Citation Nr: 1301744	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  09-47 436	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability.

2. Entitlement to a rating in excess of 10 percent for a cervical spine disability.

3. Entitlement to a rating in excess of 10 percent for right shoulder impingement.

4. Entitlement a rating in excess of 10 percent for left shoulder impingement.

5. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome in the right knee.
  
6. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome in the left knee.

7. Entitlement to a rating in excess of 10 percent for residuals of a fracture to the right hand.

8. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disorder (GERD).

9. Entitlement to a rating in excess of 10 percent for tinea pedis.  

10. Entitlement to a compensable rating for scars to the little finger of the left hand and to the palm of the right hand.
 
11. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for scars to the thighs and chest.

12. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for calluses to the feet.

13. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for allergic rhinitis.  

14. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for bilateral hearing loss.  

15. Entitlement to service connection for an upper respiratory infection, to include as due to asbestos exposure. 

16. Entitlement to service connection for scars to the left index finger, right middle finger, right ear, right shoulder, chin and forehead. 

17. Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from October 1987 to April 2001.  

This matter is on appeal from December 2008 and May 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  Jurisdiction of the claim is currently with the RO in Roanoke, Virginia.  

In the December 2008 decision, the RO declined to reopen a previously denied claim of service connection for bilateral hearing loss; this was then reconsidered in the May 2009 decision, and the matter was reopened.  However, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim irrespective of the RO's actions.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened....").  The issue has therefore been recharacterized as above.

The remaining issues were addressed in the May 2009 rating decision.

An appeal on the issue of entitlement to service connection for tinnitus was also perfected by the Veteran.  However, in a July 2011 decision, he was granted service connection for this disorder.  This represents a full grant of the benefit sought on appeal, and it is no longer before the Board. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994).

The issues of entitlement to service connection for a respiratory disorder and bilateral hearing loss, as well as evaluation of a cervical spine disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, Diagnostic Code.


FINDINGS OF FACT

1. Throughout the course of the appeal, the Veteran's lumbar spine disability has been characterized by pain and a slightly limited range of motion; forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months have not been shown.

2. Throughout the course of the appeal, the Veteran's left and right shoulder disabilities have been characterized by no worse than slight pain when raising the arms above the head and some limitation in carrying heavy objects; ankylosis of scapulohumeral articulation, manifested by favorable abduction to 60 degrees, allowing the mouth and head to be reached, limitation of motion of the arm at shoulder level, recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, malunion of the scapulohumeral joint with moderate deformity, or dislocation or nonunion with loose movement of the clavicle or scapula have not been shown.  

3. Throughout the course of the appeal, the Veteran's left and right knee disabilities have been characterized by no worse than some pain in movement; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, favorable ankylosis of either knee at full extension or in slight flexion between 0 and 10 degrees, meniscal damage or instability in any form have not been shown.  

4. Throughout the course of the appeal, the Veteran's right hand disability has been characterized by pain in cold temperatures; favorable or unfavorable ankylosis of any of the fingers or thumb, or limitation of motion of the thumb with a gap of more than two inches, have not been shown.

5. Throughout the course of the appeal, the Veteran's GERD has been characterized by occasional dyspepsia and dysphagia; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health, have not been shown. 

6. Throughout the course of the appeal, the Veteran's tinea pedis has been characterized by irritation and flaking between the toes; symptoms covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or the need for systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12 month period, have not been shown.

7. Throughout the course of the appeal, the two scars to the Veteran's right hand and left little finger were considered to be small, but occasionally painful; scars that were deep and nonlinear and an area or areas of at least 6 sq. in. (39 sq. cm) but less than 12 sq. in., superficial and nonlinear, and of an area of 144 sq. in. (929 sq. cm) or greater, or unstable have not been shown. 

8. In a January 2003 rating decision, the claims of entitlement to service connection for scars to the thighs and chest, calluses on the feet and allergic rhinitis were denied on the basis that none were shown during active duty; the Veteran did not appeal the decision or submit additional evidence within one year of the decision.

9. Evidence added to the record since the January 2003 decision became final, when viewed by itself or in the context of the entire record, does not relate to an unestablished fact that is necessary to substantiate the claims of service connection for residuals of scars to the thighs and chest, calluses on the feet and allergic rhinitis.
  
10. In a January 2003 rating decision, the claim of entitlement to service connection for bilateral hearing loss was denied on the basis that a current disability was not shown; the Veteran did not appeal the decision or submit additional evidence within one year of the decision.

11. Evidence added to the record since the January 2003 decision became final, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claims of service connection for bilateral hearing loss. 

12. Scars to the left index finger, right middle finger, right ear, right shoulder, chin and forehead were not shown in service or for many years thereafter, and are unrelated to active duty service.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for a thoracolumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012).

2. The criteria for a rating in excess of 10 percent for right shoulder impingement have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5200-5203 (2012).

3. The criteria for a rating in excess of 10 percent for left shoulder impingement have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5200-5203 (2012).

4. The criteria for a rating in excess of 10 percent for patellofemoral syndrome in the right knee have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5024, 5256-5259, 5260, 5261 (2012).

5. The criteria for a rating in excess of 10 percent for patellofemoral syndrome in the left knee have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5024, 5256-5259, 5260, 5261 (2012).

6. The criteria for a rating in excess of 10 percent for residuals of a fracture to the right hand have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5218-5222 (2012)

7. The criteria for a rating in excess of 10 percent for GERD have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.114, Diagnostic Code 7346 (2012).

8. The criteria for a rating in excess of 10 percent for tinea pedis have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, Diagnostic Code 7806 (2012).

9. The criteria for a 10 percent rating, but no more, for scars to the little finger of the left hand and to the palm of the right hand have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, Diagnostic Code 7801, 7802, 7804 (2012).

10. The January 2003 rating decision that denied the Veteran's claims for entitlement to service connection for scars to the thighs and chest, calluses on the feet, allergic rhinitis, and bilateral hearing loss is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

11. Evidence received subsequent to the January 2003 rating decision is not new and material, and the requirements to reopen the claim for entitlement to service connection for scars to the thighs and chest have not been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012).

12. Evidence received subsequent to the January 2003 rating decision is not new and material, and the requirements to reopen the claim for entitlement to service connection for calluses on the feet have not been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012).

13. Evidence received subsequent to the January 2003 rating decision is not new and material, and the requirements to reopen the claim for entitlement to service connection for allergic rhinitis have not been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012).

14. Evidence received subsequent to the January 2003 rating decision is new and material, and the requirements to reopen the claim for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156 (2012).

15. Scars to the left index finger, right middle finger, right ear, right shoulder, chin and forehead were not incurred in or aggravated by service, and are not related to service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  

The duty to notify was satisfied by way of letters sent to the Veteran in July 2008 and March 2009 that fully addressed all notice elements and were sent prior to the initial RO decisions in these matters.  The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  They also provided the Veteran with notice of what types of information and evidence were needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  

While it is noted that the claim for an increased rating for the scar to the palm of the Veteran's right hand was not specifically listed, this is of no prejudice.  Notably, VA is not required to provide notice of that is specifically tailored to a veteran's service-connected disabilities.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Rather, the simple fact that the Veteran here was informed that he must show that his service-connected disabilities have worsened in severity, and asked about how the disability impacts daily and occupational functioning, are sufficient for notice purposes, even if his scar claim was not explicitly listed.  

In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.

The July 2008 and March 2009 notice letters explained the bases for the prior denials of the Veteran's claims related to hearing loss, calluses, scars, and allergic rhinitis, and no additional notice is warranted.  Further, with regard to bilateral hearing loss, the claim is being reopened and, as such, any notice defect is of no prejudice to the Veteran.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records.  Further, the Veteran submitted statements in support of his claims.  

VA examinations with respect to the issues on appeal were also obtained in July 2002, April 2009 and April 2011.  38 C.F.R. § 3.159(c) (4).  When VA undertakes to provide a VA examination or, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

With regard to the Veteran's service connection claim for scars, the Board acknowledges that a VA medical opinion was not obtained to determine the nature and etiology of this disorder.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (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.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the Federal Circuit upheld the determination that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran, in which case an examination may not be required).

In this case, the treatment records do not reflect that these scars were present during active duty, and there would be no basis for a VA examiner to provide an opinion.  Therefore, the Board finds that a remand for a VA opinion would not be beneficial in the adjudication of this issue to the extent that it was denied, and is thus not required in this case.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

With regard to previously denied claims, VA need not conduct an examination with respect to applications to reopen such claims because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured.  Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened).  

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  However, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.

The Court of Appeals for Veterans Claims (CAVC or the Court) has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint.  The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See 38 C.F.R. § 4.59.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Thoracolumbar Spine 

The Veteran is currently rated at 20 percent for degenerative arthritis of the lumbar spine, with spasms in the thoracic spine, under the general rating formula specified in 38 C.F.R. § 4.71a.  In order to warrant a rating in excess of 20 percent under this formula, the evidence must show: 
* Forward flexion of the thoracolumbar spine to 30 degrees or less; 
* Favorable ankylosis of the entire thoracolumbar spine; or
* Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (all at 40 percent).

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  See Plate V, 38 C.F.R. § 4.71a.  Moreover, Note (1) of Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."

In this case, a rating in excess of 20 percent is not warranted.  First, limitation of motion to 30 degrees or less or ankylosis of any sort has not been shown.  Notably, at a VA examination in April 2009, the Veteran stated that he experiences pain and cramping that is alleviated by rest and medication.  Upon examination, muscle spasm was absent, although some tenderness was observed at the T10-T11 disc area.  His range of motion was observed to be 65 degrees of flexion, although pain began at 55 degrees.  He was not, however, further limited in range of motion after repetitive use.  Ankylosis was not observed.  

At a VA examination in April 2011, the Veteran stated that pain has been present for the past 25 years, and that it limits his ability to walk distances.  He also complained of current symptoms such as stiffness, fatigue and spasms.  Upon examination, the Veteran exhibited a full range of motion, including 90 degrees of forward flexion.  However, pain was evident at 70 degrees.  Muscle spasms were absent, and no tenderness was observed.  Moreover, there was no indication of guarding upon movement nor was there any weakness.  Muscle tone was normal, and a straight leg raising test was normal bilaterally.  Ankylosis was absent.  

In addition to these VA examinations, none of the relevant outpatient treatment records indicated a diminished range of motion.  For example, in February 2008, the Veteran complained of tenderness along the spine upon palpation.  However, no pain was observed upon examination, and no pain was elicited by motion.  More recently, in September 2011, he specifically denied experiencing any back pain although there was some muscle aching.  Again, pain was not elicited with motion.  Finally, at an evaluation in April 2012, his spine was tender upon palpation.  However, he also exhibited a full range of motion that was not accompanied by any pain.  Therefore, as ankylosis or forward flexion to 30 degrees of less has not been shown, a rating in excess of 20 percent is not warranted on this basis.  

In so concluding, the Board has also considered a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  However, an increased evaluation for the Veteran's service-connected low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the 20 percent rating already assigned.  While the Veteran has complained of pain, there has not been evidence to show that such pain has resulted in additional limitation of motion sufficient to warrant a rating greater than the one he currently has.  Limitation was only to 55 degrees at worst, which is still well in excess of the 30 degrees of limitation necessary to warrant an increased rating.  

Next, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months has not been shown.  Specifically, at both his April 2009 and April 2011 VA examinations, the Veteran specifically denied that his back disorder had ever caused him to experience incapacitating episodes.  While he did state that his back pain restricts his activities, he did not assert that he is incapacitated.  Moreover, there is no indication that he has ever prescribed periods of bed rest.  

The Veteran's outpatient treatment records also do not reflect a history of incapacitating episodes.  While he underwent a number of evaluations, he never asserted that such episodes were present.  Therefore, as incapacitating episodes have not been shown, a rating in excess of 20 percent is not warranted on this basis. 

Next, the Board has considered whether a separate evaluation is warranted for any associated neurological abnormality.  Under 38 C.F.R. § 4.71(a), any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, is also to be evaluated under the appropriate diagnostic code.  See 38 C.F.R. § 4.71(a).

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.

With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a.

The rating schedule does not define the terms "mild," "moderate," or "severe" as used in this diagnostic code.  However, when the involvement is only a sensory deficit, the rating should be considered "mild," or at most, "moderate" in degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123.  The maximum rating to be assigned for neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, should be that for "moderate" incomplete paralysis.  38 C.F.R. § 4.124.

At both of his April 2009 and April 2011 VA examinations, the Veteran stated that he occasionally experiences numbness in the back and leg.  Given such symptoms, Diagnostic Code 8520, which provides the rating criteria for paralysis of the sciatic nerve, and well as neuritis and neuralgia of that nerve, is the most applicable diagnostic code.  Nevertheless, a separate compensable rating is not warranted based on neurological symptoms.  

Notably, at these VA examinations, the Veteran exhibited motor functioning that was within normal limits.  His sensory functioning was normal in the lower extremities.  Moreover, the Veteran denied experiencing any bowel or bladder dysfunction resulting from his lumbar spine disability.  Indeed, the VA examiner did not note any signs of intervertebral disc syndrome with nerve root involvement on either occasion.  

Similarly, there has not been indication of neurological involvement at the number of outpatient evaluations the Veteran has received.  For example, in February 2008, no decreased response to stimulation was noted in either lower extremity, and his deep tendon reflexes were normal.  At his most recent outpatient evaluation in April 2011, no sensory abnormalities were observed, nor was there any evidence of weakness in the extremities.  Moreover, his deep tendon reflexes were also normal.  Therefore, the Board concludes that a separate compensable rating for any associated other neurological disorder.

Overall, the evidence does not indicate that the Veteran has a forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or that he experiences intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Therefore, a rating in excess of 20 percent is not warranted for his low back disability.  

Shoulder Impingement

The Veteran currently has a 10 percent disability rating for impingement each shoulder by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5019 (addressing bursitis).  Disabilities characterized under this diagnostic code are rated based on limitation of motion of the affected parts, in the same manner as degenerative arthritis.  A 10 percent evaluation is assigned for painful limited motion which is not compensable under a joint-specific Code.  Thus, in order to warrant the next higher rating for the Veteran's bilateral shoulder disability, the evidence must show:
* Ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees, allowing the mouth and head to be reached (30 percent for the dominant side and 20 percent for the non-dominant side under Diagnostic Code 5200); 
* Limitation of motion of the arm at shoulder level (20 percent under Diagnostic Code 5201); 
* Recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level (20 percent under Diagnostic Code 5202); 
* Malunion of the scapulohumeral joint with moderate deformity (20 percent under Diagnostic Code 5202); 
* Dislocation or nonunion with loose movement of the clavicle or scapula (20 percent under 5203). 
See 38 C.F.R. § 4.71a (2012).

The Board concludes that a rating in excess of 10 percent is not warranted for either shoulder.  Specifically, at a VA examination in April 2009, the Veteran stated that he experiences pain in the shoulders approximately twice per day, but he can function with medication.  

Moreover, while tenderness was noted upon examination of the shoulders, there were no signs of edema, effusion, weakness or guarding of movement.  The Veteran's range of motion was only slightly limited, as he was limited by pain to 155 degrees of flexion in the right shoulder and 145 degrees in the left shoulder.  He was also limited by pain to only 125 degrees of abduction in the right shoulder and 115 degrees in the left shoulder.  The VA examiner noted that joint function was additionally limited in both shoulders by pain, fatigue and weakness, but such was not manifested in any further loss of range of motion.  

Next, at his April 2011 VA examination, the Veteran stated that he experiences weakness in the shoulders, but does not experience swelling, giving way, locking or fatigueability.  Upon examination, there was no indication of edema, effusion or weakness, although both joints were tender.  His range of motion was only slightly limited in both shoulders, as he was limited by pain to 130 degrees of flexion and 140 degrees of abduction in the right shoulder, and to 150 degrees in both flexion and abduction in the left shoulder.  Ankylosis was specifically noted to be absent.  

Veteran's outpatient treatment records also do not indicate that the Veteran's shoulders are so limited that a compensable rating would be warranted based on a Code specific to the shoulder joints.  In May 2009, for example, he had a full range of motion in the right shoulder and only a slightly limited range of motion in the left shoulder.  In August 2009, he stated that he experiences pain and numbness in the shoulders, but the pain was not increased by motion.   Therefore, an increased rating is not warranted based on limitation of motion.  

In considering range of motion, the Board has considered the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07 (1995).  In this case, while there was evidence that pain impacts his ability to move his shoulders, there has not been any evidence that indicates that it causes limitation that is so significant that an increased rating would be warranted.  Movement remains well above shoulder level; this degree of painful motion is contemplated under Code 5019.

Next, an increased rating is not warranted based on dislocation or malunion of the shoulder joints.  Significantly, neither the April 2009 nor the April 2011 VA examination noted a history of malunion or dislocation.  No laxity was observed upon examination.  Indeed, the Veteran has not asserted that he has experienced dislocation or malunion in either shoulder.  

The outpatient treatment notes also do not suggest that the Veteran has ever experienced dislocations or exhibits malunion of either shoulder joint.  Specifically, although the Veteran complained of pain in May 2009, he did not mention a history or dislocations or malunion.  Significantly, X-rays of the shoulders in April 2011 was normal.  Therefore, a rating in excess of 10 percent is not warranted based on dislocation or malunion of the shoulder joints.  

Overall, the evidence does not show ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees, limitation of motion of either arm at shoulder level, recurrent dislocation of or malunion of the scapulohumeral joint, or dislocation or nonunion with loose movement of the clavicle or scapula.  Therefore, a rating in excess of 10 percent for either of the Veteran's shoulder disabilities is not warranted.  

Knees

Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 or 5258/5259.  See VAOPGCPREC 23-97.  For example, when a knee disorder was already rated under Diagnostic Code 5257 (addressing lateral instability), the a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more).

Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion.  See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997).  In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint.  VAOPGCPREC 09-04.

Here, the Veteran is currently rated at 10 percent for patellofemoral syndrome in each knee under 38 C.F.R. § 4.71a, Diagnostic Code 5024 (addressing tenosynovitis).  Disabilities under this diagnostic code are rated based on limitation of the affected part in the same manner as arthritis; a 10 percent evaluation is assigned for painful limited motion which is not compensable under a joint-specific Code.  In order to warrant an increased rating for either the left or right knee based solely on limitation of motion, the evidence must show: 
* Limitation of flexion to 30 degrees (20 percent under Diagnostic Code 5260); 
* Limitation of extension to 15 degrees (20 percent under Diagnostic Code 5261); 
* Limitation of flexion to 45 degrees and limitation of extension to 15 degrees (two separate 10 percent ratings under Diagnostic Codes 5260 and 5261, respectively); or
* Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under Diagnostic Code 5256). 
See 38 C.F.R. § 4.71a (2012).  

After a review of the pertinent evidence, the Board determines that a rating in excess of 10 percent is not warranted for either knee based on limitation of motion.  Significantly, when the Veteran underwent a VA examination in April 2009, he stated that he has constant pain in both knees, although he can function with medication.  Other symptoms included stiffness, swelling, giving way and fatigueability.  

Upon examination, weakness and tenderness was noted bilaterally, and effusion was observed in the right knee.  The Veteran exhibited flexion limited by pain to 105 degrees in the right knee and 115 degrees in the left knee.  Extension was 0 degrees bilaterally with any additional limitation due to pain.  While the examiner noted that each knee was additionally limited due to repetitive use, there was no associated reduction in range of motion.  

At his most recent VA examination in April 2011, the Veteran stated that he has flare-ups approximately 2-3 times per week, each lasting about a day, which were precipitated by physical activity.  He found it difficult to both stand and walk, and was not able to run.  Tenderness was observed upon examination bilaterally, but no ankylosis was observed.  On this occasion, the Veteran was limited by pain to 130 degrees of flexion, and had full extension, in each knee.  

Moreover, none of the outpatient treatment records indicate a limitation of motion that would warrant an increased rating in either knee.  For example, in February 2008, the treating physician noted "abnormalities" in the knees, but there was no swelling, and his range of motion was normal.  In December 2009, the Veteran complained that he has continuous pain in the knees.  However, there was no indication that there was a limitation in range of motion.  

When evaluating the extent of the Veteran's disability in terms of range of motion, the Board also considered the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07 (1995).  It is noted that the VA examiners did observe additional limitation after repeated activity.  However, the VA examiners did not observe diminishment in range of motion due to the DeLuca factors.  As such, the functional limitation brought about by his knees is relatively mild, and is adequately contemplated by the 10 percent ratings currently assigned under Code 5024/5003.

Next, the Board considers whether a separate compensable rating is warranted based on internal derangement of the knee.  In order to warrant a separate rating for this type of disorder, the evidence must show one of the following: 
* Removal of the semilunar cartilage with residual symptoms (10 percent under Diagnostic Code 5259)
* Dislocation of the semilunar cartilage with frequent episodes of "locking," pain and effusion in the joint (20 percent under Diagnostic Code 5258); or 
* Recurrent subluxation or lateral instability (under Diagnostic Code 5257; 10 percent for slight symptoms, 20 percent for moderate symptoms, and 30 percent for severe symptoms). 
See 38 C.F.R. § 4.71a.

In this case, however, a separate rating based on injury to the semilunar cartilage or instability is not for application.  Notably, the Veteran has denied episodes related to instability or laxity, and the medical evidence does not indicate that he has ever received treatment to the semilunar cartilage.  The knees were both fully stable on objective testing in April 2009 and April 2011, despite subjective complaints of "giving way."  No examiner indicates any meniscal damage.  X-rays taken of the knees in November 2010 did not reveal a history of fracture, dislocation or joint abnormalities.  Accordingly, a separate rating based on repairs to the semilunar cartilage or for instability is not warranted. 

Overall, the evidence does not indicate that the Veteran has limitation of flexion to 30 degrees, limitation of extension to 15 degrees or favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees.  Moreover, there is no basis for a separate rating based on instability.  Therefore, a rating in excess of 10 percent is not warranted for either knee.  

Fracture to the Right Hand

The Veteran is currently rated at 10 percent for residuals of a fractures to the scaphoid and middle metacarpal of his right hand by analogy under 38 C.F.R. § 4.73, Diagnostic Code 5309 (Addressing impairment of the forearm muscles such that grip strength is diminished).  Diagnostic Code 5309 acknowledges that "the hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc."  Instead, injuries to this muscle group should be rated based on limitation of motion under 38 C.F.R. § 4.71a, with a minimum rating of 10 percent.  Therefore, any evaluation in excess of the minimum 10 percent under Code 5309 requires application of a Diagnostic Code governing musculoskeletal disorders.

In order to warrant a rating in excess of 10 percent for fractures to the scaphoid and middle metacarpal of his right hand (his dominant hand), the evidence must show:
* Favorable ankylosis of five fingers on the affected hand (50 percent under Diagnostic Code 5220); 
* Favorable ankylosis of four digits on one hand (50 percent for the thumb and any three fingers and 40 percent for the fingers under Diagnostic Code 5221); 
* Ankylosis of three digits on one hand (Diagnostic Codes 5218 and 5222);
- thumb and any two fingers (50 percent for unfavorable, 40 percent for favorable)
- index and two other fingers (40 percent for unfavorable, 30 percent for favorable)
- long, ring and little (unfavorable: 30 percent/favorable: 20 percent)
* Ankylosis of two digits on one hand (Diagnostic Codes 5219 and 5223);
- thumb and any other finger (40 percent for unfavorable, 30 percent for favorable)
- index and one other finger (30 percent for unfavorable, 20 percent for favorable)
- long and ring, long and little or ring and little fingers (20 percent for unfavorable) 
* Ankylosis of the thumb (20 percent under Diagnostic Code 5224); or
* Limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the opposing fingers (20 percent under Diagnostic Code 5228).  
See 38 C.F.R. § 4.71a.  However, the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were amputation to be performed.  38 C.F.R. § 4.68.

Based on the evidence of record, a rating in excess of 10 percent is not warranted for the Veteran's right hand disability, as ankylosis or limitation of motion has not been shown.  For example, at a VA examination in July 2002, he stated that he experienced "residual weakness" in the right hand which tends to be aggravated by cold weather and, when his hand hits an object, it causes him pain with a "jarring sensation."  He also stated that his poor grip impeded his ability to perform as a firefighter, as he could not grip the hose nozzle.  

Upon examination, the grip strength in his right hand appeared to be slightly diminished.  However, he stated that he was still able to write, tie his shoes and pick up pieces of paper without difficulty.  While the range of motion in index and middle finger were slightly diminished, he was able to touch the tips of his fingers to the medial transverse fold without any weakness, pain or lack of endurance.  

At a second VA examination in April 2009, the Veteran reported localized pain in the index finger that occurs approximately once per week, lasting approximately one hour.  While it is brought on by activity, it is relieved with rest.  He did not complain of any functional impairment resulting from this disorder.  He stated that he can tie shoelaces, fasten buttons and pick up paper without difficulty.  

Upon examination, he demonstrated the ability to touch the transverse crease of his palm with every finger and thumb.  The range of motion in the thumb was relatively full and was not additionally limited by pain, fatigue weakness, incoordination or repetitive use.  

At his most recent VA examination in April 2011, the Veteran stated that he experiences stiffness and pain, but does not experience weakness, lack of endurance, giving way or other similar symptoms.  It is typically aggravated by cold weather, but the aggravation is pain oriented, rather than additional limitation.  He denied any incapacitation in the hand in the past 12 months, nor did he assert that he experiences functional limitation from this condition.  

Upon examination, he did not exhibit ankylosis of the thumb, and there was no gap between any of the fingers and the thumb pad, nor was there any evidence of pain during this process or after repetitive motion.  Moreover, the individual fingers exhibited a normal range of motion.  No ankylosis was observed at any joint in the right hand.  

In addition to the VA examinations, the treatment records do not indicate that the Veteran has sought treatment for symptoms to his right hand.  For example, at an evaluation in September 2011, no localized joint pain or swelling was noted anywhere.  In February 2012, he exhibited normal movement in all extremities.  Significantly, while he did complain of knee and low back pain at an evaluation in April 2012, he did not mention any symptoms related to his right hand.  

The Board notes that the Veteran has complained of pain in his right hand, but the evidence does not indicate that it is additionally limiting.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07 (1995).  The VA examiners specifically noted that there was no additional limitation due to pain.  Moreover the mere presence of pain, even if present throughout the entire range of motion, does not warrant in increased rating unless it actually places additional limitation on range of motion.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

Therefore, the evidence of record does not indicate the presence of ankylosis in any fingers on the Veteran's right hand.  Moreover, he has routinely demonstrated the ability to touch his palm with all of his fingers.  Therefore, a rating in excess of 10 percent is not warranted based on the evidence of record.  

GERD

The Veteran is currently rated at 10 percent for GERD by analogy under 38 C.F.R. § 4.114, Diagnostic Code 7346 (addressing hiatal hernias).  Under this diagnostic code, the next-higher 30 percent rating is for application when the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health.
 
After a review of the evidence of record, the Board determines that a rating in excess of 10 percent is not warranted.  Specifically, at a VA examination in July 2002, he stated that he began to experience some discomfort in the upper chest while on active duty.  He has since developed "fullness" in the anterior cervical spine with some difficulty swallowing.  He currently uses Zantac, which affords some relief, but he is not required to use is every day.  He denied any weight loss, but has experienced some difficulty swallowing.  

Based on his statements, it cannot be said that his epigastric symptoms are persistently recurrent, even though there appears to be some difficulty swallowing.  Moreover, he has not asserted symptoms so severe as to result in substernal arm or shoulder pain, or any other health impairment.  To the contrary, his symptoms appear relatively well controlled by antacids.  

Next, at a more recent VA examination in April 2009, he stated that he experiences dysphagia, heartburn, epigastric pain, and regurgitation of stomach contents, which he stated occur constantly.  However, he has no arm pain or scapular pain.  He has never been hospitalized for this condition and, significantly, he does not experience any functional impairment from this disorder.  As such, even though he may experience dysphagia, the evidence does not indicate that his GERD is so severe as to result in considerable impairment of health.  

At his most recent VA examination in April 2011, the Veteran stated that he has difficulty swallowing at times, and has difficulty eating solid foods on other occasions.  Complaints do not reflect persistence.  Symptoms did not affect his body weight.  He denied any epigastric pain, and he denied any functional impairment from this disorder.  Upon examination, he appeared well nourished and in no acute distress.  The examiner did not find that it resulted in any anemia or malnutrition.  Thus, even though the Veteran has complained of epigastric symptoms, it does not appear that his symptoms are so severe as to result in considerable impairment of health.  

Significantly, although the Veteran underwent a number of outpatient evaluations, he has not indicated continuing gastroesophageal symptoms on these occasions.  For example, when he underwent an ear, nose and throat (ENT) consultation in May 2009, he complained of hoarseness, dysphagia and dyspepsia, but only since August 2008.  While he took medication for it, he did so only intermittently.  

A February 2012 treatment note indicated that the Veteran experiences esophageal reflux.  However, at treatment evaluations in both September 2011 and February 2002, he stated that his appetite had not decreased, there was no dysphagia, pain upon swallowing, heartburn or nausea.  

Therefore, while the Board has considered the Veteran's complaints of dysphagia and discomfort, the evidence does not indicate that there have ever been symptoms of substernal arm or shoulder pain, nor have his epigastric symptoms resulted in considerable health impairment or been persistently recurrent.  Accordingly, a rating in excess of 10 percent for his GERD is not for application. 

Tinea Pedis

Dermatophytosis type disorders, to include tinea pedis, are rated as disfigurement to the head, face or neck (Diagnostic Code7800), scars (Diagnostic Codes 7801-7805) or dermatitis (Diagnostic Code 7806), whichever is the predominant.   Here, the Veteran has been rated based on dermatitis and, as his disability does not involve head, face, or neck disfigurement or scarring, the rating criteria under Diagnostic Codes 7800-7805 do not apply. Thus, in order to warrant the next-higher 30 percent rating, the evidence must show either: 
* Dermatitis covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or 
* Systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12 month period.
See 38 C.F.R. § 4.118, Diagnostic Code 7806.  

Here, a rating in excess of 10 percent is not warranted, as the evidence does not indicate that dermatitis covering 20 to 40 percent of the body or exposed areas, nor does it show systemic therapy such as corticosteroids or immunosuppressive drugs.
For example, at his VA examination in July 2002, the Veteran stated that he used Vaseline to moisten his feet, but still developed itching and crusting.  While some calluses were present, there was no evidence of warts.  The presence of skin pathology was not mentioned.  

In at outpatient evaluation in April 2007, the treating physician observed lesions on the soles of the Veteran feet, along with interdigital erythema of the toes.  There was no other indication that his skin disability was any more prevalent than this small area (and far less than 20 percent of the whole body).  Moreover, treatment was limited to topical ointment, rather than immunosuppressive therapy.  

At a VA examination in April 2009, the examiner noted that the Veteran's skin disease was not exposed to the sun and, in fact, appears to be limited to itching and shedding between the toes.  He has been using topical antifungal cream for many years, but has not used any sort of radiation therapy to treat the condition.  

Finally, at his most recent VA examination in April 2011, the examiner noted that the disease does not affect the face, hands, neck and head, but is confined to the toes and sides of his feet.  As such, the disorder clearly covers much less than 20 percent of the Veteran's whole body or exposed area.  Moreover, the treatment for this disorder has been limited to topical hydrophor ointment, and a topical shampoo.  As before, there is no indication that he has ever used immunosuppressive drugs to treat this disease.

Therefore, as dermatitis covering 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or the need for systemic therapy such as corticosteroids or other immunosuppressive drugs have not been shown, an increased rating has is not warranted based on dermatitis.  Moreover, there has been no indication of scarring or disfigurement to the head or face.  Thus, a rating in excess of 10 percent is not for application.  

Scars

The Veteran currently has noncompensable ratings for scars on his right hand and left finger under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  The Board notes at the outset that this section was amended effective October 23, 2008.  Therefore, while the scar on the Veteran's left finger was originally rated under the prior criteria, both scars are now rated under the amended criteria, since the Veteran's claim was not submitted until March 2009.  See 73 Fed. Reg. 54,710 (Sept. 23, 2008).

In order to warrant a compensable rating for a scar to the finger or hand, the evidence must show that the scar is:
* Deep and nonlinear and an area or areas of at least 6 sq. in. (39 sq. cm) but less than 12 sq. in. (77 sq. cm) (10 percent under Diagnostic Code 7801); 
* Superficial and nonlinear, and of an area of 144 sq. in. (929 sq. cm) or greater (10 percent under Diagnostic Code 7802); 
* One or two in number that are unstable or painful (10 percent under Diagnostic Code 7804).
See 38 C.F.R. § 4.118.

A scar is "superficial" when it is not associated with underlying soft tissue damage.  Under Note (1) of Diagnostic Code 7804, a scar is considered "unstable" if there is frequent loss of covering of skin over the scar.  If a scar is both unstable and painful, an additional 10 percent will be added to the assigned rating.  Moreover, a scar with a compensable rating based on pain and instability may also warrant a separate rating based on size.  See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3).  

As an initial matter, there is no basis for a compensable rating based on size of the scar, whether or not the scars are deep or superficial.  While the precise size of the scars is unclear, the locations of the scars allow the board to presume that they, even when combined, are much smaller than 39 sq. cm.  For example, at his April 2011 VA examination, the Veteran stated that the scar on the palm of his right hand was due to a cut he experienced while working on equipment.  He also stated that the scar on his finger was on the tip of the finger, which he "almost cut the tip off."  Since it is obvious that these scars are relatively small, compensable rating is not warranted on this basis.  

However, the Board determines that a 10 percent rating is warranted for pain in both scars.  Specifically, at his VA examination in April 2009, he mentioned that the scar on his left little finger was sore when the weather changes.  At his most recent VA examination in April 2011, he stated that the scar on his little finger was not painful, but that it goes numb when exposed to cold temperatures.  He also stated that the scar to the palm of his hand was sometimes painful.  

When affording the benefit of every reasonable doubt to the Veteran, the Board finds that it reasonable to conclude that the scars to his little finger and right hand are painful, albeit intermittently.  Therefore, a 10 percent rating based on pain is warranted under Diagnostic Code 7804.  

The Board has also considered whether a rating in excess of 10 percent is warranted for the Veteran's scars based on pain.  However, a 20 percent rating is warranted under this diagnostic code only if there are three or four scars that are unstable or painful.  Here, he is service-connected only for two scars.  Therefore, there is no basis for an increased rating based on pain.  

Finally, there is also no basis for the assignment of an additional 10 percent under Diagnostic Code 7804 for scars that are both painful and unstable.  In this case, the scars on the Veteran's left little finger and right hand were both observed to be stable.  Most recently, at his April 2011 VA examination, there was no evidence of skin breakdown in either scar.  Therefore, in view of the presence of pain in the scars on the Veteran's left little finger and right hand, the Board determines that a 10 percent rating is warranted.  However, there is no basis for a rating in excess of this rating.  

Extraschedular Considerations

Next, the Board will consider whether referral for an extraschedular evaluation is warranted for any service-connected condition.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The CAVC has clarified the analytical steps necessary to determine whether referral for such consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.

If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.

In this case, the evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria, as discussed above.  

The Diagnostic Codes in this case allow for higher ratings, for additional or worsened symptoms which are simply not present at this time.  The specific criteria (and ancillary implementing regulations) include consideration of the signs and symptoms reported by the Veteran, such as limited and painful movement, weakness, frequency of symptoms, or use of medications.

Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

New and Material Evidence

Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened....").  While the previously denied claim of service connection for hearing loss was reopened in the May 2009 rating decision on appeal and decided on the merits, the Board must still consider the threshold jurisdictional issue.

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).  

New evidence means existing evidence not previously submitted to agency decision makers.  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(a).  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).  

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

Here, the Veteran is seeking entitlement to service connection for allergic rhinitis, calluses on the feet, scars to the thighs and chest, and for bilateral hearing loss.  These claims were previously denied by the RO in January 2003.  His claims for rhinitis, calluses on the feet and scars on the thigh and chest were denied on the basis that they were not shown in service.  His claim of bilateral hearing loss was denied on the basis that hearing loss for VA purposes was not currently shown.  See 38 C.F.R. § 3.385.  He did not appeal that decision, nor did he submit any new and material evidence within a year of the January 2003 rating decision.  38 C.F.R. § 3.156(b); see Buie v. Shinseki, 24 Vet. App. 242 (2011).  This represents the last final denial of the claims related to rhinitis, calluses, scars to the thighs and chest, and hearing loss.  

In July 2008, the Veteran filed a new claim seeking entitlement to service connection for, as is relevant here, bilateral hearing loss.  This claim was denied in December 2008 on the basis that no new and material evidence has been presented.  The denial did not become final, however, as within a year of that decision the Veteran submitted new and material evidence under 38 C.F.R. § 3.156(b), requiring reconsideration of the denial.  He also submitted March 2009 correspondence manifesting an intent to appeal the decision; such disagreement was premature in light of the regulatory requirement for reconsideration.

Since the time the January 2003 decision became final, updated VA treatment records, outpatient treatment records from Navy medical facilities from 2004 to 2012, and several VA examination reports have been associated with the claims file.

The examinations are new in the sense that they did not exist at the time of the January 2003 denials, but as they address solely disabilities other than those previously denied, they are not material.

Regarding his rhinitis claim, the Veteran has been treated for this disorder on a few occasions since the January 2003 rating decision.  For example, in July 2004, he stated that his rhinitis was well controlled when using allergic medication such as Allegra.  In February 2005, he complained of congestion, runny nose and a headache, although this appeared more attributable to bronchitis rather than an allergic reaction.  In February 2008, the examining physician noted "watery nasal discharge" from both nostrils.  Treatment notes from May 2009, as well as February and April 2012, similarly indicate that his rhinitis is well controlled.

All of these treatment notes are "new" in that they had not been reviewed prior to the last final denial of the claim.  However, none of them are "material," as none of them even suggest that there is a relationship between his current complaints and his active duty service.  Etiology is not discussed, only symptomatic treatment. Therefore, reopening this claim is not warranted based on the evidence submitted since the January 2003 decision. 

Regarding the Veteran's calluses, very few of the records submitted since the January 2003 decision indicate any treatment for this disorder.  Specifically, in January 2009, thick calluses were observed on the great toe and plantar area of both feet.  In February 2009, the he was seen for complaints of chronic and painful calluses to the feet, which prevented him from wearing enclosed shoes.  The calluses were debrided, and he was provided with inserts in order to prevent callus formation.  In addition to the treatment notes, the Veteran submitted color photographs, showing the nature and location of these calluses. 

This evidence is "new," in that none of it was reviewed prior to the last final denial of the claim in January 2003.  However, none of it is "material" as it does not address whether these calluses were noted during active duty.  While the Board recognizes that the Veteran stated in February 2009 that he had experienced calluses since 1988, this statement does not, by itself, warrant reopening the claim.  This assertion is effectively the same statement he made when his claim was originally denied and, accordingly, it is not "new" for purposes of 38 C.F.R. § 3.156.  See also Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence).  As such, this evidence is not sufficient to reopen the claim.

Regarding the Veteran's claim related to scars on the thighs and chest, the evidence does not indicate that any of the evidence submitted since the last final denial in January 2003 discusses these scars.  None of the outpatient treatment notes observed these scars.  To the contrary, when the Veteran underwent a VA examination in April 2011, an examination of the skin observed a linear scar on the right shoulder, but did not discuss scars on the thighs and chest.  Therefore, while the claims file includes a number of treatment records since the most recent denial of this claim in January 2003, none of it is new or material to the issue of entitlement to service connection for scars to the chest or thighs.  Accordingly, reopening this claim is not warranted.  

With respect to the Veteran's statements, the Board finds that the assertions that he was his calluses, rhinitis and scars since active duty service are duplicative of the statements already included in the claims file and considered in the prior final decisions.  Although these statements include pictures of the Veteran's calluses, they do not indicate that they are related to active duty.  The remaining statements are not new, but instead are merely recitations of the statements the Veteran previously made.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).  The Veteran's statements are thereby not new and material evidence.

As for the Veteran's claim seeking service connection for bilateral hearing loss, the Board determines that this claim should be reopened.  As mentioned above, this claim was denied on the basis that bilateral hearing loss was not currently shown.  

Since the last final denial, the Veteran underwent a January 2009 and February 2009 VA audiological evaluations at the Navy hospital and VA; these reflect the Veteran's competent and presumed credible reports of hearing difficulty, and also conclude hearing impairment is present to some degree.  The Navy diagnosed hearing loss, while VA referred to borderline results..  Not only is this evidence "new" in that it was not previously considered prior to the last final denial of the claim, but it is also "material" as it has probative value toward an unestablished fact necessary to establish that it is a disorder that should be service-connected.  

The Board also points out the fact that, in a July 2011 rating decision, the Veteran was granted service connection for tinnitus.  Although this is a separate disorder, recognition is given to the fact that tinnitus and sensorineural hearing loss may sometimes be related.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

Therefore, the Board concludes that new and material evidence has not been submitted to reopen the claims of entitlement to service connection for allergic rhinitis, calluses on the feet and scars to the thighs and chest, and there is no basis to reopen these claims.  

However, evidence that is new and material has been submitted in order to reopen a claim of entitlement to service connection for bilateral hearing loss, and this claim is reopened.  Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received.  This matter must now be addressed on a de novo basis.  For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim.

Service Connection

The Veteran has submitted a claim seeking service connection for scars to the left index finger, right middle finger, right ear, chin and forehead.  

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

With regard to the Veteran's scars, the service treatment records do not indicate treatment for any injuries that would have led to scars to the left index finger, right middle finger, right ear, right shoulder, chin or forehead.  Of particular note, a physical examination in August 1999 listed scars to the palm of the right hand and to the left finger (both of which are already service-connected) and a scar to the left wrist.  While earring holes were observed in the left ear, there was no noted scar in the right ear.  The enlistment physical examination in August 1987 noted a pre-service injury where he cut his finger in 1980.  However, there is no indication that a scar was observed.  Significantly, none of these scars were mentioned or observed at his separation physical examination in February 2001, other than the ones observed in August 1999.  Therefore, scars to the left index finger, right middle finger, right ear, right shoulder, chin and forehead were not shown in service. 

Next, the post-service evidence does not mention these scars until the Veteran submitted a claim for benefits in March 2009.  In fact, the clinical post-evidence never makes mention of these scars, and the Board relies on the Veteran's own statements to accept that they exist at all.  In any event, his claim for these scars was submitted approximately eight years after he left active duty.  

In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting continuity of symptoms.  The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements.  McClain v. Nicholson, 21 Vet. App. 319, 325 (2007).  In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record.  Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

The Veteran is competent to identify scars despite his status as a lay person, as these are skin marks that may be easily identifiable and does not necessarily require a determination that is "medical in nature."  See Jandreau, 492 F.3d at 1377, n.4.  However, even though the Veteran may be competent to testify about his scars, the Board finds his statements that they have existed since active duty to be not credible.

Specifically, the evidence of record indicates that the Veteran was granted VA benefits for a number of disorders in a January 2003 rating decision.  However, there was no mention of scars left index finger, right middle finger, right ear, right shoulder, chin or forehead.  The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to many other disorders, including scars to the right hand and left little finger, but made no reference to the other scars he claims now weighs heavily against his credibility.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference).  Had the Veteran had these scars at that time, as he now claims, there seems to be no reason why the Veteran would not have identified them at that time.

The Board also cannot ignore the significance of the fact that the Veteran did not file his claim for service connection for this issue for approximately eight years after he left active duty.  Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim).

Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements.  

Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed scars to active duty, despite his contentions to the contrary.  Notably, none of the clinical evidence of record indicates that there is any relationship between these scars and active duty service.  Moreover, there are no opinions in the record that even suggest such a relationship.

The Veteran is competent, despite his status as a lay person, but he has not truly stated with any specificity how he got these scars, if he ever received treatment for them, or how they are related to active duty.  In short, while there is sufficient evidence to indicate that he has these scars, there is scant evidence to indicate how they may be related to active duty.  Therefore, service connection for scars to the left index finger, right middle finger, right ear, right shoulder, chin and forehead is not warranted.  


ORDER

A rating in excess of 20 percent for a thoracolumbar spine disability is denied.

A rating in excess of 10 percent for right shoulder impingement is denied.

A rating in excess of 10 percent for left shoulder impingement is denied.

A rating in excess of 10 percent for patellofemoral syndrome in the right knee is denied.  

A rating in excess of 10 percent for patellofemoral syndrome in the left knee is denied.

A rating in excess of 10 percent for residuals of a fracture to the right hand is denied

A rating in excess of 10 percent for GERD is denied.

A rating in excess of 10 percent for tinea pedis is denied.  

A 10 percent rating, but no more, for scars to the little finger of the left hand and to the palm of the right hand is granted, subject to the laws and regulations governing the payment of monetary benefits.

New and material evidence having not been submitted, the application to reopen a claim for entitlement to service connection for scars to the thighs and chest is denied.

New and material evidence having not been submitted, the application to reopen a claim for entitlement to service connection for calluses to the feet is denied.

New and material evidence having not been submitted, the application to reopen a claim for entitlement to service connection for allergic rhinitis is denied.

New and material evidence having been submitted, the application to reopen a claim for entitlement to service connection for bilateral hearing loss is granted, and the claim is reopened.

Service connection for scars to the left index finger, right middle finger, right ear, right shoulder, chin and forehead is denied.


REMAND

With regard to claims of service connection for a respiratory disorder and bilateral hearing loss, as well as entitlement to increased evaluation for a cervical spine disability, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Hearing Loss

VA and Navy consultations from early 2009 indicate the presence of a hearing loss disability; however, the specific audiometric findings associated with those consultations are not of record.  The most current VA examination shows no qualifying hearing loss disability.  As this may in fact be contradicted by the absent findings, remand to obtain the potentially favorable and definitely relevant evidence is required.  

Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents.  Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  The February 2009 results must be obtained and considered.

Respiratory Condition

Service treatment records indicate that the Veteran was treated while on active for respiratory complaints on a number of occasions.  Of particular note, in June 1997, he complained that he continued to experience trouble breathing when trying to sleep unless he lay on his stomach.  An October 1999 evaluation actually raised concerns that he was positive for tuberculosis, although there was no follow-up information relating to that test.  He was also treated for upper respiratory infections in November 2000.

The fact that the Veteran was at risk of asbestos exposure is well documented in the service treatment records.  He underwent an asbestos medical surveillance program examination in June 2000, where he had been diagnosed with chronic bronchitis in the past.  He also repeatedly stated that he was environments where asbestos exposure was likely.  Given the nature and location of his service, it is as least as likely as not that he was exposed to airborne asbestos.  

The post-service evidence indicates that respiratory symptoms were also present after the Veteran left active duty.  Specifically, in October 2007, he was again treated for an acute respiratory infection and, in December 2008, he was diagnosed with asthmatic bronchitis.  While physical symptoms such as wheezing or rhonchi were never observed.  

Given the Veteran's symptoms while on active duty service and after, and his likely airborne asbestos exposure, the Board determines that a VA examination is necessary to clarify this issue before adjudication of the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).


Cervical Spine

The Veteran is service connected for degenerative disc disease of the cervical spine, rated 10 percent disabling.  The Veteran was involved in a motor vehicle accident during service, and injured his neck.  Symptoms documented at a July 2002 VA examination were related to such.

After service, prior to filing the claim for increased evaluation at issue here, the Veteran was involved in another accident in June 2008.  He sustained a fracture of cervical vertebrae, and required corrective surgery, to include implantation of hardware from C7-C11.

It is unclear from the current record to what extent currently measured cervical spine impairment is related to the service connected disc disease, and what part may be due to the postservice injury and artifact placement.  Neither VA examiner addressed this.  The Board may not presume the pre-existing disc disease has remained stable since 2003, or that it has been subsumed, and not aggravated by, the intercurrent injury.  An adjudicator may not substitute his or her own opinion for medical judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Accordingly, remand for examination is required.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request a properly executed, VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for NBHC Little Creek/Tricare, for the period on April 2012 to the present, and for audiometric testing from January to March 2009.

Upon receipt of such, VA must take appropriate action to contact the provider and request complete updated treatment records.  The Veteran should be informed that in the alternative he may obtain and submit the records himself.

2.  Associate with the claims file complete VA treatment records from the medical center in Hampton, Virginia, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of March 2011 to the present.  Additionally, a complete copy of the audiometric test results from February 2009 must be requested.  

If any record is not available, such must be certified in writing and the Veteran properly notified.

3.  Schedule the Veteran for a VA respiratory examination.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 

The examiner must identify all current chronic respiratory diseases.  Based on a thorough review of the evidence of record, the examiner must provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any respiratory disorder is attributable to active duty, to include conceded airborne asbestos exposure, or was otherwise aggravated by active duty. 

The requested opinion must be accompanied by a thorough reasons and basis for the opinion rendered. If the examiner is unable to provide such an opinion without resorting to speculation or for any other reason, an adequate explanation should be provided as to why such an opinion cannot be provided.  Such explanation may include, but are not limited to, limited experience in the specific medical field or the need for additional tests.

4.  Schedule the Veteran for a VA spine examination.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 

The examiner must fully describe the current status of the Veteran's cervical spine disability.   An opinion is required as to whether manifestations of the service connected disc disease and the June 2008 postservice accident may be distinguished, and if possible, such must be allocated.

The examiner should also opine as to whether the service connected disability aggravated the postservice injury, or was aggravated thereby.

5.  After any additional notification and/or development that the RO deems necessary is undertaken, readjudicate the Veteran's claims.  If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs