Citation Nr: 1301762	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  10-30 581	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for a claimed ingrown toenail.

2. Whether new and material evidence has been received sufficient to reopen the claim of service connection for irritable bowel syndrome, previously adjudicated as diarrhea. 

3. Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for an innocently acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 

4. Entitlement to an increased rating for the service-connected degenerative joint disease of the lumbar spine, currently rated 10 percent disabling prior to July 19, 2010, and 20 percent disabling beginning on July 19, 2010.

5. Entitlement to an effective date earlier than July 19, 2010 for the award of a 20 percent rating for the service-connected degenerative joint disease of the lumbar spine.

6. Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for an innocently acquired psychiatric disorder, to include bipolar disorder.

7. Entitlement to service connection for tremors, to include as secondary to medication used to treat a service-connected disability.

8. Entitlement to a compensable rating for the service-connected concretions of both eyes.  


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran had active service from January 1986 to June 1991. 

This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of December 2009 and September 2010 rating decisions by the RO. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The reopened claim of service connection for an innocently acquired psychiatric disorder, to include PTSD, along with the issues of service connection for bipolar disorder and tremors and an increased rating for the service-connected concretions of both eyes are being remanded to the RO.


FINDINGS OF FACT

1. The Veteran currently is not shown to have an ingrown toenail disability. 

2. In an unappealed August 1997 decision, the RO denied the Veteran's claim of service connection for diarrhea.   

3. The evidence received since the RO's August 1997 rating decision does not relate to any unsubstantiated fact in the previously denied claim; and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim of service connection for irritable bowel syndrome. 

4. In an unappealed March 2001 decision, the Board denied the Veteran's claim of service connection for PTSD. 

5. Some of the evidence received since March 2001, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an innocently acquired psychiatric disorder. 

6. For the period of the appeal, the service-connected low back disability is not shown to have been manifested by complaints of pain and limitation of motion with forward flexion limited to less than 50 degrees. 

7. The service-connected degenerative joint disease of the lumbar spine is shown to be associated with left obturator and lateral cutaneous nerve impairment which is manifested by numbness but is no worse than a mild impairment.    

8. The earliest date that it is factually ascertainable that the service-connected degenerative joint disease of the lumbar spine increased in severity (that entitlement to the increased disability rating of 20 percent arose) is on July 19, 2009.


CONCLUSIONS OF LAW

1. The Veteran does not have an ingrown toenail disability due to disease or injury that was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

2. The August 1997 rating decision, which denied service connection for diarrhea, is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

3. New and material evidence has not been received to reopen the claim for service connection for irritable bowel syndrome. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012).

4. The March 2001 Board decision, which denied service connection for PTSD, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012).

5.  Since the March 2001 Board decision, new and material evidence has been received to reopen the claim of service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).	

6.  The criteria for the assignment of a rating in excess of 20 percent for the service-connected degenerative joint disease of the lumbar spine have not been met during the appeal period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Codes 5210, 5242 (2012); See Hart v. Mansfield, 21 Vet. App. 505 (2007).

7. The criteria for the assignment of a separate compensable rating for the service-connected low back disability on the basis of left lower extremity obturator and lateral cutaneous nerve dysfunction have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 38 C.F.R. § 4.71a including Diagnostic Codes 5210, 4242; 38 C.F.R. § 4.124a including Diagnostic Codes 8528, 8529 (2012).

8. The criteria for the assignment of an effective date earlier of July 19, 2009 for the 20 percent disability rating for the service-connected degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400(o), 4.120 including Diagnostic Code 5242 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  

Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  

As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  

Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of a claim to reopen, as is the case here, VA must look at the bases for the denial in the prior decision(s) and respond with a VCAA notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.

In the present case, VA issued VCAA notice letters to the Veteran in October 2009 and August 2010.  These letters informed the Veteran of what evidence was required to substantiate his service connection, increased rating, and new and materials claims. The letters also informed the Veteran of his and VA's respective duties for obtaining evidence. 

The October 2009 and August 2010 letters also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess.  

The Board further notes that the October 2009 letter provided the Veteran with specific notice as to why his claims were previously denied and what evidence would be material to his claims. 

To wit, the RO informed the Veteran that his claim of service connection for irritable bowel syndrome was previously denied because "this disability neither occurred in nor was caused or aggravated by service no was present to a compensable degree within one year following separation from active service." 

As such, the Veteran was advised of the bases for the previous denial and what evidence would be necessary to reopen the claim. See Kent supra.

With respect to the Veteran's new and material claim for an innocently acquired psychiatric disorder, the Board need not address the adequacy of the notification letters sent to the Veteran, or whether VA has met its duty to assist in the development of his claim.  

This is so because, as will be discussed in further detail, the Board finds that the evidence received since the March 2001 denial is new and material and the Board is granting the Veteran's claim to reopen. 

As this portion of the Veteran's appeal is being allowed, there can be no prejudice to the Veteran.  Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran).  

The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VA notice letters. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims.  Therefore, there is no duty to provide additional notice in this case.

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA medical records, private treatment records, VA examination reports, statements from the Veteran and his family and audio recordings made by the Veteran.  

The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

As the Board will discuss, the Veteran was provided with VA skin and spine examinations in August 2010.  The reports of these examinations reflect that the same VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board therefore concludes that the examinations are adequate for adjudication purposes.  See 38 C.F.R. § 4.2 (2012).  

Once a claim is reopened, VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). 

The Board recognizes that the Veteran has not been afforded a VA examination in connection with his irritable bowel syndrome claim.  However, an examination is not necessary if no new and material evidence has been received.  38 C.F.R. § 3.159(c)(4)(iii).  Such is the case here. 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.  

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined to exercise his option of a personal hearing.  


II. The Ingrown Toenail Claim

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  

When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence, unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012).

Service connection presupposes a current diagnosis of the claimed disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the "current disability" requirement is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."  See McClain v. Nicholson, 21 Vet. App. 319 (2007).

The service treatment records document that the Veteran was treated for an ingrown toenail of the left great toe on several occasions.  See, e.g., a March 1988 treatment record.  

During the August 2010 VA examination, the Veteran reported having continued to experience ingrown toenails of the left great toe. Specifically, he stated that " he [had not] had to see a doctor for the ingrown nail in many years" but that his nail [would] become red with some drainage but "this [would] last less than a day and [would] resolve[] on its own after his wife trims the nail."

After reviewing the Veteran's claims file and conducting an examination, the August 2010 VA examiner noted that there were "no signs of any acute or chronic ingrown toenails of either the right or left foot." The Veteran's toenails were "normal on physical examination." 

The Veteran, as a lay person, is competent to note the existence of an ingrown toenail. See Layno v. Brown, 6 Vet.App. 465, 467-69 (1994) (noting that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses).

Competency of evidence differs, however, from the weight and credibility assigned to evidence. 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 that addresses 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, supra; see also Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) (noting that 'although interest may affect the credibility of testimony, it does not affect competency to testify'). 

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet.App. 498 (1995).

While the Veteran's report of experiencing periodic ingrown toenails is competent, the Board nonetheless finds his assertions to be not credible for the purpose of establishing a continuity of symptomatology referable to an ingrown toenail since service.   

As noted, the August 2010 VA examiner stated that there were no signs or symptoms of an ingrown toenail. 

Moreover, while the Veteran's feet have been examined on a number of occasions following his separation from service, he did not voice complaints of ongoing ingrown toenail manifestations. 

Specifically, during a December 1993 VA examination, the Veteran complained of  "popping and clicking in his feet," but did not discuss an ingrown toenail of identify disability related thereto.  

During a September 1996 VA general examination, the Veteran reported that he fractured his foot during service, but did not complain of ingrown toenails. 

Finally, during a September 1997 VA foot examination, the Veteran did not complain of recurring ingrown toenails, and the examiner did not identify related disability. 

Finally, the Veteran's feet were reported to be normal at the time of the April 1991 separation examination.  

The Board notes that there are no objective findings of an ingrown toenail contained in the claims folder.  There are also no subjective complaints of this disability until the Veteran filed his claim in July 2010, nearly two decades after he separated from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised); see also Mense v. Derwinski, 1 Vet.App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition).

The Board also finds it significant that, while the Veteran has filed claims for VA benefits in November 1993, August 1995, December 1995, June 1997, November 1997, September 2009 and October 2009, he did not mention recurring ingrown toenails. If he had experienced a related disability since separation, this record does not provide a basis for linking the onset to manifestations exhibited in service.

The Veteran has been accorded ample opportunity to present evidence in support of his claim, i.e., a competent evidence of a current disability. He has failed to do so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits).  

The Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991).  

In the absence of a competent diagnosis of an ingrown toenail at any time during the appeal period, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) & Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection cannot be granted if the claimed disability does not exist). See also McClain v. Nicholson, 21 Vet.App. 319 (2007).  

Accordingly, the first Shedden element has not been met, and the Veteran's claim fails on this basis alone.  

In the absence of competent evidence of an ingrown toenail, it follows that a competent and credible nexus between the in-service injury and the claimed current disability is also lacking. Such is the case here. The evidence of record does not contain a competent and credible statement attempting to link an ingrown toenail disability to the Veteran's active duty service.

In conclusion, for these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an ingrown toenail. The benefit sought on appeal is accordingly denied.  


III. The Irritable Bowel Syndrome Claim

In general, VA decisions that are not timely appealed are final.  See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2012).  Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

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) (2012).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Here, the Veteran's claim of service connection for diarrhea was initially denied by the RO in an August 1997 rating decision.  The Veteran was notified of this decision and his appeal rights in a September 1997 notice letter.  

The Veteran indicated his disagreement with the August 1997 rating decision and a Statement of the Case was issued in February 1998.  The Veteran did not, however, perfect an appeal of this decision.  

Specifically, while the Veteran submitted a Substantive Appeal in June 1998, he did not list diarrhea or a gastrointestinal disability among the issues being appealed.  See 38 C.F.R. § 20.202 (2012) (if a SOC lists several issues, the substantive appeal must either indicate that the appeal is being perfected as to all issues or must specifically identify the issues being appealed).

When the Veteran's claim of service connection was denied by the RO in August 1997, the record contained his service treatment records, VA treatment records, private medical records, multiple VA examination reports (including a July 1997 VA intestinal examination), and multiple lay statements from the Veteran, his wife, his mother and his sister. 

Based on this evidence, the RO decision denied the Veteran's claim of service connection for diarrhea.  The basis for this decision was that there was no evidence showing that the Veteran had a gastrointestinal disability that was caused or aggravated by service or was present to a compensable degree within one year following separation from service. 

The August 1997 decision is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1100 (2012).  As explained, the Veteran's claim of service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 

Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted (i.e., since August 1997) raises a reasonable possibility of substantiating the Veteran's claim.

As noted, the Veteran's claim of service connection for a gastrointestinal disability was denied in August 1997 because there was no evidence of a relationship between the Veteran's current disability and his active service. 

The evidence associated with the Veteran's claims folder since the August 1997 decision includes VA treatment records, private medical records, multiple VA examination reports, the statements from the Veteran, and a transcript of a July 1998 hearing before a Hearing Officer. 

Upon review, the evidence associated with the Veteran's claims file following the August 1997 rating decision does not relate to an unestablished fact necessary to substantiate the claim. In fact, the recently received evidence does not discuss any complaints or treatment for irritable bowel syndrome or diarrhea.  

In his September 2009 claim, the Veteran simply stated that he "would like to amend his original claim to include . . . irritable bowel syndrome.  He is currently being treated at the VAMC in Omaha." As suggested, however, the Veteran's VA outpatient treatment records do not mention diarrhea or irritable bowel syndrome. 

There has been no evidence associated with the claims file which suggests that the Veteran's irritable bowel syndrome is related to his active service.  Therefore, the additional evidence received since the August 1997 rating decision does not relate to an unestablished fact necessary to substantiate the claim.  

The newly received evidence does not raise a reasonable possibility of substantiating the claim.  Thus, this evidence is not material.  

Accordingly, the Board finds that the claim for service connection for irritable bowel syndrome is not reopened.


IV. The Innocently Acquired Psychiatric Disorder Claim 

Here, the Veteran's claim of service connection for PTSD was initially denied by the RO in an August 1997 rating decision.  The Veteran perfected an appeal of this decision and his claim was denied by the Board in March 2001.  

When the Veteran's claim of service connection was denied by the Board in March 2001, the record contained his service treatment records, VA treatment records, private medical records, multiple VA examination reports (including a July 1997 VA mental disorders examination), and multiple lay statements from the Veteran, his wife, his mother, and his sister. 

Based on this evidence, the Board denied the Veteran's claim on the basis that the "competent medical evidence of record [did] not demonstrate a clear diagnosis of PTSD." See the March 2001 decision, page 3. 

The Board's March 2001 decision is final as the Veteran did not file an appeal.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1100 (2012).  As explained, the Veteran's claim of service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 

Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted (i.e., since March 2001) raises a reasonable possibility of substantiating the Veteran's claim.

As noted, the Veteran's claim of service connection for PTSD was denied in March 2001 based on the lack of a current disability. 

In Clemons v. Shinseki, 23 Vet.App. 1 (2009), the Court held that a claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of a broader scope.

The evidence associated with the Veteran's claims folder since the August 1997 decision includes VA treatment records, private medical records, multiple VA examination reports, statements from the Veteran, and a July 1998 hearing transcript before a Hearing Officer. These records include diagnoses of anxiety disorder and "specific phobia, provisional." See VA treatment records dated September 2007 and February 2008.

The Veteran's claim was previously denied because there was no evidence of a current disability.  As noted, there is now evidence that suggests the Veteran has an anxiety disorder and a specific phobia.  Obviously, this evidence is new in that it was not previously of record.  

Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim.  For these reasons, the Board finds that the evidence received since March 2001 warrants a reopening of the Veteran's claim of service connection for an innocently acquired psychiatric disorder, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a).

The reopened claim of service connection for an innocently acquired psychiatric disorder will be addressed below. 


V. The Lumbar Spine Disability Claim 

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.  

The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  

Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  
In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7913.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The Veteran seeks an increased rating for his service-connected degenerative joint disease of the lumbar spine. A 10 percent disability rating is currently assigned prior to July 19, 2010 and a 20 percent rating is in effect on and after July 19, 2010. 

The degenerative joint disease of the lumbar spine is currently rated under Diagnostic Codes 5010-5242. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen).

Diagnostic Code 5010 specifies that arthritis due to trauma substantiated by X-ray findings will be rated as degenerative arthritis (Diagnostic Code 5003). 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012).

Diagnostic Code 5003 specifies that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. In the absence of limitation of motion, a 10 percent rating may be assigned for arthritis with X-ray evidence of involvement of a major joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (2012). (For the purposes of rating disability from arthritis, VA regulations consider the lumbar vertebrae a group of minor joints, ratable on parity with major joints. See 38 C.F.R. § 4.45(f) (2012).)

Under the General Rating Formula for Diseases and Injuries of the Spine, (38 C.F.R. § 4.71a) for Diagnostic Codes 5235 to 5243, unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following criteria apply: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease 100 percent rating - Unfavorable ankylosis of the entire spine;

50 percent rating - Unfavorable ankylosis of the entire thoracolumbar spine;

40 percent rating - Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine;

30 percent rating - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine;

20 percent rating - Forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the General Rating Formula for Diseases and Injuries of the Spine, as outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25.  

Note (1) to 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.' See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012).

The Board has considered whether another rating code is "more appropriate" than the one used by the RO.  Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  

However, the service-connected lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine.  The Board observes that all spine disabilities, except intervertebral disc syndrome, are rated using the same criteria.

The Veteran has been diagnosed with degenerative disc disease of the lumbar spine. See the August 2010 VA examination report. As such, the Board finds that Diagnostic Code 5242 (degenerative arthritis of the spine) is appropriate. 

The Board has also considered whether to rate the Veteran's lumbar spine disability under Diagnostic Code 5243, which provides different rating criteria for intervertebral disc syndrome.  

This diagnostic code, however, is not favorable to the Veteran because he has not been prescribed bed rest based due to incapacitating episodes.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is therefore not applicable.  


      A.  Associated Neurological Abnormalities 

As noted, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. 

During the August 2010 VA examination report, the Veteran complained of pain that radiated into his anterior left "quad" muscle.  A sensory examination revealed numbness in a 5 cm oval area on the anterior left thigh.  The examiner stated that this abnormality was located in the obturator and lateral cutaneous nerve.  

A detailed motor examination revealed that the Veteran maintained full muscle strength in his left lower extremity.  It was also noted that vibration, pain or pinprick, light touch, and position sense testing were all normal.  

Accordingly, the evidence shows that the Veteran has symptoms of radiculopathy into the left lower extremity associated with his service-connected lumbar spine disability.  

Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that the critical element in the assignment of separate ratings under Diagnostic Codes is that none of the symptomatology is duplicative or overlapping). 

Therefore, the Board finds that the medical evidence allows for a finding of mild neurological manifestations of the service-connected lumbar degenerative joint disease. 

As the medical evidence notes that the Veteran's obturator and lateral cutaneous nerve in his left leg is affected by his lumbar spine disability, the Board will apply the corresponding Diagnostic Codes to afford a separate neurological evaluation.  

In this capacity, the Board finds that a noncompensable rating is warranted under 38 C.F.R. § 4.124a, Diagnostic Codes 8528 or 8529 for "mild to moderate" symptoms.

The Board finds that the next-higher 10 percent evaluation under Diagnostic Code 8528 is not warranted.  

Upon review, the record does not indicate that the Veteran experiences impaired light touch, pinprick or positional sensory impairment.  His deep tendon reflexes and muscle tone were described as normal.  There is no evidence of atrophy.  There is also no evidence of foot drop or decreased knee flexion.  

As such, the record does not indicate that the Veteran experiences "severe or complete" paralysis of the obturator or cutaneous nerve as would be required for a compensable disability rating. 

Based on this record, the Board finds that the Veteran's neurological manifestations can best be described as mild, there is no indication that severe neurological manifestations exist. 


	B. Schedular Rating

As noted, the Veteran's lumbar spine disability is currently rated 10 percent disabling prior to July 19, 2010 and 20 percent disabling on and after July 19, 2010. For the following reasons, the Board finds that a higher than 20 percent disability is not warranted at any time during the period of the appeal. 

In order to assign a 40 percent disability rating, the evidence must limitation of forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

The Veteran underwent a VA examination in August 2010. A physical examination revealed normal posture and a normal gait with no spasms, atrophy, guarding, pain with motion, tenderness or weakness. The ranges of motion were recorded as: flexion to 50 degrees; extension to 18 degrees; lateral flexion to 30 degrees; and bilateral rotation to 30 degrees. There was objective evidence of pain following repetitive motion, however, there were no additional limitations after three repetitions of range of motion. 

The claims file does not contain any additional range of motion findings during the appeal period.  

The Veteran has also not exhibited ankylosis of the entire thoracolumbar spine.  Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because the Veteran is able to move his lower back, by definition, it is not immobile. Therefore, ankylosis is not shown.

With respect to the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, while the Veteran has reported that he experiences pain on range of motion, the August 2010 VA examiner stated that there was no additional limitations following repetitive use of the Veteran's spine. 

In short, there is no support in the record for a disability rating in excess of 20 percent beginning during the appeal period. Simply put, the competent and credible evidence of record does not indicate that the service-connected lumbar degenerative joint disease warrants an increased rating, and functional loss has not been credibly identified.  

The Board has considered whether an increased disability rating is warranted for the disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45 and 4.59 and the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The evidence of record, however, does not reflect impairment that warrants a higher rating. Indeed, as noted above, the repetitive motion testing did not result in any additional functional impairment. 

The record does not reveal any specific evidence that would allow for the assignment of additional disability under the DeLuca factors.  

In Hart v. Mansfield, supra, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.  See 38 U.S.C.A. § 5110 (West 2002).  

Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability ordinarily from the time period one year before the claim was filed until VA makes a final decision on the claim.

In this case, the Veteran is shown to have filed his increased rating claim on July 19, 2010.  The question to be answered by the Board, then, is whether any different rating should be assigned for any period during the rating period on appeal from July 19, 2009 to the present. 

The Board notes that the Veteran's disability appears to have remained stable throughout the appeal period. Specifically, the VA treatment records from January 2010 and February 2010 report symptoms identical to those reported during the August 2010 VA examination. 

As the record indicates that the service-connected back disability has remained consistent throughout the appeal period, the Board finds that the currently assigned 20 percent disability rating is warranted beginning on July 19, 2009. 

Accordingly, the Board concludes that a 20 percent rating, and no more, is warranted for the service-connected lumbar degenerative joint disease under the General Rating Formula for Diseases and Injuries of the Spine or based on the functional impairment of this disability. See DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. 


	C.  Extraschedular Considerations

Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). 

An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet.App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. 

First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 

Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 

Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected degenerative joint disease of the lumbar spine. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. 

In fact, as discussed, the symptomatology of the Veteran's disability (pain and a limited range of motion) is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. 

The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.


V. The Earlier Effective Date Claim

As noted, the Board has determined that a disability rating in excess of 20 percent is not warranted for the service-connected degenerative joint disease of the lumbar spine on or after July 19, 2010. However, the Veteran is also seeking an earlier effective date for the assignment of the 20 percent disability rating. 

The effective date of an award of increased disability compensation is the earliest date that it is factually ascertainable that an increase in disability has occurred, if a claim is received within one year thereof.  Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o)(1) (2012).  

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 

If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 

If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).

Any communication or action, indicating an intent to apply for VA benefits from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). 

The date of receipt of evidence from a private physician or a lay person will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows a reasonable possibility of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2012). 

Also, the date of VA outpatient or hospital examination, or the date of admission to a VA or uniformed services hospital, will be accepted as the date of receipt of a claim when the report of such treatment or examination relates to a disability for which increased compensation is sought. 38 C.F.R. § 3.157(b)(1) (2012).   

In an August 1997 rating decision, the Veteran was granted service connection for a low back disability. A 10 percent disability rating was assigned, effective on November 10, 1993. The Veteran was notified of this decision and his appeal rights but did not appeal this decision and it became final.

In November 1997, the Veteran filed a claim seeking an increased rating for his service-connected lumbar spine disability.  His claim was denied in a May 1998 rating decision. The Veteran was notified of this decision and of his appeal rights in a June 11, 1998 letter, but did not perfect a timely appeal of that denial.

In a letter received on July 19, 2010, the Veteran requested "VA increase" the disability rating assigned to his lumbar spine disability. 

In determining an appropriate effective date for an increased rating, the Board must first identify the date of filing of the increased rating claim. 

The Board then determines when it was "factually ascertainable" that an increase in disability occurred. Such date may be before or after the date the claim was filed, but may be no more than one year prior to the date of claim. See 38 C.F.R. § 3.400(o) (2012).

The applicable statutory and regulatory provisions require that VA look to all communications from a claimant which may be interpreted as applications or claims, formal and informal, for benefits. 

In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.1(p), 3.400(o)(2), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).

As noted, the Veteran did not perfect his appeal of the August 1997 or May 1998 rating decisions and they became final.  A review of the record reveals that there was no communication from the Veteran or a representative of the Veteran to VA which can be interpreted as a new claim for an increased rating for a spine disability after the May 1998 rating decision, and prior to the July 2010 claim for an increased rating. 

Accordingly, the Board concludes that the date of receipt of the Veteran's claim for an increased rating for his service-connected degenerative joint disease of the lumbar spine is July 19, 2010.

With respect to the matter of whether an increase in the service-connected degenerative joint disease of the lumbar spine was factually ascertainable, as noted, in light of the VA treatment records which document that the Veteran's disability has remained stable throughout the appeal period, the Board has assigned a 20 percent disability rating one year prior to the date of the Veteran's claim. 

Therefore, based on a review of the evidence of record, the Board concludes that the claim for an effective date for the assignment of a 20 percent rating for the service-connected lumbar spine disability is July 19, 2009. 

Hence, to this extent, an earlier effective date for the assignment of the 20 percent rating is warranted. 




ORDER

Service connection for an ingrown toenail is denied.

As new and material evidence has not been received to reopen the claim of service connection for irritable bowel syndrome , the appeal to his extent is denied.

As new and material evidence has been received to reopen the previously denied claim of service connection for an innocently acquired psychiatric disorder, to include PTSD, the appeal to this extent is allowed, subject to further action as discussed below.  

An increased rating  in excess of 20 percent for the service-connected degenerative joint disease of the lumbar spine is denied. 

A separate, compensable disability evaluation for the service-connected low back disability on the basis of impairment of the left obturator and lateral cutaneous nerve is denied.

An increased rating of 20 percent, but no higher, for the service-connected degenerative joint disease of the lumbar spine beginning on July 19, 2009 is granted, subject to the regulations controlling disbursement of VA monetary benefits.  



REMAND

For the following reasons, the Board finds that the remaining issues must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist.

A. An Innocently Acquired Psychiatric Disorder, to include PTSD and bipolar disorder 

In an August 1997 rating decision, the RO denied the Veteran's claim of service connection for insomnia, fatigue, irritability and a diminished sex drive as due to an undiagnosed illness.  

In the decision, the RO noted that these symptoms were the result of the Veteran's "known clinical diagnosis of bipolar disorder, which neither occurred in[,] nor was caused or aggravated by service[,] nor was present to a compensable degree within one year following separation from service."  

It was also noted that the Veteran's service treatment records were negative for any complaints or findings of a nervous condition, and that the Veteran reported being diagnosed with bipolar disorder in 1993 or 1994, several years after his separation from service.  

The Veteran expressed his disagreement with the August 1997 rating decision and a Statement of the Case was issued in February 1998.  In his Substantive Appeal, the Veteran stated that his symptoms of insomnia, irritability and a diminished sex drive were due to a mental disorder and that he "now suffer[s]" from PTSD and manic depressive bipolar disorder. 

The Veteran was afforded a hearing before a Hearing Officer in July 1998.  During the hearing, the Veteran discussed his bipolar disorder and reported that his insomnia and diminished sex drive were the result of medication he takes for psychiatric disabilities. See the hearing transcript, page 8.  

At the end of the hearing, the Hearing Officer observed that the August 1997 rating decision denied "service connection for bipolar disorder with complaints of insomnia, fatigue, irritability and diminished sex drive as due to an undiagnosed illness." It was clarified that based on the Veteran's testimony, he "actually had claimed service connection for bipolar disorder and had appealed the denial of service connection for a bipolar disorder." Id at 25.  

In an October 1998 Supplemental Statement of the Case, the RO recharacterized the Veteran's claim as service connection for bipolar disorder with symptoms of insomnia, fatigue, irritability and diminished sex drive. 

In a March 2001 decision, the Board denied the Veteran's claim of service connection for insomnia, irritability and diminished sex drive due to an undiagnosed illness.  In the decision, the Board noted that these symptoms were "related by medical evidence to known clinical diagnoses of bipolar disorder and depression which are not service-connected disabilities." The Board did not address whether service connection was warranted for bipolar disorder. 

As the Veteran has perfected an appeal of the RO's denial of service connection for bipolar disorder, and the March 2001 Board decision did not address whether service connection for bipolar disorder was warranted, the August 1997 rating decision is not final.  

Specifically, while the issue was originally service connection for insomnia, fatigue, irritability and diminished sex drive as due to an undiagnosed illness, the record reflects that the RO had consistently adjudicated the Veteran's claim as one for bipolar disorder.  The Board's March 2001 denial, however, limited the Veteran's claim to insomnia, fatigue, irritability and diminished sex drive. It did not discuss whether service connection was warranted for bipolar disorder.

The Veteran was afforded a VA examination in May 2010. After reviewing the Veteran's claims folder and conducting a clinical examination, the VA examiner stated that the Veteran's bipolar disorder preexisted his military service but was not permanently aggravated therein. 

Upon review, the Veteran's January 1986 enlistment examination did not reveal any psychiatric abnormalities.  The earliest diagnosis of a psychiatric disability comes from a May 1995 treatment record which diagnosed the Veteran with depression and anxiety.  

While the Veteran reported to the May 2010 VA examiner that he experienced abuse and trauma during his childhood, the Veteran's mother reported that he had a normal childhood in a November 1996 statement. 

A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Id.

To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 

The law further provides that, if a preexisting disorder is noted, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence 'that the increase in disability is due to the natural progress of the disease.' 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004).

Based on the evidence currently contained in the Veteran's claim file, there is insufficient evidence to rebut the statutory presumption of soundness. In particular, the Veteran's January 1986 enlistment examination did not reveal any psychiatric abnormalities, the Veteran's mother reported that he had a normal childhood, and the first evidence of a psychiatric disability comes from a May 1995 post-service treatment record. 

Based on this evidentiary posture, the issue of service connection for an innocently acquired psychiatric disorder contains medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. 

These questions concern the nature of the Veteran's psychiatric disorder and whether such a disorder had its clinical onset in service or is otherwise related to active duty.  

These questions must be answered by an appropriately qualified medical professional.  A medical examination is therefore necessary. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim].


B. Tremors 

In his July 2010 claim, the Veteran indicated that he had been experiencing tremors on a regular basis. He stated that he was seeking compensation under a direct service connection theory of entitlement, but was unsure whether his symptoms were a result of his medication.  

Upon review, however, the Veteran's claim has not been adjudicated or developed under a secondary service connection theory of entitlement.  

An August 2009 VA treatment record documented that the Veteran was experiencing tremors.  In addition, service-connected is currently in effect for degenerative joint disease of the lumbar spine, alopecia, joint pain due to an undiagnosed illness, tinnitus, fracture residuals of the right 4th metatarsal, a burn scar of the left arm, concretions of both eyes and bilateral hearing loss.  

Based on this evidentiary posture, the issue of service connection for tremors contains medical questions which cannot be answered by the Board.  See Colvin, supra. 

These questions concern the nature and etiology of the Veteran's tremor disability, to include whether this disability is caused or aggravated (permanently worsened beyond normal progression) by any of his service-connected disabilities or the medication prescribed therefore.  A medical examination is therefore necessary.  


C. Concretions of both eyes 

The Veteran is seeking a compensable rating for his service-connected concretions of both eyes.  The Board notes that a concretion is "a hard usually inorganic mass formed in a living body."  See Merriam-Webster's Collegiate Dictionary, 11th Ed, pg 258.

The Veteran's eye disability is currently rated under Diagnostic Codes 6099-6018.  Under Diagnostic Code 6018, a 10 percent rating is warranted for active chronic conjunctivitis (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.).  

Inactive conjunctivitis is to be rated on the basis of residuals, such as visual impairment and disfigurement (referencing Diagnostic Code 7800). See 38 C.F.R. § 4.79, Diagnostic Code 6018 (2012).

During the September 2010 VA examination, the VA examiner noted that the Veteran's conjunctivitis was not active.  It was also noted that the Veteran underwent left eye strabismus surgery and patching as a child that was not successful and had had very poor eyesight for all his life.  (The Veteran's January 1986 enlistment examination revealed that he had 20/200 vision in his left eye.)  The VA examiner stated that his left visual field was very irregular due to his poor visual acuity and visual field testing was "likely not reliable." 

Upon review, the record does not distinguish between the symptomatology attributable to the Veteran's concretions and his nonservice-connected, preexisting left eye strabismus.  

The Board is precluded from differentiating between symptomatology attributed to service-connected disability and non service-connected disability in the absence of medical evidence which does so.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  

For this reason, the case must be remanded for a medical opinion which differentiates between service-connected and non-service connected pathology and symptomatology, to the extent possible.

Accordingly, the remaining issues are REMANDED to the RO for the following action:

1. The RO must assure that all notice and development required by VCAA has been accomplished, to include providing the Veteran with a VCAA notice letter which informs him of what the evidence must show to establish that the claimed tremor disability was caused or aggravated by medication used to treat a service-connected disability. 

2. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for issues remaining on appeal since January 2011.  

After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider.

3. Once the above action has been completed, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of the claimed tremors.  The Veteran's claims folder, including a copy of this remand, must be made available to the examiner.  All diagnostic testing deemed to be necessary by the examiner should be accomplished.  

After examining the Veteran and reviewing the entire record, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any current disability manifested by tremors is due to an injury or other event of the Veteran's period of active service or was caused or aggravated (permanently worsened beyond normal progression) by a service-connected disability, to include medication prescribed therefore. 

4. Then, the RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed innocently acquired psychiatric disorder.  The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished.

After reviewing the entire record and examining the Veteran, the VA examiner should provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that an innocently acquired psychiatric had its clinical onset in service during his period of active duty.  

5. The RO should schedule the Veteran for an appropriate VA examination to determine the current severity of the service-connected bilateral eye concretions.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  Any testing deemed necessary should be performed.  

All pertinent pathology associated with this service-connected disability should be noted in the examination report.  In particular, the examiner should attempt to identify any residuals of the Veteran's bilateral eye concretions. 

Specifically, the examiner should distinguish, to the extent possible, any visual impairment or disfigurement which is attributable to the service-connected bilateral eye concretions from that due to other diagnosed eye disabilities, to include his preexisting defective vision.   

6. After completing all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran should be provided with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 

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

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



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals

Department of Veterans Affairs