Citation Nr: 1302006	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  09-23 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for dry eyes.

3.  Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with dysphoric mood (referred to hereinafter as "psychiatric disorder").

4.  Entitlement to a compensable evaluation for the period on appeal through July 5, 2009, and an evaluation in excess of 10 percent for the period on appeal beginning July 6, 2009, for service-connected right foot heel spur and Achilles enthesopathy with right ankle musculoligamentous strain (referred to hereinafter as "right foot and ankle disorder").


REPRESENTATION

Veteran represented by:	Nebraska Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and K.Z.


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel


INTRODUCTION

The Veteran served in the United States Army National Guard from February 1979 to October 2004.  This involved various periods of active duty for training and inactive duty for training, to include from May 1979 to August 1979.  The Veteran served on active duty in the United States Army from April 2003 to July 2004.  

This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  No new and material evidence was found to have been submitted therein to reopen the issues of entitlement to service connection for bilateral hearing loss and for tinnitus.  Service connection for dry eyes was denied. Service connection for a psychiatric disorder was granted, and an initial evaluation of 30 percent effective June 12, 2008, was established.  The previously established noncompensable evaluation for right foot heel spur and Achilles enthesopathy was continued.  The Veteran appealed each of these determinations.

An October 2009 rating decision granted service connection for right ankle musculoligamentous strain.  Evaluation of this condition was included with evaluation of right foot heel spur and Achilles enthesopathy.  An evaluation of 10 percent was assigned effective July 6, 2009.  In other words, the higher evaluation benefit sought by the Veteran partially was granted.  The increased evaluation does not cover the entire period on appeal, however.  It further does not represent the maximum evaluation available for the period it does cover.  The issue of a higher evaluation for a right foot and ankle disorder during the entire period on appeal therefore remains.  AB v. Brown, 6 Vet. App. 35 (1993).  

In September 2010, the Veteran and his wife K.Z. testified at a Video Conference hearing before the undersigned Veterans Law Judge.  The transcript of this hearing has been associated with the claims file.

The Board first addressed this matter in May 2011.  New and material evidence was found to have been submitted concerning bilateral hearing loss and tinnitus, and thus the issues of entitlement to service connection for each was reopened.  Service connection for tinnitus further was granted (therefore, it no longer remains on appeal).  The issue of entitlement to service connection for bilateral hearing loss was remanded for additional development along with the issues of entitlement to a higher initial evaluation for a psychiatric disorder and to a higher evaluation for a right foot and ankle disorder.  

Subsequently, this development fully or at least substantially was completed with respect to the dry eyes, psychiatric disorder, and right foot and ankle disorder issues.  Adjudication accordingly may proceed with respect to them if otherwise in order.  See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

Of note is that the aforementioned development led to an October 2012 rating decision in which the initial evaluation for a psychiatric disorder was increased to 50 percent effective June 1, 2008.  This increased evaluation, although it covers the entire period on appeal, does not represent the maximum evaluation available.  Accordingly, the issue of a higher evaluation for a psychiatric disorder remains.  AB, 6 Vet. App. at 35.  

Based on review of the Veteran's claims file and his Virtual VA "eFolder," no potential problems with adjudication at this time concerning dry eyes, a psychiatric disorder, and a right foot and ankle disorder are identified.  The following determinations therefore are made.  However, the aforementioned review shows that the additional development directed by the Board in May 2011 with respect to bilateral hearing loss has not been completed or even substantially completed.  Entitlement to service connection for bilateral hearing loss thus is addressed in the REMAND portion of the decision below.  It as such is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence is in relative equipoise regarding whether or not the Veteran's current dry eyes are related to his active duty service.

2.  The Veteran's psychiatric disorder does not cause occupational and social impairment with deficiencies in most areas.

3.  The Veteran's right foot and ankle disorder was not manifested by moderate limitation of motion but was of moderate severity through July 5, 2009.  This disorder has not been manifested by severe limitation of motion and has not been moderately severe or severe beginning July 6, 2009.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for dry eyes have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  The criteria for an initial evaluation in excess of 50 percent for a service-connected psychiatric disorder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2012).

3.  The criteria for a compensable evaluation of 10 percent, but no higher, for the period on appeal through July 5, 2009, for a service-connected right foot and ankle disorder have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271, 5284 (2012).

4.  The criteria for an evaluation in excess of 10 percent for the period on appeal beginning July 6, 2009, for a service-connected right foot and ankle disorder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271, 5284 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  Service connection for dry eyes is awarded herein.  This constitutes a grant of the benefit sought on appeal for the dry eyes issue encompassed in this matter.  Any errors committed regarding the duty to notify or the duty to assist with respect to it accordingly were harmless and will not be discussed.  A higher initial evaluation for a service-connected psychiatric disorder is denied herein.  A higher evaluation for a service-connected right foot and ankle disorder is partially granted and partially denied herein.  Discussion of the duties to notify and assist therefore is required for these issues of this matter.

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 elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information regarding the assignment of an initial evaluation and effective date therefore must be included in case service connection is awarded.  Id.  With respect to higher evaluation claims, generic rather than specific information of the evidence needed to substantiate the claim must be provided.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)).  This includes evidence demonstrating a worsening or increase in severity of the service-connected disability and the effect that worsening has on employment.  Id.  Information on how evaluations and effective dates are assigned also must be provided.  Id.; see also Dingess, 19 Vet. App. at 473.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (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.  Indeed, VA's duty to notify has been satisfied.  The psychiatric disorder issue initially was one of entitlement to service connection while the right foot and ankle disorder issue was one of entitlement to a higher evaluation, as noted above.  An August 2008 letter informed the Veteran of the criteria for establishing service connection as well as a higher evaluation, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He further was informed therein of the how VA determines evaluations, which was noted to include consideration of the impact on employment, and effective dates.  The letter accordingly addressed all notice elements and preceded the initial adjudication by the AOJ, which in this case is the RO, in October 2008.  

Nothing more than the aforementioned is required.  It follows that the March 2009 letter readdressing some of the notice elements went above and beyond what was necessary.  It further went above and beyond what was necessary by providing some specific as well as general notice regarding the evaluation notice element for the service-connected right foot and ankle disorder.

Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of service treatment records and other pertinent treatment records, whether or not they are in Federal custody, as well as provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  

The Veteran's service treatment records and VA treatment records have been obtained.  This occurred through VA's efforts, him submitting them on his own behalf, or both.  Discussed below is that the service treatment records may be incomplete.  This is of no consequence to the psychiatric and right foot and ankle disorders, however, as the records cannot concern whether a higher evaluation for these disorders is warranted.  They indeed are too old to concern the current severity of these disorders.  No pertinent private treatment records have been obtained by VA.  Attempts in this regard have not even been made.  However, this is because no private individuals or facilities providing treatment for the Veteran's psychiatric disorder or right foot and ankle disorder specifically have been identified by him or his representative.  Their response to a May 2011 letter requesting such identification in compliance with the Board's remand indeed was a May 2011 statement that all pertinent care is provided by VA and that no information is available from private physicians.  Yet it is of note that some private records as well as a letter dated in 2008 were submitted by the Veteran or his representative.

VA medical examinations concerning the Veteran's psychiatric disorder were performed in October 2008 and June 2011.  VA medical examinations concerning his right foot and ankle disorder were performed in September 2008, September 2009, and June 2011.  The June 2011 examinations were conducted pursuant to the Board's remand.  With one exception, each examiner reviewed the Veteran's claims file as well as his medical records.  There is no indication whether or not the September 2008 examiner undertook such review.  However, this possible lack of review is of no import here.  The Veteran indeed gave an accurate account of his relevant medical history to the aforementioned examiner.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that the mere fact that an examiner did not review the claims file does not render a medical examination inadequate, particularly where the content of the examination shows that the examiner was familiar with the Veteran's history); D'Aries v. Peake, 22 Vet. App. 97 (2008) (same).  He also did so to all of the other examiners.  Each examiner interviewed the Veteran regarding his relevant symptomatology.  Each examiner also undertook a mental or physical assessment, to include review or completion of diagnostic tests, as applicable.  Finally, some examiners commented upon the severity of the disorder at issue.  All questions necessary to render the determinations made herein accordingly were answered.  As such, each of the examinations is adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations as those providing sufficient detail so that the Board can perform a fully informed evaluation).

Discussion of the Veteran's September 2010 Video Conference hearing finally is necessary.  The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2).  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  The issues on appeal were identified at beginning of the hearing.  They were explained in that information was elicited from the Veteran regarding the symptoms, treatment, and impact on life of his psychiatric and right foot and ankle disorders.  Their severity was addressed, in other words.  An attempt was made to identify evidence that may have been overlooked in that information was elicited from the Veteran regarding where he receives treatment for his psychiatric disorder and right foot and ankle disorder.  He reported receiving treatment at VA for both with only general treatment by a private family physician.  This corresponds with the May 2011 letter in which the Veteran and his representative denied the existence of private treatment records.  VA is tasked with obtaining VA treatment records.  Since no evidence for which action by the Veteran is needed was overlooked, it was unnecessary to specifically suggest the submission of any evidence.  

It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication that has not been completed.  The record also does not indicate any such development.  The Board thus finds that VA's duty to assist has been satisfied.  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, 16 Vet. App. at 183.  

As both the duty to notify and the duty to assist have been met, adjudication may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Service Connection

Service connection "basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . or if preexisting such service, was aggravated therein."  38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1110.  To establish service connection, there generally must be (1) medical or satisfactory lay evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical or satisfactory lay evidence of a nexus between the current disability and the in-service disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303.  

Service connection also may be established if the evidence of record reveals chronicity or continuity.  38 C.F.R. § 3.303(b).  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  Id.; Barr, 21 Vet. App. at 303.  Continuity of symptomatology post-service is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity legitimately may be questioned.  Id.; Savage v. Gober, 10 Vet. App. 488 (1997).  

Further, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran.  See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence must be undertaken.  

Lay evidence indeed may be sufficient by itself to support a claim.  Barr, 21 Vet. App. at 307.  This is the case where the evidence is both competent and credible.  Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted."  Layno v. Brown, 6. Vet. App. 465 (1994).  

A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge.  Id.  In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible.

The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  As such, the Veteran prevails when the evidence supports him or is in relative equipoise but does not prevail when the preponderance of the evidence is against him.  Id.

Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  The evidence leads the Board to conclude that service connection for dry eyes is warranted.  All necessary requirements for establishing entitlement to this benefit are met.  

A current disability exists when there is a disability when a claim for it is filed or at any time during the pendency of such claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Veteran filed his claim in June 2008.  It is undisputed that he has manifested dry eyes during the timeframe from then to present.  Private Dr. E.F. noted in November 2010 that the Veteran had a dry eye condition.  Dry eye syndrome, both eyes, was diagnosed at a June 2011 VA medical examination concerning his eyes.  

The Veteran manifested dry eyes during his active duty service.  Service treatment records dated during this service are silent with respect to dry eyes.  Yet is it undisputed that this service included service in Iraq/Kuwait from April 2003 to May 2004.  The Veteran's DD-214 clearly confirms this.  He has recounted two instances of having to drive without a windshield because it was blown out while in Iraq.  He further has recounted that he got sand and dust in his eyes as a result, which led to dry eyes.  

As there is no indication that the Veteran possesses any kind of medical background, he is a lay person.  He is competent with respect to the above because he would have experienced the events recounted personally.  He also is credible in this regard because there is no significant reason for doubt.  He has not been inconsistent.  It is facially plausible that the windshield of a vehicle would be blown out in Iraq, that sand and dust therefore would get into the driver's eyes, and that this would result in dry eyes.  This is consistent with the other evidence.  In particular, soldiers serving with the Veteran did not reference a blown out windshield but did confirm taking fire during a convoy mission (which could have blown out the windshield).  K.Z., also a lay person for the same reason the Veteran is, has indicated that the Veteran's eyes were dry during a period of leave from deployment to Iraq.  She is competent because she would have been capable of observing his condition and credible because, like with the Veteran, there is no significant reason for doubt.  The undersigned Veterans Law Judge found the testimony and demeanor of both the Veteran and K.Z. at the September 2010 Video Conference hearing to be indicia of their truthfulness.  The Veteran and thus K.Z. are self-interested and desire to gain financially, in that the grant of service connection could result in the receipt of greater compensation benefits, but these factors are outweighed by the aforementioned factors. 

There is no indication that the Veteran's dry eyes preexisted his active duty service.  No entrance examination for this service is of record.  See Gilbert v. Shinseki, No. 11-2355 (U.S. Vet. App. Oct. 24, 2012); Smith v. Shinseki, 24 Vet. App. 40 (2010); Crowe v. Brown, 7 Vet. App. 238 (1994); Bagby v. Derwinski, 1 Vet. App. 225 (1991) (collectively noting that while the presumption that the Veteran was in sound condition when he entered into service except as to problems noted at that time or where clear and unmistakable evidence demonstrates that a problem preexisted service and was not aggravated by service applies since there is an in-service manifestation, there is no basis to determine whether or not the Veteran was in sound condition upon his entry into service if there is no entrance examination).  However, service treatment records dated during the Veteran's time in the National Guard prior to this service contain no mention whatsoever to dry eyes.  The last, which is an examination, is dated in November 2002 only a few months prior to the beginning of his active duty service.  Both the Veteran and K.Z. deny that he had dry eyes prior to this service.  They are competent and credible in this regard for the same reasons as above.  The manifestation of dry eyes during active duty service thus constitutes incurrence rather than aggravation of a prior problem.  

What remains for consideration is whether or not there is a link, to include through chronicity or continuity of symptomatology or otherwise, between the Veteran's current dry eyes and his incurrence of dry eyes during active duty service.  It is clear that he and K.Z. believe such a nexus exists.  Competent medical evidence is not necessarily required when the determinative issue involve medical etiology.  It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  

Yet the question of whether there exists a nexus in this case is medical in nature.  Of note in this regard are the numerous potential causes of dry eyes and the complexities of eyes.  Only those with medical knowledge, training, or experience therefore are competent to opine as to nexus.  Jones v. West, 12 Vet. App. 460 (1999).  It follows that, as lay persons without such knowledge, training, or experience, the Veteran and K.Z. are not competent to render an opinion that the required nexus exists.  Cromley v. Brown, 7 Vet. App. 376 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  

Two medical opinions are of record.  They are in conflict.  In November 2010, private Dr. E.F. opined that it is at likely as not that the Veteran's current dry eyes "is largely, if not entirely, the result of his military experience" to include particularly his operating a vehicle without a windshield in the Middle East.  It was noted that this opinion was based on assessment of the Veteran as well as on Dr. E.F.'s training and experience as a physician.  The examiner who conducted the June 2011 VA medical examination concerning the Veteran's eyes opined that his current dry eyes is not caused by or a result of his active duty service.  It was explained that any effect of sand and dust getting in the eyes generally ends when the material is removed and noted that the Veteran got sand and dust in his eyes during this service over seven years ago.  Also noted was that there was no evidence of abrasion or scarring from the sand and dust that got into the Veteran's eyes during this service.  Lastly, the cause of his dry eyes was deemed to be likely due to his blepharitis.

Many factors may be considered in assessing the probative value of a medical opinion.  These include a physician's access to the claims file or other pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of the assessment conducted, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  

Here, the qualifications and expertise of Dr. E.F. and the VA examiner are not questioned.  Both are physicians.  Neither is more qualified than the other, as neither noted specializing in eye treatment.  Both examiner the Veteran.  There is no indication that the scope of the VA examiner's assessment for him was deficient.  It is presumed that the scope of Dr. E.F.'s assessment was sufficient given that the Veteran is a patient.  The VA examiner reviewed the claims file as well as the Veteran's medical records.  Dr. E.F. did not review the claims file.  However, he did review "available medical records" in addition to his treatment records.  Neither Dr. E.F.'s opinion nor the VA examiner's opinion was based upon an inaccurate factual premise.  The Veteran's in-service dry eyes due to getting sand and dust in them such as would result from driving without a windshield, which was considered by both, indeed was found above to be accurate.  Neither the opinion of Dr. E.F. nor of the VA examiner was expressed with any uncertainty.  The VA examiner's opinion contained a rationale.  It indeed was explained why the Veteran's current dry eyes is unrelated to his active duty service.  This involved a discussion of the pertinent evidence.  No rationale was provided by Dr. E.F.  Indeed, referring simply to training and expertise as a physician does not explain how he concluded that the Veteran's current dry eyes is related to his active duty service.  It follows that the VA examiner's opinion is more thorough and detailed than Dr. E.F.'s opinion.

In sum, none of the aforementioned factors are problematic when it comes to the VA examiner's opinion while a few are problematic when it comes to Dr. E.F.'s opinion.  The VA examiner's opinion therefore is entitled to more probative value than Dr. E.F.'s opinion.  Yet there is evidence of continuity of symptomatology that supports Dr. E.F.'s opinion.  

Both the Veteran and K.Z. have recounted that he had dry eyes persistently since his active duty service.  They are competent and credible to so recount for the same reasons as above.  Of particular import in this regard is that their recount is consistent with the other evidence.  A private treatment record dated in June 2006, 2007, or 2008 (after July 2005 which is noted on the record and prior to its receipt by VA in June 2008) contains a diagnosis of dry eyes after the Veteran's complaint that it felt as if there was something like gravel in them.  An October 2008 VA treatment records reveals the Veteran's complaint of grit and matter in his eyes in the morning.  Dr. E.F.'s opinion and the VA examiner's opinion, both of which rested on diagnoses made after similar complaints, were dated respectively as noted above in November 2010 and June 2011.  The Board notes that it appears the VA examiner did not consider continuity of symptomatology.  There indeed was no discussion of whether or not the Veteran had dry eyes ever since his active duty service, whether as due to blepharitis or otherwise.

Weighing the VA examiner's negative opinion against the combination of Dr. E.F.'s positive opinion and the continuity of symptomatology manifested by the Veteran, the evidence concerning nexus is in relative equipoise.  The statute, regulation, and caselaw applicable in this circumstance stipulate that the Veteran prevails.  A nexus between his current dry eyes and incurrence of dry eyes during active duty service accordingly is established.  Nexus is the last of the necessary requirements for awarding service connection.  Thus, this benefit is granted.

III.  Higher Evaluations

The Veteran seeks a higher initial evaluation for his service-connected psychiatric disorder and a higher evaluation for his service-connected right foot and ankle disorder.  He contends that his psychiatric disorder is more severe than contemplated by a 50 percent initial evaluation.  He contends that his right foot and ankle disorder was more severe than contemplated by a noncompensable evaluation for the period on appeal through July 5, 2009, and has been more severe than contemplated by an evaluation of 10 percent for the period on appeal beginning July 6, 2009.

A.  Schedular

Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage for that disability.  The percentage evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability.  38 U.S.C.A. § 1155.  One is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage evaluations.  Id.; 38 C.F.R. § 4.10; Schafrath, 1 Vet. App. at 589.  It is not expected, especially with a more fully described disability, that all cases will show all the specified criteria for a percentage evaluation.  38 C.F.R. § 4.21.

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Consideration must be given to whether staged evaluations are warranted at any point during the pendency of the claim where an appeal arises from an initially assigned disability evaluation, as is the case here with respect to a psychiatric disorder.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The same consideration further must be given where entitlement to compensation has already been established and an increase in the disability evaluation is at issue, even though the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994); Hart, 21 Vet. App. at 505.  This is the case here with respect to a right foot and ankle disorder.  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which a disability exhibited symptoms meeting the criteria for different evaluations during the course of the appeal, the assignment of a distinctive evaluation for each of the time periods is for application.

Like with service connection, the Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran.  See Gabrielson, 7 Vet. App. at 36, Masors, 2 Vet. App. at 181; Wilson, 2 Vet. App. at 614; Hatlestad, 1 Vet. App. at 164; Gilbert, 1 Vet. App. at 49.  An assessment of all elements affecting the probative value of the evidence indeed must be undertaken.  38 C.F.R. § 4.6.  This includes both medical evidence as well as lay (non medical) evidence.  

Also like with service connection, the benefit of the doubt similarly shall be given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49.  The Veteran thus prevails when the evidence supports him or is in relative equipoise but does not prevail when the preponderance of the evidence is against him.  Id.

Of note at the outset, the Veteran is competent as a layperson in reporting his symptoms and in describing their impact because he experiences both.  K.Z. is competent as a layperson in so reporting because she observes both.  The Veteran and K.Z. are credible in their reports because no significant reason for doubt exists.  It once again is acknowledged that the Veteran, and through him K.Z., are self-interested in that they desire to gain financially.  This readily is inferred from the fact that this matter includes higher evaluation issues, which if granted would result in greater compensation benefits.  Yet the Veteran's and K.Z.'s reports are facially plausible as well as consistent with one another.  They by and large are not inconsistent with the other evidence.  In other words, they are not inconsistent with the medical evidence.  It is reiterated that the undersigned Veterans Law Judge further found the testimony and demeanor of the Veteran and K.Z. at the September 2010 Video Conference hearing to be indicia of their truthfulness.  Their competency and credibility therefore is conceded where at issue in the discussion below.

It is reiterated that all the evidence once again has been reviewed though only the most salient and relevant evidence is discussed below.  Gonzales, 218 F.3d at 1378.  

1.  Psychiatric Disorder

The Veteran's psychiatric disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  Pursuant to this regulation, a 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.

The maximum 100 percent evaluation is reserved for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  Richard v. Brown, 9 Vet. App. 266 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994)).  GAF scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships.  Score ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  GAF scores ranging from 31 to 40 indicate impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).

An examiner's classification of the level of impairment, by GAF score or by words, thus is to be considered but is not determinative.  38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995).  The symptoms listed in Diagnostic Code 9411 further are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  It is not required that "all, most, or even some of the enumerated symptoms" be found in order to assign a particular evaluation.  Id.  Rather, all manifested symptoms that impact occupational or social impairment must be considered.  Id.; 38 C.F.R. § 4.126.  If they demonstrate occupational and social impairment equivalent to what would be caused by the symptoms listed, then the appropriate equivalent evaluation will be assigned.  Id.  

K.Z. noted in a June 2008 statement that the Veteran has nightmares and is short-tempered.  At the September 2010 Video Conference hearing, the Veteran testified that he has short-term memory loss which he has been able to accommodate working full-time as an irrigation technician by taking notes and telephoning people as needed.  He denied having any disciplinary problems at work.  He also testified that he has frequent panic attacks in the form of night sweats, has sleep difficulties, avoids crowds, that K.Z. reminds him about his hygiene, that he has a short temper, and that he has crying spells.  It was noted by the undersigned that he had been crying.  Finally, the Veteran testified that he gets along with his neighbors and associates with some guys from the fire department.  K.Z. testified that the Veteran is forgetful, not as intimate as he used to be, and must be reminded and pushed to contact his parents and children.

June 2008 private treatment records document the Veteran continues to experience significant stress related to his active duty service stressors.  Anxiety, irritability, some depression, insomnia with associated fatigue, overreaction to minor problems; and some decreased concentration, attention, and focus as well as decision making speed were noted.  Absentmindedness and forgetfulness also were noted, but it was reported by the Veteran that he compensated well at work for this by writing things down.

VA treatment records dated from June 2008 to April 2012 document the following.  The Veteran has reported recurrent and intrusive disturbing memories, thoughts, or images of his active duty service stressors with several triggers as well as sleep problems including nightmares/bad dreams, waking up in a cold sweat, insomnia and having a hard time falling asleep, talking in his sleep, and fatigue.  He also has reported getting emotional, some anxiety; some depression, some but not excessive worrying, anger, irritability, short-tempered outbursts, increased startle response, hypervigilance, a dislike of crowds and cities, some problems communicating, and short-term memory problems.  The Veteran has denied a history of violence and of panic, compulsions, suicidal and homicidal ideation, paranoia, delusions, and hallucinations.  He has indicated having good relationships with his wife of 25+ years, his two adult children, and his family to include his parents.  He further has indicated being pretty close with his only sibling.  He has stated that he lacks social activities and hobbies, as he stopped going to sporting events and finds it hard to hunt and fish as he used to because guns now are hard to be around.  The Veteran has indicated that he sees friends on occasion, meets up or otherwise stays in contact with soldiers who were in Iraq with him, and goes to church.  He has felt excited for holidays and trips with his family, which were described as fun.  He had a small get together for a neighbor leaving for deployment to Iraq and participated in a celebration to welcome soldiers home from deployment.  The Veteran finally has reported that he works, though the adjustment when he switched employment was hard, and is a member of his local volunteer fire department.  

The Veteran's grooming and hygiene have been good.  He has dressed casually but appropriately.  He has been alert, attentive, and fully oriented, although he once appeared tired.  His eye contact has been good, and he has had no psychomotor retardation or agitation.  His speech has been fluent, spontaneous, and relevant.  It generally was of normal rate, rhythm, and volume, though the Veteran once was noted to be quiet and soft-talking.  His attitude has been pleasant and cooperative.  His mood has ranged from normal to neutral to sad to depressed to anxious.  His affect has been appropriate and of full range.  It once was noted to be normal, while the Veteran once was noted to be tearful and somewhat "choked up."  His facial expression conveyed worry once, though generally he was described as being in fairly good spirits.  His thought processes have been normal, logical, linear, goal-directed, and coherent.  His thought content have been relevant and usual.  The Veteran's memory has been intact while his insight and judgment have been good.  He has been assigned GAF scores of 55; 58, 60, and 65.  He further has been prescribed medication.

At the October 2008 VA examination, the Veteran complained of recurrent and intrusive disturbing memories, thoughts, or images of his active duty service stressors, recurrent distressing dreams of the stressors, distress and reactivity upon exposure to triggers of them, efforts to avoid anything associated with the stressors, avoidance of crowds, markedly diminished interest or participation in significant activities, feeling detached/estranged from others, restricted range of affect, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startled response.  He denied suicidal and homicidal ideation, delusions, and episodes of violence.  He indicated that he and his wife have a few friends and that his main avocation is yard work.  

The Veteran was clean and casually yet appropriately dressed.  He was deemed able to minimum personal hygiene.  He was attentive and fully oriented with unremarkable psychomotor activity.  His speech also was unremarkable as it was clear and coherent.  His attitude was cooperative and friendly, while his mood ranged from good to sad.  His affect was constricted with tearfulness at times.  The Veteran's attention was intact.  His thought processes and content were unremarkable.  There was no inappropriate behavior and were no panic attacks.  The Veteran's impulse control was good.  With respect to judgment, he understood the outcome of his behavior.  With respect to insight, he understood that he has a problem.  His memory was normal.  It was noted that his primary impairment is to his relationships, as his job allows him to work independently without a lot of interaction.  It additionally was noted that there are very few people in his social network and that he is socially constricted but functioning.  Finally, it was noted that he has a good deal of emotional distress but he covers it and copes with it.  A GAF of 54 was assigned.  It was opined that there is reduced reliability and productivity due to psychiatric symptoms but not deficiencies in most areas or total occupational and social impairment.  The Veteran was noted not to have a problem with activities of daily living.

At the June 2011 examination, the Veteran complained of recurrent and intrusive disturbing memories, thoughts, or images of his active duty service stressors, recurrent distressing dreams of the stressors, acting or feeling as if the stressors were recurring, distress and reactivity upon exposure to triggers of them, efforts to avoid anything associated with the stressors, feeling detached/estranged from others, restricted range of affect, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startled response.  He denied suicidal and homicidal ideation, delusions, a history of assaultiveness, and episodes of violence.  He indicated that he and his wife go to church and that he maintains his yard and occasionally plays golf but that he basically just works.  The Veteran reported continuing on at the fire department, though he avoids calls that require him to perform CPR, and attending a spin class.

The Veteran was clean, neatly groomed, and casually dressed.  He was deemed able to maintain minimum hygiene.  He was attentive and fully oriented with tense psychomotor activity.  His speech also was unremarkable as it was clear and coherent.  His attitude was cooperative and friendly, while his mood was anxious.  His affect was restricted.  The Veteran's thought processes and content were unremarkable.  There was no obsessive, ritualistic, or inappropriate behavior, and there were no panic attacks.  The Veteran's impulse control was good.  With respect to judgment, he understood the outcome of his behavior.  With respect to insight, he understood that he has a problem.  His memory was normal.  It was noted that the Veteran is able to follow a substantially gainful employment and that he was doing quite well in this regard, though he communicates with his boss mostly by telephone and makes a lot of notes to keep himself on task.  A GAF of 59 was assigned.  It was opined that there is an occasional decrease in work efficiency or intermittent periods of an inability to perform occupational tasks due to psychiatric symptoms but with generally satisfactory functioning.  It was opined that there was not reduced reliability and productivity due to psychiatric symptoms, deficiencies in most areas, or total occupational and social impairment.  In other words, the Veteran's symptoms were determined to cause mild to moderate impairment.  He was noted not to have a problem with activities of daily living.

The Board finds, in light of the above, that an evaluation higher than 50 percent is not warranted for a psychiatric disorder.  Symptoms of the Veteran's psychiatric disorder were set forth extensively above.  They have manifested to varying degrees during the period on appeal.  That these symptoms cause occupational and social impairment with reduced reliability and productivity, notwithstanding that one of the opinions rendered is to the contrary, is recognized by the assigned 50 percent evaluation.  Yet there is no indication that these symptoms as a whole have caused even occupational and social impairment with deficiencies in most areas much less total occupational and social impairment.  

It is conceded that the Veteran's symptoms cause mood disturbance.  Such indeed consistently has been reported as well as detected.  However, the Veteran has had little deficiency in one other area as a result of them and no deficiency in any other areas as a result of them.  The relationships between the Veteran and his wife, children, and parents, though minimally to moderately impacted by his symptoms, are good.  He socializes with friends and neighbors to include soldiers who served with him in Iraq.  He additionally goes to church, plays golf sometimes, and at some point started attending a spin class.  There is no indication that interaction between the Veteran and the VA examiners, both of whom had minimal contact with him, and interaction between him and VA treatment providers, who had moderate with him, has been problematic.  Interaction at the Travel Board hearing between the Veteran and the undersigned, a stranger, further was polite and extremely pleasant.  No deficiencies with his judgment or thinking have been identified at any time.  He has not been going to school.  He has been working consistently, with one job change, as well as volunteering with the fire department.  No problems were identified with the Veteran's performance in either.  Indeed, he has been able to compensate effectively for his symptoms by finding employment where he can work alone with minimal interaction with others to include his boss, by taking notes and writing things down, and by avoiding performing CPR.  

Taking the Veteran's manifested symptoms as a whole, GAF scores of 54, 55, 58, 59, 60, and 65 have been assigned.  These scores signify that he consistently has had mild to moderate symptoms or some to moderate difficulty in occupational and social functioning.  They do not signify that he has severe symptoms or severe occupational and social functioning.  They thus convey symptoms productive of occupational and social impairment of lesser severity than that with deficiencies in most areas.

Of additional import, none of the symptoms enumerated as being indicative of causing total occupational and social impairment have been manifested by the Veteran.  None of the symptoms enumerated as being indicative of causing occupational and social impairment with deficiencies in most areas further were manifested by him either.  K.Z. reminds the Veteran about his hygiene and thus his personal appearance, but there is no indication without such reminders he would neglect it.  Irritability was noted, but there were no associated periods of violence conveying impaired impulse control.  The Veteran's impulse control indeed has been good.  Depression has been indicated.  To the extent it has been chronic or near-continuous, the Veteran nevertheless has been able to function independently.  Frequent panic attacks in the form of night sweats were noted by him.  Yet night sweats are more appropriately characterized as sleep difficulty than as panic attacks.  Even if they were appropriately characterized as panic attacks, them being frequent is not the same as them being near-continuous.  They indeed only occur at night, and thus are likely related to nightmares/bad dreams.  Absent is any mention of suicidal ideation, obsessional rituals which interfere with routine activities, speech impairment other than being soft spoken on one occasion, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances such as at work or a work-like setting (indeed, see above regarding the compensation made by the Veteran at work due to his symptoms), and an inability to establish and maintain effective relationships.  Indeed, the opposite of many of these has been found.

Consideration has been given to the benefit of the doubt rule in making each of the above findings.  However, this rule does not apply because the findings were made based on the preponderance of the evidence.  Consideration also has been given to whether a staged evaluation is warranted.  It follows that such an evaluation is not warranted since the above findings apply to the entire period on appeal.

2.  Right Foot and Ankle Disorder

The Veteran's right foot and ankle disorder is evaluated under C.F.R. § 4.71a, Diagnostic Code 5299-5284.  Hyphenated Diagnostic Codes are used when an evaluation for a particular disability under one Diagnostic Code is based upon evaluation under another Diagnostic Code.  See 38 C.F.R. § 4.27.  The four digits before the hyphen is the Diagnostic Code for the disability.  Id.  The current 99 indicates that the Veteran's disability is not listed in the Schedule for Rating Disabilities. The current 52 indicates that it is related most closely to the listed musculoskeletal disabilities.  See 38 C.F.R. §§ 4.20, 4.27.  The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous.  38 C.F.R. § 4.27.

Diagnostic Code 5284 addresses other foot injuries.  A 10 percent evaluation is warranted thereunder for a moderate foot injury.  A moderately severe foot injury merits a 20 percent evaluation.  A 30 percent evaluation is assigned for a severe foot injury.  The highest evaluation of 40 percent is reserved for when there is actual loss of the use of the foot.  Words such as "moderate," "moderately severe," and "severe" are not defined in the Schedule for Rating Disabilities.  "Moderate" is generally defined as "tending toward the mean or average amount or dimension."  See Merriam-Webster's Collegiate Dictionary, Eleventh Edition (2003), 798.  "Severe" is generally defined as "of a great degree: serious."  Id. at 1140.

Other Diagnostic Codes pertain to disabilities of the feet.  These include Diagnostic Code 5276 for acquired flatfoot, Diagnostic Code 5277 for bilateral weak foot, Diagnostic Code 5278 for acquired claw foot (pes cavus), Diagnostic Code 5279 for unilateral or bilateral anterior metatarsalgia (Morton's disease), Diagnostic Code 5280 for unilateral hallux valgus, Diagnostic Code 5281 for unilateral severe hallux rigidus, Diagnostic Code 5282 for hammer toe, and Diagnostic Code 5283 for malunion or nonunion of the tarsal or metatarsal bones.  

In addition, several Diagnostic Codes address ankle disabilities.  Diagnostic Code 5010 addresses arthritis due to trauma substantiated by X-ray findings.  It provides that rating shall be as for arthritis, degenerative.  Degenerative arthritis is the subject of Diagnostic Code 5003.  Under Diagnostic Code 5003, degenerative arthritis must be established by X-ray evidence.  Evaluations for degenerative arthritis shall be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  If, however, evaluation on this basis results in a noncompensable evaluation, the Veteran shall be awarded a 10 percent evaluation for each major joint or group of minor joints affected by limitation of motion, to be combined but not added.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of any limitation of motion, involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement.  38 C.F.R. § 4.45.

Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss.  Id.  

Diagnostic Code 5271 addresses limited motion of the ankle.  Though considered in assigning the Veteran's evaluation since July 6, 2009, it has not been identified as being used to evaluate his right foot and ankle disorder.  Moderate limitation of motion of the ankle warrants a 10 percent evaluation under it.  Marked limitation of motion of the ankle warrants the maximum 20 percent evaluation.  Normal range of motion for the ankle is from 0 degrees to 20 degrees dorsiflexion and from zero degrees to 45 degrees plantar flexion.  38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5270 is for ankylosis of the ankle, while Diagnostic Code 5272 is for ankylosis of the subastragalar or tarsal joint.  Diagnostic Code 5273 concerns malunion of the os calcis or astragalus.  Finally, Diagnostic Code 5274 for astragalectomy. 

In a May 2008 letter, private Dr. G.K. indicated that the Veteran has recurrent pain due to right heel scar tissue.

K.Z. noted in a June 2008 statement that the Veteran's right heel is painful and causes him to limp.  At the September 2010 Video Conference hearing, the Veteran testified that has problems with balance on uneven ground, such as at his work, due to right foot and ankle instability.  He indicated that he falls a lot.  He further testified that he has right foot and ankle muscle cramps as well as swelling and fatigue at the end of the day.  The Veteran noted using a brace to include at night and shoe orthotics, walking with the aid of a shovel, icing, sleeping with a bar of soap against it in bed, and taking medication.  

VA treatment records dated from June 2008 to December 2010 reveal the following.  The Veteran has complained of pain that sometimes is intermittent and sometimes is really bad in his right foot, heel, ankle, and Achilles tendon with radiation up his leg.  He began complaining of instability/a feeling of giving way particularly on uneven surfaces in 2009, and on one occasion complained of a muscle cramp.  He further has complained of enlargement of the back part of his right heel as well as some redness and swelling.  He has indicated that he soaks his foot and that he wears supportive shoes such as boots that lace up.  A palpable prominence of the right heel and Achilles tendon area, for which a cavus deformity contributes, have been found.  There has been tenderness to palpation of that area.  There also has been pain and weakness with resisted foot eversion.  Strength otherwise has been normal.  Mild swelling has been found on occasion, but there has been no edema.  Sensation has been intact.  Range of motion of the right ankle has not been limited or painful.  Instability has not been found, though it has been diagnosed per the Veteran's report.  2008 X-rays have showed a calcaneal spur.  Magnetic resonance imaging (MRI) conducted in 2010 showed chronic ligament tears, tenosynovitis, and a posttraumatic deformity of the ankle bone.  Medication, physical therapy, stretching, massage, shoe inserts and wedges, and wearing splints or braces to include at night has been prescribed.  Further, surgery has been noted to be a possibility.  

At the September 2008 VA examination, the Veteran reported right heel and Achilles tendon pain radiating into his lower calf which makes his job more difficult, prevents him from walking for greater than 1/4 mile especially on uneven surfaces as required by his job, prevents him from standing for over an hour, and troubles him when he mows the lawn such that K.Z. helps out.  He noted that he takes medication and wears lace up boots most of the time.  There was tenderness to palpation of the Achilles tendon but no swelling, instability, weakness, muscle atrophy, tendon abnormality, ankylosis, or abnormal weight bearing.  There also was no The Veteran's gait was normal.  His right ankle dorsiflexion initially was from zero to 20 degrees with pain from 17 to 18 degrees, while plantar flexion was from zero to 45 degrees with pain from 40 to 42 degrees.  He had the same range of motion upon repetition.  

At the September 2009 VA examination, the Veteran reported right ankle pain, stiffness, weakness, fatigue, and occasional giving way.  Flare ups were reported with activity and wearing the wrong shoes.  The Veteran indicated that these symptoms prevent him from standing for more than 15 to 30 minutes, prevent him from walking more than one block, and sometimes cause him to fall.  He indicated that he takes medication and uses a brace at night.  There was pain, occasional clicking and crepitus, and minimal swelling.  There was no incoordination, ankylosis, or abnormal weight bearing.  The Veteran's gait was minimally antalgic.  His right ankle dorsiflexion initially was to 5 degrees while his plantar flexion initially was to 45 degrees.  Upon repetition, he sometimes could only attain zero degrees of dorsiflexion.  Plantar flexion did not change.  Range of motion was with mild pain.  It was described as slightly decreased.  It further was noted that range of motion during a flare up could not be determined without resort to mere speculation.  X-rays showed moderate degenerative disease of the right ankle with a posttraumatic deformity of the fibula.

The Veteran complained of right ankle pain, stiffness, weakness, instability, giving way, and some swelling which results in him being able to stand for only 10 minutes and walk for only one or two blocks at the June 2011 VA examination.  He noted flare ups with activity but especially walking on uneven ground, weather to include cold, and neglecting to wear his brace or to take his medication.  He stated that he ices, limits activity, elevates, soaks his feet, wears a splint at night in addition to the day brace, does exercises, and stretches to help alleviate his symptoms.  Tenderness to palpation near the ankle bone and Achilles tendon was found, as was mild swelling near the ankle bone and ankle joint laxity.  There was no weakness, ankylosis, or abnormal weight bearing.  The Veteran's gait was antalgic.  His right ankle dorsiflexion initially was from zero to 15 degrees with pain beginning at five degrees, while plantar flexion was from zero to 40 degrees with pain beginning at 30 degrees.  He had the same range of motion upon repetition, though there was increased pain.  It was noted that range of motion during a flare up could not be determined without resort to mere speculation.  September 2010 X-rays were noted to show right ankle degenerative joint disease, deformity of the right fibula, and a tiny calcaneal spur. 

It was determined in the August 2010 addendum to the last examination that there was no evidence of tibia or fibula impairment other than the mild posttraumatic deformity of the right fibula, malunion or nonunion of the tibia and fibula, or malunion of the os calcis or astragalus. 

At the outset, the Board notes that numerous Diagnostic Codes discussed above as potentially applicable do not apply.  This includes Diagnostic Codes 5003, 5010, 5270, 5272 and 5273, and 5276 through 5283.  The Veteran has not had an astragalectomy.  There never has been an indication of malunion or nonunion of the tarsal or metatarsal bones.  Ankylosis of the ankle, ankylosis of the subastragalar or tarsal joints, and malunion of the os calcis or astragalus specifically have not been found.  Degenerative arthritis whether or not due to trauma, though confirmed via X-rays, need not be considered because there is compensable limitation of motion.  Acquired flatfoot, bilateral weak foot, unilateral or bilateral anterior metatarsalgia, unilateral hallux valgus, unilateral severe hallux rigidus, and hammer toe have not been diagnosed.  Acquired claw foot has been found in that there is a cavus deformity.  However, it is not encompassed in the Veteran's right foot and ankle disorder which consists of right foot heel spur and Achilles enthesopathy with right ankle musculoligamentous strain.  Yet it is of note that no medical professional has undertaken the effort to differentiate the symptoms of this non-service-connected deformity from the symptoms of the service-connected right foot and ankle disorder.  The Board is precluded from doing so on its own.  See Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136 (1996)).  As such, all symptomatology shall be considered attributable to the right foot and ankle disorder.  

That leaves Diagnostic Codes 5284, for other foot injuries and Diagnostic Code 5271, for limitation of motion of the ankle.  Until July 5, 2009, the Veteran's service-connected disorder consisted only of right foot heel spur and Achilles enthesopathy.  It is conceded, however, that problems with the Achilles tendon could affect ankle range of motion.  Diagnostic Code 5271 therefore shall be considered in addition to Diagnostic Code 5284 for the aforementioned period as well as for the period thereafter.  

Given the above, the Board finds that a compensable evaluation is warranted for the period on appeal through July 5, 2009.  No limitation of motion much less moderate limitation of motion, whether painful or otherwise, was found in treating the Veteran during the aforementioned period.  Range of motion was specifically measured only once, and it was full albeit with some pain initially and upon repetition.  A compensable evaluation under Diagnostic Code 5271 therefore is not possible.  Regarding Diagnostic Code 5284, a 10 percent evaluation but no higher is possible.  The Veteran's symptoms were moderate and did not arise to the level of moderately severe much less to the level of severe.  He experienced pain, swelling, redness, and began to experience weakness and instability or at least feelings of instability.  He had tenderness to palpation of the right heel and Achilles tendon area, and a palpable prominence there in the form of a calcaneal spur.  These symptoms impacted his life, to include engaging in numerous remedies to alleviate them.  Yet they did not impact him to the extent that his standing and walking was extremely limited, that he required a bona fide ambulatory aid, or that he could not perform some yard work or his duties as an irrigation technician.  In other words, his life was somewhat but not substantially impacted.

The Board further finds and an evaluation in excess of 10 percent for the period on appeal beginning July 6, 2009, is not warranted.  For Diagnostic Code 5271, the Veteran's right ankle limitation of motion is most appropriately characterized as moderate rather than marked.  No limitation of motion whatsoever, whether painful or otherwise, once again was found in treating the Veteran.  Range of motion was specifically measured twice.  Plantar flexion was full initially and repeatedly despite pain on one occasion and only five degrees less than full despite pain initially and repeatedly on the other occasion.  This equates to almost 90 percent to normal plantar flexion.  Dorsiflexion was to five degrees with pain initially and repeatedly on one occasion, but it was to 15 degrees with pain initially and repeatedly on the other occasion.  There thus was between 25 and 75 percent of normal dorsiflexion.  The 25 percent finding is an anomaly, given that there were findings of much greater dorsiflexion both prior to it and following it.  

Acknowledgement is given to the Veteran's report of flare ups, particularly with activity, of his symptoms.  It cannot be determining that there is limitation of motion greater than that usually observed.  Opinions in this regard have not been provided with the explanation that estimating such would be speculative.  This presumably is because the Veteran was not experiencing a flare up at the time he was examined.  "Pure speculation or remote possibility" is insufficient when considering the degree of disability present.  38 C.F.R. § 3.102.  While a remand for another examination during a flare up is an option, such inherently would be difficult to schedule.  Of further note is that there is no indication that such an examination potentially would be helpful to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (declining to require strict adherence to requirements and impose additional burdens on VA when no benefit would flow to the claimant from doing so); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).  He has indicated that his symptoms flare up, but has not indicated that his increased symptoms result in more limitation of motion than normal.  That initial and repeated motion are the same strongly suggests there is not more limitation than normal during a flare up.  Repeated motion simulates increased activity.

Turning to Diagnostic Code 5284, the Veteran's symptoms are somewhat worse than they were through July 5, 2009.  Yet they still are moderate rather than moderately severe or severe.  The pain, swelling, redness, weakness, and instability/giving way or at least feelings of instability have continued.  The Veteran additionally has stiffness and fatigue.  There again was pain and tenderness to palpation of the ankle and Achilles tendon.  Additionally, there was swelling, occasional clicking and crepitus, a fibula deformity, ligament tears, and gait abnormality.  It is questionable whether the ligament tears really are new, as only one MRI capable of detecting such injury was performed.  It further is doubtful that the fibula deformity is new, as it was characterized as posttraumatic and there is no indication that the Veteran suffered an injury at any point on appeal.  X-rays could have missed such an injury for a variety of reasons to include focusing more specifically on the heel and foot rather than the ankle and lower leg bones.  The rest of the additional symptoms and findings are not substantial.  Accordingly, the Veteran's symptoms impacted his life somewhat but not substantially as before.

Of final note is that the Veteran is not entitled to an evaluation for his right foot and a separate evaluation for his right ankle.  Pyramiding, evaluating the same disability or the same manifestation of a disability under different Diagnostic Codes, is to be avoided.  38 C.F.R. § 4.14.  It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit evaluation under several Diagnostic Codes.  The critical element permitting the assignment of multiple evaluations under several Diagnostic Codes is that none of the symptomatology for any one of the disorders is duplicative or overlapping with the symptomatology of the other disorder.  Esteban v. Brown, 6 Vet. App. 259 (1994).  This is not the situation here.  The Veteran's right foot and right ankle symptoms are not separate and distinct, and thus they have been evaluated as a whole.

Consideration has been given to the benefit of the doubt rule in making each of the above findings.  However, this rule does not apply because the findings were made based on the preponderance of the evidence.  Consideration also has been given to whether a staged evaluation is warranted.  It follows that such an evaluation is not warranted since the above findings apply respectively to the entire period they concern.  Since a 10 percent evaluation was granted for the period on appeal through July 5, 2009, and a 10 percent evaluation was continued for the period on appeal beginning July 6, 2009, the staged evaluation in effect has been eliminated.

B.  Extraschedular

The above determinations continuing the initial evaluation for the Veteran's psychiatric disorder, granting a compensable evaluation for his right foot and ankle disorder for the period on appeal through July 5, 2009, and continuing his evaluation for this disorder for the period thereafter, as they involve application of pertinent provisions of the VA's Schedule for Rating Disabilities, are made on a schedular basis.  One other avenue exists through which a higher evaluation can be obtained.  Specifically, it is possible to assign an evaluation on an extraschedular basis.  38 C.F.R. § 3.321(b).

Steps to be taken regarding extraschedular evaluations were set forth in Thun v. Peake, 22 Vet. App. 111 (2008).  A determination of whether the evidence presents such an exceptional disability picture that the available applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board.  If the evaluation criteria are inadequate, the RO or Board must proceed to determine whether the Veteran's exceptional disability picture exhibits 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 consideration of an extraschedular evaluation.

Here, neither the Veteran nor his representative has argued for an extraschedular initial evaluation or evaluation.  There is no indication otherwise that his psychiatric disorder or right foot and ankle disorder cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above.  The Veteran's psychiatric disorder has numerous symptoms.  Some of these symptoms specifically are accounted for by the schedular evaluation criteria.  The rest specifically are accounted for by associated caselaw, specifically Mauerhan.  These sources thus contemplate all of the Veteran's symptoms.  The predominant symptoms of the Veteran's right foot and ankle disorder are pain and swelling contributing to limitation of motion as well as instability.  The schedular evaluation criteria along with associated statutes, regulations, and caselaw such as DeLuca specifically address them.  Indeed, limitation of motion and pain are specifically addressed, while instability and swelling are more generally addressed along with all other symptoms.

Higher evaluations for both a psychiatric disorder and a right foot and ankle disorder exist pursuant to the applicable schedular evaluation criteria.  The initial evaluation and evaluation granted as well as continued herein accurately describe the severity of the Veteran's psychiatric and right foot and ankle disorders because, as explained above, higher evaluations are not warranted.  The effect each had or has on him is encompassed by the aforementioned respective initial evaluation or evaluations, in other words.  These effects were discussed above.

Given that the applicable schedular evaluation criteria are adequate, the Board finds that the Veteran does not manifest an exceptional psychiatric disorder disability picture or right foot and ankle disorder disability picture.  Discussion of whether he exhibits related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  Further, referral for consideration of the assignment of an evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

C.  Total Disability Evaluation Based on Individual Unemployability

Of final note is that "a request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities ... as part of a claim for increased compensation."  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Comer v. Peake, 552 F.3d 1662 (Fed. Cir. 2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  Here, there is no indication that the Veteran has been unemployable due to his psychiatric disorder and/or right foot and ankle disorder at any point during the period on appeal.  It is conceded that they have significantly affected his employability.  Yet he has indicated working despite the effects of them, as set forth above.  Consideration of TDIU as a component to this matter thus is not warranted.


ORDER

Service connection for dry eyes is granted.

An initial evaluation in excess of 50 percent for a psychiatric disorder is denied.

A compensable evaluation of 10 percent for a right foot and ankle disorder for the period on appeal through July 5, 2009, is granted, subject to the laws and regulations governing monetary awards.

An evaluation in excess of 10 percent for a right foot and ankle disorder for the period on appeal beginning July 6, 2009, is denied.


REMAND

The issue of entitlement to service connection for bilateral hearing loss unfortunately must be remanded.  Although the Board sincerely regrets the additional delay, adjudication cannot proceed without further development.  This is because "a remand by . . . the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders."  Stegall, 11 Vet. App. at 268.  

In its May 2011 remand, the Board directed that arrangements be made for the Veteran to undergo a VA medical examination regarding his hearing.  A medical opinion was to be provided following assessment if hearing loss arising to the level of a disability for VA purposes was found.  This opinion was to address whether it is at least as likely as not that the Veteran's hearing loss is associated with noise exposure, to include from various weapons being fired as well as from explosions, during his active duty service.

A VA medical examination concerning the Veteran's hearing was conducted in June 2011.  He was found to have bilateral hearing loss arising to the level of a disability for VA purposes.  See 38 C.F.R. § 3.385.  It was opined that the etiology of the Veteran's tinnitus could not be determined o the basis of the available information without resorting to speculation.  An addendum to the examination was obtained in August 2012.  It clarified that the Veteran's tinnitus is at least as likely as not incurred in or caused by his active duty service.  A rationale/explanation in this regard was provided.

It is clear from the above that the Board's remand instructions were not followed or even substantially followed.  The Veteran was examined regarding his hearing, and an opinion was provided.  However, this opinion did not concern his found bilateral hearing loss at all.  It rather concerned his tinnitus.  Yet service connection for tinnitus already had been granted by the time of the examination much less of the addendum thereto.  It indeed was granted by the Board in May 2011, as noted above.

Without an examination completed with the medical opinion directed by the Board, a fully informed evaluation of the Veteran's entitlement to service connection for bilateral hearing loss is impossible.  The examination and addendum as they stand thus are inadequate as well as in violation of Stegall.  See Barr, 21 Vet. App. at 303 (holding that if VA undertakes the effort to provide a medical examination or opinion with respect to a claim of entitlement to service connection, whether or not obligated to do so, the duty to assist requires that it be adequate such that it allows the Board to perform a fully informed evaluation).  To cure both the inadequacy and the Stegall violation, another VA medical examination complete with opinion is needed.  A remand is required so that arrangements can be made to schedule the Veteran for such.

Of note is that the medical opinion provided must address noise exposure during active duty service from running trucks and generators as well as from various weapons being fired and explosions.  Such exposure due to close proximity to running trucks and generators indeed had been contended by the Veteran.  The medical opinion provided also must address aggravation of preexisting hearing loss during active duty service rather than incurrence of bilateral hearing loss during this service.  Service treatment records dated during the Veteran's time in the National Guard prior to this service show that he had at least intermittent bilateral hearing loss.  This loss mostly did not arise to the level of a disability for VA purposes.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (defining normal hearing as the range from 0 to 20 decibels and thus defining abnormal hearing as anything above 20 decibels).  However, the November 2002 examinations shows that it did arise to the level of a disability for VA purposes in the left ear.  

It is reiterated that there is no entrance examination for the Veteran's active duty service.  There additionally is no separation examination for this service.  The last service treatment record, a report from the Veteran on his health, indeed is dated in May 2004 a few months prior to his separation.  This report mentions Standard Form 600 created that same day.  No such form is of record.  For these reasons, the Board concludes that the Veteran's service treatment records may be incomplete.  The medical examination complete with medical opinion obtained on remand will be more informed, more accurate, and more complete if any missing service treatment records first are obtained.  VA's duty to assist, as mentioned above, requires that efforts be made to help in the procurement of pertinent records.  Reasonable efforts with respect to records in Federal custody such as service treatment records consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile.  38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2).  The Veteran shall be notified if this circumstance arises.  38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1).  Undertaking these actions requires a remand.

Accordingly, the case is REMANDED for the following action:

1.  Request additional service treatment records regarding the Veteran from all appropriate sources.  Any records obtained shall be associated with the claims file or "eFolder."  Notice shall be provided to the Veteran if any records are not obtained.  He also shall be provided with the requisite time period to submit evidence that can substitute for missing service treatment records.  Document the claims file or "eFolder" as appropriate regarding this paragraph.

2.  Then review the Veteran's claims file and undertake any additional records development indicated.  This shall include requesting updated VA treatment records, if any, regarding him.  This also shall include, with respect to any pertinent private records identified by him during the course of the remand, requesting that he authorize the release of such records to VA or alternatively provide such records to VA himself.  This finally shall include, if such authorization is provided, requesting these records initially with a follow-up request as necessary.  Any records received shall be associated with the claims file or "eFolder."  Notice shall be provided to the Veteran if any records are not received.  Document the claims file or "eFolder" as appropriate regarding this paragraph.

3.  After completion of the above development, arrange for the Veteran to undergo an appropriate VA medical examination regarding his bilateral hearing loss.  The claims file shall be made available to and reviewed by the examiner.  The examiner then shall obtain from the Veteran a description of his relevant history and symptomatology, to include information about onset, frequency, duration, and severity as applicable.  All tests, studies, or evaluations deemed necessary next shall be performed.

The examiner thereafter shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss, which preexisted his active duty service, was permanently aggravated therein.  If in-service permanent aggravation is found, the examiner also shall opine as to whether it is attributable to natural progression, to noise exposure from firing various weapons, explosions, and to running trucks and generators, or to something else.  The examiner further shall opine, if in-service permanent aggravation beyond natural progression is found, as to whether it is at least as likely as not that the Veteran's current bilateral hearing loss is associated with this aggravation.  

The examiner shall discuss the pertinent medical evidence and lay (non-medical) evidence in rendering each of the above opinions.  A complete explanation (rationale) shall be provided for each opinion.  If any opinion cannot be provided without resort to mere speculation, the examiner shall provide a complete explanation for why this is so.  In so doing, the examiner specifically shall indicate whether or not the inability to render the opinion is the result of a need for additional information or of the limits of current medical knowledge having been exhausted.

Each of the above actions shall be documented fully in an examination report.  A copy of such report shall be placed in the claims file or "eFolder."

4.  Finally readjudicate the issues of the Veteran's entitlement to service connection for bilateral hearing loss.  If this benefit is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case (SSOC) and afforded the requisite time period to respond.  A copy of the SSOC shall be placed in the claims file or "eFolder."

The Veteran has the right to submit additional evidence and argument on the issue 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).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs