified during the           March 2010 Travel Board hearing that he sustained a fractured jaw during a motor vehicle accident when he went through a windshield. The Veteran identified numerous facial scars that he indicated were the result of the accident. The Veteran stated that he had to have several teeth pulled. As recorded in the Board's August 2004 decision, the Veteran had previously testified in April 1997 to a motor vehicle accident as the cause of the fractured jaw and lost teeth. He indicated having been thrown through a windshield. The Board finds that the Veteran's testimony as to the fractured jaw claim is duplicative of evidence considered previously.  

The Veteran also testified in March 2010 that he developed a hernia near his navel and cannot perform heavy lifting. He claimed that the hernia occurred during service. He indicated that he had an operation in 1981. He reported pain in that region currently. The August 2004 Board decision states that the Veteran testified in April 1997 that he developed a hernia during active duty in Cuba following heavy lifting. The Board finds that the Veteran's testimony on the hernia issue is duplicative of the prior record.  

Essentially, there is nothing new presented within the Veteran's hearing testimony alone that would indicate a plausible basis for reopening his claims. The Board further observes in this instance, as was similarly stated through the previous August 2004 Board decision that the Veteran's bare lay assertions do not provide sufficient evidence to establish crucial factual findings requiring medical expertise. While the Veteran is competent to report having been in an auto accident during service, an event readily within lay observation and knowledge, he cannot offer conclusive testimony that he suffered a fractured jaw in that accident whereas this necessarily requires medical judgment. Similarly, he can describe symptoms during and after a work-related hernia in 1981, but cannot conclusively etiologically connect that condition with an incident of his service. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (a veteran is considered competent to report on that which is within the scope of his own knowledge or personal observation); but see Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). 

As to the next point of consideration of the lay witness statements offered in this case, the subject of the October 2011 Joint Motion for Remand, the Board on thorough review and analysis of these findings ultimately deems the statements proffered not to warrant reopening of the matters at hand.

In one statement received in March 2010, the Veteran's daughter indicates that "the purpose of this letter is to provide you with information pertaining to my father['s] medical condition. This condition was caused because of the time he spent in the Marine Corps. I remember as a teen how my dad would be in pain and being [un]able to do certain things. It wasn't until I was an adult that I understand why. Because of the severe pain it caused him to be limited in things he did with us."

In his statement, the Veteran's son indicates that "while in the Marine Corps         [the Veteran] suffered several injuries that currently cause him problems. I believe that he was caused great mental and physical harm that has limited his activities      in life."

Through his statement, the Veteran's other son indicates that "what I have seen is that my father suffered a very painful and serious condition, therefore this has caused him to be limited in the activity he can do. I have known of this all of my teenage and adult years."

Also, in his statement, the Veteran's brother indicates "the purpose of this communication is to provide you information pertaining to medical concerns of my brother. To my knowledge, [the Veteran] incurred a right forearm injury, a fractured jaw, and ulcer, hernia, and hypertension while in the military service."
Of the statements given, the first three lay statements in particular, even when accepted as fully credible (given that credibility is to be presumed when evaluating a claim to reopen) are nonspecific. Without any indication of the claimed debilitating medical condition or conditions to which the individuals refer, there       is no means by which any of the lay statements made can substantiate the Veteran's petitions to reopen. While the statements given were clearly made to help further the Veteran's case and competently describe an overall state of having physical and/or mental ailments, there is no actual discussion therein of a fractured jaw or hernia condition, or for that matter any substantiation that the claimed conditions had their onset during military service. 

Regarding the fourth statement given, the Board must afford more in-depth consideration to this pronouncement as it does directly mention, amongst other conditions, the claimed fractured jaw and hernia. The author of the statement provides that to his knowledge, these two conditions were incurred while in service. Unfortunately, while closer to the type of evidence the Board would need to reopen either claim at hand, ultimately this fourth statement does not materially advance the Veteran's case. Assuming again to the full extent that the statement is competent and credible, it still offers no concrete means to link either claimed condition with            in-service injury. Essentially, the Board does not, and cannot ascertain the basis for the author's knowledge, nor is the author forthcoming with any details on this subject. There is no allegation of firsthand knowledge of in-service injury, either through direct observation, or of learning of injury shortly after the Veteran concluded a period of military service. If instead the author's basis for knowledge is in the self-reported history of the Veteran, then that is merely a reiteration of the Veteran's own assertions, and not independently competent and credible lay history. From the context of the statement, the Board has no reason to believe other than that this latter scenario is the case. Nor for that matter is the statement that the claimed disorders were "incurred in service" itself persuasive as evidence of medical causation, given that the author does not indicate he has medical professional credentials, or otherwise has conducted any objective review of the circumstances of this case. In sum, the statement as given offers no new insight into the determinative issue on this case, which is whether a fractured jaw and/or hernia were incurred in service (and if so, exactly how this came to be the case).   
In so finding, the Board has given full consideration to the Court's recent holding in  Shade v. Shinseki, 24 Vet. App. 110 (2010), which interpreted the language of             38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. at 118. 

While the Board is aware of the preceding case holding, it is maintained that the Veteran's brother's lay statement does not raise a reasonable possibility of substantiating either claim, inasmuch as it does not present any new information that would materially affect the prior basis of denial, which was the lack of causal nexus to service. Again, the statement as proffered reflects at best a reiteration of the Veteran's own assertions, and does not provide independent knowledge or awareness of any crucial case facts that would impact the issue of causation.           The Board likewise cannot ascertain how this statement would otherwise trigger VA's duty to assist by providing a new examination and medical opinion, as the statement offers no new corroborating information that would aid a VA examining physician in rendering a comprehensive medical opinion. In sum, the lay witness testimony in this case does not provide a basis to reopen. 

Accordingly, the Board must conclude that the criteria upon which to reopen the claims for service connection for a fractured jaw and hernia have not been met. New and material evidence has not been received to reopen the previously denied claims. As the criteria to reopen service connection for a fractured jaw and hernia have not been met, the benefit-of- the-doubt doctrine does not apply, and the petitions to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).





Increased Rating for Duodenal Ulcer Disease 

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. 
§ 4.1 (2011). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1.

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007).

As the Board did in prior consideration of this claim, and will stress again,                the Board must dispose of a preliminary matter before turning to consider the Veteran's ulcer disability rating. The Veteran's representative submitted an August 2010 brief in which it contended that the Veteran's rating was improperly reduced from a 10 percent to noncompensable rating without observance of 38 C.F.R. § 3.344.  

In a June 2003 decision, the RO granted compensation benefits pursuant to section 1151 for duodenal ulcer disease, and assigned a 10 percent evaluation effective January 8, 1996, and a noncompensable evaluation effective August 27, 1997.         The Veteran appealed the assigned ratings. In an August 2004 decision, the Board denied the appeal, including the initial ratings for the duodenal ulcer. The Veteran appealed the decision to the Court. In an October 2006 Memorandum Decision,   the Court affirmed the Board's decision, in relevant part, denying higher staged ratings for duodenal ulcer disease.  

In July and September 2006, while the appeal was still pending at the Court, the Veteran filed claims as to the same issues addressed in the August 2004 Board decision, i.e., service connection for jaw fracture residuals and hernias, and increased ratings for duodenal ulcer disease and right forearm injury residuals.          The present appeal arises from the July 2006 claim for an ulcer rating.  

In short, the Board has previously considered staged initial ratings for a duodenal ulcer in 2004. That decision has been affirmed by the Court. The Board decision is final. 38 U.S.C.A. § 7104. A Board decision may be challenged by a motion for revision based on clear and unmistakable error (CUE). See 38 U.S.C.A. § 7111.  The Veteran and his representative have made no such motion in this case. When a claimant is represented by counsel and files a CUE motion, a sympathetic reading of the motion is not required. Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed.Cir. 2005). Therefore, the Board will not address this contention further.  

Turning to the applicable rating criteria, 38 C.F.R. § 4.114, Diagnostic Code 7305 for duodenal ulcer disease provides that a 10 percent rating is warranted for a mild ulcer with recurring symptoms once or twice yearly. A 20 percent rating is warranted for a moderate ulcer that is characterized by recurring episodes of severe symptoms two or three times per year averaging 10 days in duration, or with continuous moderate manifestations. An ulcer that is moderately severe and characterized by impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year, warrants a 40 percent rating. The highest available schedular evaluation, 60 percent, is warranted where the ulcer is severe, with pain only partially relieved by standard therapy, periodic vomiting, recurrent hematemesis or melena, and manifestations of anemia and weight loss productive of definite impairment of health. See Diagnostic Code 7305.

VA regulations further provide that, for purposes of evaluating conditions in               38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than  20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year period preceding onset of the disease.                     See 38 C.F.R. § 4.112.

The rating criteria having been set forth, before addressing the relevant evidence in this case, the Board makes note of the fact that a prior December 2010 Board decision adjudicated and denied the Veteran's increased rating claim, but was vacated and remanded upon the Court's October 2011 Joint Motion for Remand.      The October 2011 Joint Motion observed that the Board's December 2010 denial was predicated upon a finding that the Veteran "did not have active ulcer disease." However, according to the Court, the Board did not consider the October 2008 VA Compensation and Pension examination, in which the examiner indicated "peptic ulcer disease: symptoms ongoing since 1993 when he was hospitalized for duodenal ulcer disease." Since this statement was potentially favorable to the Veteran,                a remand was deemed warranted for the Board to account for this evidence.

Consequently, the Board has undertaken re-review of this claim with cognizance of the points raised with the October 2011 Joint Motion. It is the determination of     the Board for the reasons stated below that giving full weight to all pertinent evidence, the best supported outcome remains a denial of the Veteran's claim.

The Veteran filed his claim for increased rating for duodenal ulcer disease in          July 2006. 

Records of VA outpatient treatment show on an October 2005 primary care consult the Veteran reported that he was eating a lot and exercising on a treadmill. There was no reported heartburn, bright blood per rectum, or melena. The overall assessment noted "peptic ulcer disease, history of bleeding ulcer - EGD of January 2003 - continue on ppi [proton pump inhibitor]." 

In July 2006 correspondence, the Veteran stated that he was on Omeprazole everyday for stomach pain, and that his condition had worsened.

The Veteran underwent an August 2006 VA Compensation and Pension examination, including for gastrointestinal evaluation. The Veteran reported continuous symptoms since onset in 1993 that were progressively worse. He took proton pump inhibitors with reported side effects of diarrhea and nausea. He further reported periods of incapacitation due to stomach or duodenal disease of four or more times per year, duration two days each episode. He also described episodes of abdominal colic, nausea or vomiting, and abdominal distension, along with heartburn and regurgitation. He identified substernal burning pain. As to other significant history, the examiner observed that the diabetes mellitus symptom of gastroparesis might be occurring too. On physical exam, there were no signs of significant weight loss or malnutrition, or signs of anemia. There was abdominal tenderness. An upper GI study was completed which revealed an impression of gastric duodenitis, small hiatal hernia, reflux disorder as noted, 7-mm esophageal polyp about the hiatal hernia described, and small hypopharyngeal web. Also listed were the results of a similar study from November 2002 during which no ulcer       had been demonstrated. Pathology was returned as reflux esophagitis and no Helicobacter pylori identified. The overall diagnosis was of heartburn/ gastroesophageal reflux disease (GERD). There was the associated symptom    noted of abdominal pain, epigastric and substernal. 

VA outpatient records further reflect a gastroenterology consult in March 2007, resulting in the assessment of multiple gastric polyps, appearing benign and likely hyperplastic; hiatal hernia with prolonged gastric fold; polypoid lesion at junction of the first and second portion of duodenum; and questionable extrinsic compression of posterior wall of duodenal bulb. 
       
An October 2008 VA examination of the stomach/duodenum noted an in-depth review of documented medical history dating back to 1993, as well as the aforementioned March 2007 gastroenterology consult report. Also noted was an April 2007 biopsy report, which on biopsy of the duodenum showed gastric-type mucosa with hyperplastic polyp. A stomach biopsy was consistent with hyperplastic polyp, with no Helicobacter pylori identified. An esophagus biopsy revealed reflux esophagitis and gastric mucosa with chronic inflammation. A physical examination was completed. The impression was of peptic ulcer disease. The VA examiner commented that the symptoms were ongoing since 1993 when the Veteran was hospitalized for duodenal ulcer disease. The Veteran was on Omeprazole which he reported did not provide significant relief. His EGD from March 2007 showed multiple gastric polyps which were benign and there was GERD on pathology.         The Veteran was mildly anemic but did not show frank iron deficiency anemia.        He had not used NSAIDs since 1993 and continued to have symptoms of reflux. According to the VA examiner, whether the Veteran's GERD was a continuation of the duodenal ulcer and gastritis in 1993, in the absence of use of NSAIDs or even Tylenol since 1993 could not be commented upon with resorting to mere speculation. The Veteran did have a hiatal hernia on EGD which was considered a likely contributory factor to GERD.

During the March 2010 Travel Board hearing, the Veteran in testimony presented in connection with ulcer disease stated that he had the manifestation of blood in the stool, and also periods of intermittent weight loss and weight gain.

Upon VA re-examination in July 2011, the Veteran recounted being on treatment for an ulcer ever since going to a VA medical facility in the early 1990s. He stated that he continued to have symptoms four to five times per week, with mainly a burning sensation and pain in the abdomen. This was a sharp pain occurring four to five times a week, and he was not sure what precipitated it, but it subsided on its own within 30 minutes or less. He also reported nausea and vomiting of digested food. He described having several soft bowel movements, sometimes associated with bright rectal bleeding. There was no hematemesis. He stated his appetite was good and his weight fluctuated by a few pounds. He had no recent hospitalization for an abdominal condition. He was not on any diet for peptic ulcer disease. Medications consisted of Omeprazole, psyllium powder, and iron supplements.   The Veteran recalled being diagnosed with an ulcer in 1993. He further stated he had an EGD study done for the first time in 1999, and second time about three years ago and was told he had no new ulcers. A physical examination was completed. Recent clinical tests were reviewed, including an upper GI study for the VA exam which showed hiatal hernia with reflux with good clearance; prominent thickened gastric fold consistent with gastritis; and gastric polyps. The overall diagnosis given was of "no evidence of duodenal ulcer or scar," hiatal hernia with reflux, and gastritis.  

Having reviewed the foregoing, the Board cannot find a tenable basis upon which to award a compensable disability evaluation for the Veteran's service-connected duodenal ulcer disease. Whereas the Veteran may have been treated in the past for a duodenal ulcer, the best medical evidence available to the Board strongly suggests that this condition does not current manifest in an active state. The Board readily acknowledges the constellation of gastrointestinal signs and symptoms the Veteran had reported -- pyrosis, melena, substernal pain, nausea and vomiting, intermittent weight fluctuation -- all of which is within the purview of lay observation and can readily be alleged. The fact remains however, that reviewing the preponderance of the competent evidence on the subject of medical diagnosis, a matter ultimately for resolution by a medical expert, the best supported clinical findings effectively rule out a current duodenal ulcer. In particular, there is the report of the July 2011 VA examination, which will be discussed in greater detail below. The Board acknowledges what are persistent reported gastrointestinal symptoms on the part of the Veteran, but without indication of any underlying duodenal ulcer disorder, there is no basis to presume that these conditions are incidental to service-connected disability. Numerous other nonservice-connected gastrointestinal conditions, including hiatal hernia and GERD have been cited as better explanations for the symptomatology that is shown. 

The determinative issue to this claim comes down to a question of the proper clinical diagnosis, and the Board focuses its analysis upon the contrasting opinions of the October 2008 and July 2011 VA medical examiners. 

Generally, where there are divergent medical opinions of record, it is the province of the Board to weigh these opinions, and their underlying bases, and determine which to accept as the most persuasive. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may consider and evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances). See also Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998).

In assessing medical evidence, whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated.  See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown,        5 Vet. App. 229, 232 (1993). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

From the July 2011 VA examination report, there is the clear diagnosis given of  "no evidence of duodenal ulcer or scar." What is readily apparent from the          July 2011 examination is that its diagnosis as given was predicated upon review of the clinical evidence, namely recent upper GI series studies that were demonstrably absent for the presence of a duodenal ulcer. The Board accords significantly greater probative weight to the conclusions expressed therein given their grounding in objective clinical fact, in contrast to the earlier pronouncement of the October 2008 VA examiner who diagnosed an ulcer premised largely upon the Veteran's subjective report of symptomatology. The October 2008 VA exam took into account the initial diagnosis of a duodenal ulcer and the Veteran's reported gastrointestinal symptomatology, but nothing further in regard to recent available medical data. To this extent, the Board recognizes the Veteran subjectively described many symptoms that sound as if they were attributable to an ulcer.        That notwithstanding, the Veteran also has several diagnosed nonservice-related gastrointestinal conditions that could have triggered these symptoms. Also, though the Veteran may competently report observable symptoms, he cannot himself competently diagnose the presence of what he believes to be an ulcer as a matter requiring medical judgment. See Grottveit, supra; Espiritu v. Derwinski,                      2 Vet. App. 492, 494 (1992). Meanwhile, the actual upper GI study obtained in connection with the October 2008 VA exam itself showed no objective signs of duodenal ulcer disease, and indicated only multiple gastric polyps and a hiatal hernia. The Board ultimately finds most probative the October 2011 VA examiner's conclusion in that it is founded upon medical fact not speculation, and moreover is consistent with what every recent clinical study has indicated that there is no duodenal ulcer present. 

Adding some further probative weight to the conclusion expressed by the October 2011 VA examiner is that the August 2006 VA examiner failed to diagnose duodenal ulcer disease. Notably, while technically outside the timeframe under review pertaining to the instant claim for increase, an October 2003 VA medical opinion on the subject also found on review of a January 2003 upper endoscopy and associated clinical findings that the Veteran "had no active peptic ulcer disease." 

In the absence of recent documented and persuasive evidence of a duodenal ulcer, the Veteran's gastrointestinal symptoms to the extent shown can be plausibly disassociated from the underlying service-connected disability of duodenal ulcer disease. Therefore, there is no basis for assignment of the minimum compensable rating of 10 percent for a duodenal ulcer which is mild in degree. A compensable evaluation is thus denied under provisions of the VA rating schedule.

The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 

In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, there initially is no basis to find that the Veteran's duodenal ulcer disease presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the applicable rating criteria are thorough, and he does not manifest nor describe symptomatology outside of that criteria. Indeed, the rating criteria seeks to provide a disability evaluation premised upon an assessment of the severity and attendant symptomatology of a duodenal ulcer condition. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. However, the Veteran has not shown that his service-connected disability under evaluation has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular ratings.        It should be noted that on the most recent VA examination of July 2011, the Veteran denied any impact of his duodenal ulcer upon employability, and the VA examiner found no evidence of the same. Moreover, the Veteran's service-connected disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For these reasons, the Board is denying the claim for increased rating for duodenal ulcer disease. This determination takes into full account the potential availability of any further "staged ratings" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. 

Increased Rating for Residuals of Right Forearm Injury 

Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26.

When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R.          §§ 4.40, 4.45 and 4.59.

Presently, the Veteran's service-connected residuals of a right forearm injury are evaluated as 10 percent disabling under provisions of 38 C.F.R. § 4.114,       Diagnostic Code 7804, pertaining to an unstable or painful scar, this being indicative of a post-surgical scar associated with the underlying injury. 

In determining the appropriate disability evaluation for right forearm injury residuals, the Board will focus both upon the extent of underlying injury (to be rated, presumably, in accordance with limitation of motion) and the extent of associated post-operative scar residuals at the injury site. Hence, the rating criteria premised upon limitation of motion and scars are set forth below.  

Additional diagnostic codes for consideration include 38 C.F.R. § 4.71a,  Diagnostic Code 5206 for limitation of flexion of the forearm, which when involving a major extremity (has here) provides for 0 percent rating for flexion limited to 110 degrees; 10 percent rating for flexion limited to 100 degrees;           20 percent rating for flexion limited to 90 degrees; 30 percent rating for flexion limited to 70 degrees; 40 percent rating for flexion limited to 55 degrees; and 50 percent rating for flexion limited to 45 degrees. 

Diagnostic Code 5207 provides for assignment of 10 percent evaluation for an affected major extremity for limitation of extension of the forearm to 60 degrees;  20 percent evaluation for limitation of extension to 75 degrees; 30 percent evaluation for limitation of extension to 90 degrees; 40 percent evaluation for limitation of extension to 100 degrees; and 50 percent evaluation for limitation of extension to 110 degrees. 

Under Diagnostic Code 5208, a 20 percent rating is assigned where there is flexion of the forearm limited to 100 degrees and extension limited to 45 degrees. 


Also, Diagnostic Code 5213 provides for the evaluation of impairment of supination and pronation of the forearm. A 10 percent rating applies to limitation of supination to 30 degrees of less. A 20 percent rating applies where involving a major extremity corresponds to limitation of pronation if there is at least motion lost beyond the last quarter of arc, or the hand does not approach full pronation; or otherwise, there is loss of movement (i.e., bone fusion) where at least the hand is fixed near the middle of the arc, or there is moderate pronation. A 30 percent rating applies where there is limitation of pronation with motion lost beyond the middle of arc, or loss of bone fusion with the hand fixed in full pronation. A maximum 40 percent rating applies when there is loss of bone fusion with the hand fixed in supination or hyperpronation. 

When evaluating forearm and wrist injuries under Diagnostic Codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle or nerve injury are to be separately rated and combined not to exceed rating for loss of use  of hand.

The rating schedule further provides that normal range of motion for the elbow is from 0 degrees of extension to 145 degrees of flexion. Normal forearm supination  is from 0 to 85 degrees. Normal forearm pronation is from 0 to 80 degrees. See 38 C.F.R. § 4.71a, Plate I.

Also potentially applicable is 38 C.F.R. § 4.71a, Diagnostic Code 5215, for limitation of motion of the wrist. Pursuant to that rating criteria, a 10 percent rating is assigned for either a major or minor upper extremity when there is palmar flexion limited in line with forearm; or dorsiflexion less than 15 degrees.

Turning to the applicable rating criteria for scars, effective August 30, 2002, VA revised the schedular rating criteria for the evaluation of dermatological disorders. See 67 Fed. Reg. 49,596 (2002) (codified at 38 C.F.R. § 4.118). The Veteran's condition must therefore be evaluated under both the former and revised criteria, though the revised criteria may not be applied at any point prior to the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2011); VAOPGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003).
Prior to August 30, 2002, 38 C.F.R. § 4.118, Diagnostic Code 7803 provided for a 10 percent rating for scars that were superficial, poorly nourished, with repeated ulcerations. Diagnostic Code 7804 provided for a 10 percent rating for scars that were superficial, tender, and painful on objective demonstration. Diagnostic Code 7805 provided that other scars (not falling within the criteria of Diagnostic Codes 7800 through 7804) were to be rated on the basis of limitation of function of the part affected.

Under the rating criteria effective August 30, 2002, Diagnostic Code 7801 provides that scars other than on the head, face, or neck, that are deep or that cause limited motion, and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. According to the revised version of Diagnostic Code 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. Under the revised version of Diagnostic Code 7803, a scar that is superficial and unstable warrants the assignment of a maximum 10 percent rating. Diagnostic Code 7804 further provides that a scar that is superficial and painful on examination warrants the assignment of a 10 percent rating. Also, Diagnostic Code 7805 provides that other scars (not otherwise considered under the rating schedule) are to be rated on the basis of limitation of function of the affected part.

Effective October 23, 2008, VA again revised the criteria for the evaluation of scars. 73 Fed. Reg. 54,710-12 (Sept. 23, 2008). Here again, the former criteria remains applicable even after the effective date of the change in regulation.              See VAOPGCPREC 7-2003. The implementing regulation for the new rating criteria provides that these revisions apply only to applications for benefits received by VA on or after October 23, 2008. A claimant rated under a previous version of the criteria may request review under the most recent criteria. The Veteran's claim for increase preceded by several years October 2008, and he has not specifically requested evaluation under the latest revised criteria. That having been said, for          the sake of thoroughness, as the Veteran has several scars of the right forearm,                the Board will consider the newest regulations. 

Under this most recent criteria, Diagnostic Codes 7801 and 7802 continue to provide for assignment of disability evaluations on the basis of surface area of the affected scars. Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, 20 percent rating for three or four scars, and 30 percent rating for five or more scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that where one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable.

Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.           A rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code.

Relevant to this claim, the Veteran underwent a July 2002 VA Compensation and Pension examination of the joints, then reporting having sustained a right arm injury in service when he fell while horseback riding in April 1973. He had several operations with a residual scar. Per the Veteran's reported history, he continued to have pain over the area of the right forearm, and also described numbness and tingling of the right forearm and hand. He was right-handed. He stated that he had satisfactory functional use, but indicated he was using his left hand more because of pain in the right arm. On physical exam, there was noted to be a focal area of swelling on the dorsal radial aspect of the proximal forearm region. There was a well-healed 3-cm scar over the area. The mass was somewhat tender and measured 3.5-cm by 4-cm. The scar was nonadherent to the underlying structures. Both elbows lacked 5 degrees from terminal extension, and had 140 degrees of flexion. Full supination and pronation were present. Both wrists had 70 degrees of dorsiflexion and 55 degrees of palmar flexion. The Veteran made a good fist in both  hands and could oppose the thumb to remaining fingertips satisfactorily. Grip strength was on the order of 4/5 on the right as compared to 5/5 on the left. Otherwise, there were no focal strength deficits noted in the upper extremities.    The upper extremities measured 34-cm on the right and 33-cm on the left. The proximal forearm measured 30-cm on the right and 29-cm on the left. Reflexes and sensation were intact in the upper extremities. X-rays of the right forearm were obtained.

The impression given was of an old injury of the right forearm, postoperative times two including excisional biopsy of a mass describing progressive, degenerative and reparative fibrotic process. No myositis ossificans was present. According to the VA examiner, to address the Deluca provisions, there was no pain on motion at this time. Per the Veteran's history, he had increased pain with use and this could further limit function. It was not considered feasible, however, to attempt to express any of this in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty.

Following this VA exam, the Board issued an August 2004 decision in part denying the claim for initial evaluation in excess of 10 percent for right forearm injury residuals. The Veteran filed an appeal to the Court, which issued an October 2006 Memorandum Decision which determined that the Board's decision (in reliance upon the July 2002 VA examination) failed to properly address the subject of the Veteran's functional loss in rating the disability in question, as a factor both in evaluating limitation of motion of the right forearm, and in application of Diagnostic Code 7805 for rating a scar based on limitation of function. Subsequent consideration of this case by the Board through additional remanding sought to correct this prior deficiency outlined by the Court.

Thereafter, the Veteran underwent examination for scars in October 2006, and described an initial right forearm injury in service, followed by several surgeries. He reported since that time having had numbness and pain daily for all day long, the pain which had increased to 6/10 in the past few years. The pain was constant and aching, and there were no alleviating or aggravating factors. He took one aspirin a day but this did not help at all. On physical exam, there were several scars. On the right arm there was a 2-cm by .5-cm scar, linear, on the lateral aspect of the right arm. It was slightly raised on the lateral end. It was nontender, and nonadherent to the underlying tissue, with normal texture of the skin. There was elevation at the lateral end of the scar on palpation. The scar was superficial, with no inflammation, edema or keloid formation. The color of the scar was the same as the rest of the skin. There was no induration or inflexibility of the skin in the area of the scar. There was no limitation of motion or other limitation of function caused by the scar. Next, on the right forearm on the extensor aspect below the elbow there was a linear scar of 3-cm by 1-cm, with the same properties as the aforementioned scar (i.e., it was nontender, nonadherent, with normal texture, etc.). Next, on the right forearm on the extensor surface below the scar number two there was another linear scar    3-cm by .3-cm on the mid arm, again with identical descriptive properties. The impression given was scars of the right upper extremity, which were well-healed and stable. According to the VA examiner, the pain in the right upper extremity  was not likely due to the scars. At this point, the reason for the chronic pain      could not be commented upon without resorting to mere speculation.

Upon VA examination in March 2008, the Veteran described having had occasional right forearm swelling at different times with varying amounts of numbness and pain, which occurred four to five times per week. Sometimes the pain was bad enough to where he had to write with the left hand. He reported pain continuously at the 10/10 level, and stated he had tried pain relievers without much improvement, though he felt like he was normal with his activities of daily living with regard to use of his right upper extremity due to pain. On physical exam, the bilateral upper extremities had normal sensation to light touch in the median, ulnar, radial, muscular kineses and axillary nerve distributions. The Veteran had 2+ radial pulses bilaterally. With regard to motor strength, on the right side there was 4/5 grip strength, 4+/5 finger flexion and extension, 4-/5 wrist flexion, 4/5 pronation, 4/5 supination, 5/5 biceps, and 4+/5 triceps. Range of motion was equal bilaterally including elbow range of motion from 0 to 145 degrees bilaterally. Forearm pronation was to 0 degrees bilaterally. Forearm supination was to 85 degrees bilaterally, although the last 5 degrees of supination was slightly painful on the right side. Wrist extension was to 70 degrees bilaterally, wrist palmar flexion to 70 degrees bilaterally, wrist radial deviation to 20 degrees and wrist ulnar deviation to 45 degrees on the left, versus to 40 degrees on the right. Repeated range of motion did not lead to any loss of range of motion, but the Veteran did have pain each time he ulnarly deviated on the right.

Further indicated was that the Veteran had four scars on his right upper extremity, from proximal to distal. The first one was over the juncture of his right deltoid/biceps region. It was 1.5-cm in length with the posterior one-half being thickened and darkened and non-tender, with no adherence to abnormal adherence found to the underlying tissue. The second scar was just proximal to the lateral elbow which was very faint, and only noted on the Veteran's prompting during the exam. It was approximately 4-cm in length and non-tender, without any abnormal skin adhesion to the deep tissue. The third one was what appeared to be a surgical scar on the oblique proximal forearm with normal mobility of the skin, though abnormal erythema was noted. There was some slight irregularity of the palpable muscle deep to that. On passive and active range of motion testing the regular muscle appeared to be the extensor carpi omeris. The fourth scar was 4-cm over the mid forearm and also oblique in nature and over the subcutaneous border of the ulna, which was less tender to palpation than the proximal one with normal skin mobility over the underlying tissue. The only keloid formation was the first of the four scars over the proximal deltoid/biceps junction. There was no depression of any of the scars, except for palpation of the underlying tissues beneath the third scar which was the proximal forearm scar. Forearm girth as measured at the maximal region was 27.5-cm on the right and 28-cm on the left. Repeated range of motion four times in all motions did not decrease range of motion, or cause progressive increase in pain although he did have some baseline pain with resisted radial and ulnar deviation of the right wrist. X-rays from throughout the right upper extremity showed no signs of fracture or dislocation. 

The assessment was right forearm lacerations with underlying extensor carpi ulnaris injury. It was noted that the Veteran did have pain with resisted ulnar deviation of his right wrist which would be explained by his underlying injury. Other areas of weakness did not correlate well with his physical findings, especially that of biceps and triceps pain associated with complaint of some pain on exam. The VA examiner believed that these findings were not related to the service-related injury.               The examiner continued that to address the Deluca provisions, there was pain with testing of the right forearm musculature. It was conceivable that pain could further limit function as described particularly after repetitive use of the right forearm. However, it was considered not feasible to attempt to express any of this in terms of additional limitation of motion as these factors could not be determined with any degree of medical certainty. 

Most recently, the Veteran again underwent VA examination in July 2011, then describing daily 10/10 pain localized to the area of the right proximal forearm and elbow, exacerbated with movement, and with very little relief. He denied any recent history of physical therapy or injections. He did use Celebrex on a fairly regular basis, which only helped the pain minimally. He stated that the pain experienced in the proximal forearm and lateral aspect of his elbow did affect his activities of daily living. He stated that his pain affected his ability to do his prior occupations in construction and as a business development planner, as he had trouble with routine lifting. On physical examination, the overlying skin of the right forearm was intact. There was a well-healed scar over the lateral aspect of the proximal forearm that measured 3.5-cm by 2-mm. There was no evidence of skin breakdown associated with the scar. The scar was nonpainful on exam, and there was no limitation of motion or other limitation of function. There was no inflammation, edema, or keloid formation associated with the scar. There was palpable soft tissue mass in association with the scar, measuring 4-cm by 3-cm. There were no associated overlying skin changes. Given the Veteran's history, this was consistent with a muscle herniation through a fascial defect as a result of his previous open wound in this area. The area itself was nonpainful to touch. He was focally tender to palpation over his lateral epicondyle at the origin of his common extensor tendon. Otherwise there were no other focal areas of tenderness to palpation about the anterior, medial or posterior aspects of the elbow. There were no other areas of tenderness to palpation about the forearm. Range of motion consisted of elbow flexion to 145 degrees, nonpainful through all range of motion. Forearm supination was to 85 degrees and nonpainful. Forearm pronation was to 80 degrees and nonpainful. There was no increase in pain or increase in loss of motion with repetitive range of motion testing times three. The Veteran did have pain localized just distal to his lateral epicondyle, with resisted wrist extension. He also had pain localized to this area with resisted extension of his long finger. 
X-rays of the right elbow demonstrated no acute fractures, dislocations, or other bony abnormalities. His joint spaces of the elbow were well-maintained without any evidence of chronic degenerative or destructive processes. There was no evidence of soft tissue masses noted. X-rays of the right forearm demonstrated no acute fractures, dislocations, or other bony abnormalities. There were no appreciable soft tissue masses noted. The impression given was chronic lateral epicondylitis, right upper extremity. 

The VA examiner further indicated that given the Veteran's history, physical exam findings and imaging studies, the pain he was having was most likely from chronic lateral epicondylitis. It was the examiner's opinion that this was not related to the previous injury sustained to the right forearm. When asked to localize his pain, it was just distal to the lateral epicondyle at the origin of his common extensor tendon. He had no pain on palpation over his previous scar from his open forearm wound. He also had pain elicited with resisted wrist extension and finger extension, again consistent with lateral epicondylitis. In talking with the Veteran, it sounded as if he had never received treatment for this condition. The examiner felt that with conservative treatments consisting of use of a tennis elbow strap, or injections, or tennis elbow injections, that the Veteran would likely get good relief of his pain. The examiner continued that to address the Deluca provisions, the Veteran did not have significant pain on simple range of motion testing of his elbow. He did have pain on palpation and with resisted wrist extension, localized to the origin of his common extensor tendon of the forearm. It was conceivable that pain could worsen and further limit function. It was not deemed feasible, however, to express any of this in terms of additional loss of motion as this could not be determined with any degree of medical certainty. 

Reviewing all of the foregoing, the Board does not ascertain the basis to award          in excess of a 10 percent disability evaluation for the Veteran's residuals of a right forearm injury. Evaluating first the extent of disability involving limitation of motion per section 4.71a of the VA Rating Schedule, the requirements for assignment of a compensable rating upon this basis have not been satisfied at any point. Throughout several VA exams, the Veteran has not demonstrated limitation of flexion of the right forearm to 110 degrees or less, or limitation of extension to 45 degrees or less, required under Diagnostic Codes 5206 and 5207 respectively to warrant a minimum 10 percent evaluation. Nor for that matter has the Veteran's limitation of motion met the dictates of Diagnostic Code 5208, i.e., for forearm flexion limited to 100 degrees and extension to 45 degrees. Nor does the Veteran experience associated wrist limitation of motion of dorsiflexion less than 15 degrees, or palmar flexion limited to in line with the forearm. Moreover, the most recent October 2011 VA exam demonstrated no diminution of these objective findings with repetitive motion times three, and range of motion in all planes was nonpainful. Thus, there is no indication of objectively quantifiable additional lost range of motion attributable to pain, weakness, fatigue, or other types of functional loss. See Deluca, supra; 38 C.F.R. §§ 4.45, 4.49. The Board is satisfied that there is sufficient evidentiary support for ruling out functional loss as a determinative factor in evaluating the Veteran's range of motion, consistent with what the October 2006 Court Memorandum Decision requested that the Board take into consideration. Thus, a separate compensable rating cannot be supported on the grounds of limitation of motion involving the right upper extremity. 

Turning to the evaluation of the Veteran's post-operative scars to the right forearm from treatment received during military service, there is no basis here for any greater evaluation than the 10 percent rating already reflective of the Veteran's right forearm scars. While the repeated VA exams have documented more than one post-surgical scar, the extent of symptomatology shown does not correspond to a higher evaluation in accordance with the applicable rating criteria. Applying the rating criteria from prior to August 30, 2002, none of the Veteran's scars are shown to have been superficial and poorly nourished, with ulcerations. See 38 C.F.R. § 4.118, Diagnostic Code 7803 (2002). Nor are the Veteran's scars shown to be superficial and painful, apart from one instance, under the criteria both prior to and since August 30, 2002. See Diagnostic Code 7804. Generally, at no one time has the Veteran had more than one scar that was demonstrably painful on palpation.            The scars shown do not meet the surface area requirements set forth under revised Diagnostic Codes 7801 and/or 7802 for higher than a 10 percent rating. Nor is there indication of any functional impairment attributable to a post-surgical scar, ratable under all versions of Diagnostic Code 7805. At most, there has been identified on the recent VA exam possible muscle herniation at the site of one post-operative scar, but no associated limitation of motion or objectively quantifiable functional limitation has been found to exist. All range of motion studies have been at or near normal. There is no resultant pain or discomfort. Thus, a basis for compensable evaluation in accordance with limitation of function is not present. Moreover, the latest amendments to 38 C.F.R. § 4.118 permit under Diagnostic Code 7804 the assignment of separate ratings where more than one scar is unstable or painful, but as previously explained, the available clinical findings do not establish that two scars concurrently have this effect at any one point in time. In summary, the Veteran's post-operative scars involving right forearm injury residuals do not support the assignment of higher than 10 percent under the rating schedule. 

In rating the Veteran's condition the Board is cognizant of the entire disability picture, including the fact that the July 2011 VA examiner specifically diagnosed the presence of chronic lateral epicondylitis, right upper extremity, with associated pain and difficulty upon wrist extension and resisted extension of the long finger. While this initially would seem to have some relation to underlying service-connected disability, the VA examiner was clear in stating that this was a distinct condition with no etiological connection to the previous injury sustained to the right forearm. Given this definitive medical pronouncement, the symptomatology associated with chronic lateral epicondylitis can reasonably be distinguished from that which is attributable to service-connected disability. See generally, Mittleider v. West, 11 Vet. App. 181, 182 (1998). 
 
Considering again the criteria for potential assignment of an extraschedular evaluation under Thun, there is no showing that the Veteran's right forearm injury residuals present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the applicable rating criteria are thorough, and he does not manifest nor describe symptomatology outside of that criteria. Indeed, the rating criteria seeks to provide a disability evaluation premised upon both orthopedic and dermatological manifestations of the underlying condition. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. However, the Veteran has not shown that his service-connected disability under evaluation has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular ratings. Also, on the           July 2011 VA examination, it was indicated that the Veteran's primary condition affecting the right upper extremity was chronic lateral epicondylitis, not service-connected disability, and that in any event this "tennis elbow" condition would not preclude gainful employment with proper treatment. Moreover, the Veteran's service-connected disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in             38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For these reasons, the Board is denying the claim for increased rating for right forearm injury residuals. This determination takes into full account the potential availability of any further "staged ratings" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. 












ORDER

The petition to reopen a claim of service connection for a fractured jaw is denied.

The petition to reopen a claim of service connection for umbilical and ventral herniorrhaphies is denied.

A compensable rating for duodenal ulcer disease is denied.

An initial rating in excess of 10 percent for residuals of a right forearm injury              is denied. 




____________________________________________
TARA L. REYNOLDS
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs