Citation Nr: 1304606	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-02 945	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an increased evaluation in excess of 20 percent for cervical spine arthritis, to include entitlement to an effective date prior to July 6, 2007, for the 20 percent evaluation award.

2.  Entitlement to an increased evaluation in excess of 20 percent for thorocolumbar spine arthritis, to include entitlement to an effective date prior to September 10, 2007, for the 20 percent evaluation award.

3.  Entitlement to an increased evaluation in excess of 10 percent for left ankle arthritis with pain on motion.

4.  Entitlement to an increased evaluation in excess of 10 percent for hypertension.

5.  Entitlement to a compensable evaluation for post-traumatic headaches.

6.  Entitlement to an increased evaluation in excess of 10 percent for seasonal allergic rhinitis with reactive airway disease.

7.  Entitlement to service connection for visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia).

8.  Entitlement to service connection for diabetes mellitus.

9.  Entitlement to service connection for hyperlipidemia.

10.  Entitlement to service connection for neck strain.

11.  Entitlement to service connection for joint pain.

12.  Entitlement to service connection for a thoracic spine disability.

13.  Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected seasonal allergic rhinitis with reactive airway disease.

14.  Whether new and material evidence was submitted to reopen a previously denied claim of entitlement to service connection for tuberculosis.

15.  Whether new and material evidence was submitted to reopen a previously denied claim of entitlement to service connection for a corneal abrasion of the right eye.

16.  Whether new and material evidence was submitted to reopen a previously denied claim of entitlement to service connection for carpal tunnel syndrome (CTS) of the left wrist.


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty from November 1975 to January 1996.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran specifically appeals an August 2008 rating decision which, inter alia, awarded an increased evaluation to 20 percent for cervical spine arthritis (effective July 6, 2007, by action of a May 2012 Decision Review Officer (DRO) decision rendered during the course of this appeal) and an increased evaluation to 20 percent for thoracolumbar spine arthritis (effective September 10, 2007).  The Veteran challenges the ratings and effective dates assigned to each.  

The August 2008 rating decision on appeal also denied the Veteran's claims for increased evaluations for his left ankle arthritis (rated 10 percent disabling), hypertension (rated 10 percent disabling), post-traumatic headaches (rated noncompensable), and seasonal allergic rhinitis with reactive airway disease (rated 10 percent disabling).

The Veteran also appeals the August 2008 rating decision's denial of his claims for service connection for visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia), diabetes mellitus, hyperlipidemia, neck strain, joint pain, and a thoracic spine disability.

The Veteran also appeals the August 2008 rating decision's determination that no new and material evidence was submitted to reopen his previously denied claims for service connection for tuberculosis, a corneal abrasion of his right eye, and CTS of his left wrist for a de novo review. 

Lastly, the Veteran also appeals a September 2011 RO rating decision that denied his claim for service connection for obstructive sleep apnea (to include as secondary to service-connected seasonal allergic rhinitis with reactive airway disease).  



For the reasons that will be discussed in the REMAND portion of the decision below, the issues of entitlement to an increased evaluations for cervical spine arthritis (to include entitlement to an effective date prior to July 6, 2007, for an increased rating award), thoracolumbar spine arthritis (to include entitlement to an effective date prior to September 10, 2007, for an increased rating award), left ankle arthritis, hypertension, and post-traumatic headaches are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  The Veteran and his representative will be notified by VA if any further action is required on their part.


FINDINGS OF FACT

1.  Seasonal allergic rhinitis with reactive airway disease is presently manifested by no more than partial nasal passage obstruction on either side and the complete absence of nasal polyps.

2.  The Veteran did not serve within the territorial confines of the Republic of Vietnam or in Southwest Asia during his period of active duty.

3.  The Veteran's current visual impairment is attributed to astigmatism, presbyopia, refractive error, and myopia, which are not diseases or disabilities within the meaning of applicable laws and regulations for which VA compensation may be awarded.

4.  Diabetes mellitus did not have its onset during active military service.

5.  The currently demonstrated hyperlipidemia is a laboratory finding and is not a disease or injury within the meaning of applicable legislation.

6.  A chronic neck strain as a separately diagnosable disability from the service-connected cervical spine arthritis did not have its onset during active military service.

7.  A disability manifested by chronic joint pain other than the service-connected left ankle arthritis and cervical and thoracolumbar spine arthritis did not have its onset during active military service.

8.  A thoracic spine disability as a separately diagnosable disability from the service-connected thoracolumbar spine arthritis did not have its onset during active military service.

9.  Obstructive sleep apnea did not have its onset during active military service and is not etiologically related to, or otherwise worsened beyond its natural clinical progression by, service-connected seasonal allergic rhinitis with reactive airway disease.

10.  The RO denied the Veteran's original claim of entitlement to service connection for tuberculosis in a final April 1996 rating decision. 

11.  The RO denied the Veteran's original claims of entitlement to service connection for a corneal abrasion of the right eye and CTS of the left wrist, and denied his application to reopen his claim for service connection for tuberculosis in a final May 2004 rating decision.  

12.  Evidence received since the May 2004 rating decision that denied the Veteran's claims of entitlement to service connection for a corneal abrasion of the right eye and CTS of the left wrist, and denied his application to reopen his claim for service connection for tuberculosis, is either duplicative of evidence previously submitted and considered on the merits or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate any of these claims.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation above 10 percent for seasonal allergic rhinitis with reactive airway disease have not been met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). 

2.  Service connection for visual impairment, to include astigmatism, presbyopia, refractive error, and myopia, is denied for lack of entitlement under the law.  38 C.F.R. § 3.303(c) (2012). 

3.  Diabetes mellitus was not incurred, nor is it presumed to have been incurred in active duty.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  

4.  The claim of service connection for hyperlipidemia is denied for lack of entitlement under the law.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(c) (2012).  

5.  A neck strain as a manifestation of a separately diagnosed disability from the service-connected cervical spine arthritis was not incurred in active duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

6.  Joint pain as a manifestation of a separately diagnosed disability from the service-connected left ankle arthritis and cervical and thoracolumbar spine arthritis was not incurred in active duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).

7.  A thoracic spine disability representing a separately diagnosed disability from the service-connected thoracolumbar spine arthritis was not incurred in active duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012)..

8.  Obstructive sleep apnea was not incurred in active duty and is not proximately due to, or aggravated by service-connected seasonal allergic rhinitis with reactive airway disease.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310(a), (b) (2012).    

9.  The criteria for reopening the claim of entitlement to service connection for tuberculosis have not been met, and the claim is not reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).

10.  The criteria for reopening the claim of entitlement to service connection for a corneal abrasion of the right eye have not been met, and the claim is not reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).

11.  The criteria for reopening the claim of entitlement to service connection for CTS of the left wrist have not been met, and the claim is not reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

(a.) Preliminary matters: allegations of clear and unmistakable error (CUE).

The Board notes that the Veteran is presently unrepresented in the current appeal.  A review of his written correspondence submitted in support of his appeal includes assertions of "clear and unmistakable error" on the part of all prior and current VA rating decisions for not granting the full benefit sought by the Veteran.  Firstly, to the extent that the Veteran asserts that the August 2008 and September 2011 rating decisions on appeal involved CUE, as these rating decisions are in appellate status they are not final and therefore it is procedurally inappropriate to raise a collateral attack on their determinations through an assertion of CUE at the present time.  See 38 C.F.R. § 3.105 (2012).

VA law, regulations, and the caselaw of the United States Court of Appeals for Veterans Claims (Court) define what constitutes CUE and what does not, and they provide in pertinent part: 

In Damrel v. Brown, 6 Vet. App. 242 (1994) the Court synthesized the case law on the proper test to determine if there is CUE, as previously set forth in Russell v. Principi, 3 Vet. App. 310, 313-314 (1992).  In Damrel the Court held that for there to be CUE "(1) '[e]ither the correct facts, as they were known at the time, were not known before the adjudicator (i.e., more than a simple agreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,' (2) the error must be 'undebatable' and of the sort 'which had it not been made, would have manifestly changed the outcome at the time it was made,' and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question."  Damrel, at 245.

Moreover, in view of the standard that error must be undebatable and about which reasonable minds cannot differ, the "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) can never be applicable in a claim of CUE.  CUE either exists undebatably or there is no CUE within the meaning of 38 C.F.R. § 3.105(a).  Russell v. Principi, 3 Vet. App. 310, 314 (1992).

"CUE is a very specific and rare kind of 'error.'  It is the kind of error, of fact or of law, that when called to the attention of later reviewers it compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error."  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  "To warrant review by the Board, a claim of [CUE] must be raised with specificity regarding when and how [CUE] occurred."  McIntosh v. Brown, 4 Vet. App. 553, 561 (1993).  "[S]imply to claim CUE on the basis that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE."  Fugo, at 44.  "It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger."  Fugo, at 44.

The Board notes that the Court has consistently stressed the rigorous nature of the concept of CUE. "[CUE] is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts."  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "[CUE] requires that error, otherwise prejudicial, . . . must appear undebatably."  Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).  

From a reading of the Veteran's assertions, his general contention is that the prior final rating decisions of April 1996 (which, inter alia, granted service connection and assigned initial ratings for left ankle arthritis, cervical and thoracolumbar spine arthritis, hypertension, post-traumatic headaches, and seasonal allergic rhinitis with secondary reactive airway disease) and May 2004 (which, inter alia, denied service connection for tuberculosis, a corneal abrasion of the right eye, and CTS of the left wrist), failed to adequately consider the evidence of record when rendering its determinations.  This, in essence, is a claim that the VA improper weighted or evaluated the evidence.  See Fugo.  "[S]imply to claim CUE on the basis that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE."  Fugo, at 44.  The Board finds that this broad and nebulous assertion simply fails to meet the standard for a viable claim of CUE under the aforementioned criteria.  As such, no further discussion of the Veteran's contentions of CUE is required and the matter does not warrant referral to the agency of original jurisdiction for consideration of a CUE claim in the first instance.  See Bernard v. Brown, 4 Vet. App. 384 (1993).      

(b.)  The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist.

With respect to only to those claims on appeal that will be adjudicated on the merits below, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  

All but one of the current claims for service connection and all the increased rating claims and the applications to reopen previously denied claims on the basis of new and material evidence, were filed with VA in September 2007.  A VCAA notice letter addressing these issues was dispatched to the Veteran in February 2008, prior to the August 2008 rating decision now on appeal.  In May 2011, the Veteran filed a claim for service connection for sleep apnea.  A pair of VCAA notice letters addressing this specific issue were dispatched to the Veteran in May and June 2011, prior to the September 2011 rating decision now on appeal.  These aforementioned letters respectively addressed the service connection, increased rating, and new and material issues on appeal and satisfied the above-described mandates, as well as the requirement that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006), and the requirement that the claimant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior final denial, as prescribed in Kent v. Nicholson, 20 Vet. App. 1 (2006).  Furthermore, no timing of notice error exists as fully compliant notice preceded the initial adjudication of each claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
  
VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claims.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining records and supportive evidence.  As the rating issue adjudicated below stems from September 2007, when the Veteran filed his claim for an increased rating for his seasonal allergic rhinitis with secondary reactive airway disease, the relevant time period and evidence that must be addressed in the adjudication of the increased rating claim encompasses the period from September 2006 to the present, in order to allow the Board to consider the applicability of a staged rating.  See 38 C.F.R. § 3.400(o)(2) (2012); Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this regard, the Board observes that private, military service hospital, and VA clinical records that pertain to the Veteran's examinations and treatment for rhinitis and allergies for the period spanning 2006 to 2011 have been obtained and associated with the claims file.  Additionally, his service treatment records and relevant post-service medical records from VA and non-VA sources for the period from 1996 to 2011 are associated with the evidence and are sufficient to adjudicate the service connection and new and material evidence issues addressed below.  The Board concludes that VA has reasonably discharged its duty to assist the Veteran in the development of the relevant evidence and that no further remand for corrective development is required with respect only to those matters adjudicated on the merits in this decision.

The Board has reviewed the aforementioned examination reports and notes that the Veteran's claims file was reviewed by the VA clinicians who performed the February 2008 general medical examination and the July 2011 respiratory disease examination.  The examiners who conducted these evaluations provided adequate discussion of their clinical observations and rationales to support their individual findings and conclusions within the context of the Veteran's clinical history as contained within his claims file.  The latest examination of July 2011 adequately addresses the severity of the Veteran's service-connected rhinitis and its findings, and when considered in conjunction with those of the earlier VA examination of February 2008, renders both examinations adequate for rating purposes.  Furthermore, the July 2011 VA respiratory examination provides a detailed nexus opinion, supported by a medical rationale, addressing the relationship of the Veteran's obstructive sleep apnea to his period of active duty and his service-connected allergic rhinitis and reactive airway disease.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Although there are adequate clinical findings presented in the medical evidence of record, including in the orthopedic portion of the February 2008 VA examination report, for the Board to adjudicate the Veteran's claims for service connection for neck strain, joint pain, and a thoracic spine disability, the Board notes that the Veteran was not provided with a VA examination addressing his claim for service connection for diabetes mellitus.  However, this deficit does not render the existing record unusable for purposes of adjudicating this claim on the merits.  The Board is mindful of the test prescribed by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), regarding whether a medical examination is necessary to adjudicate a claim, and finds that the absence of an examination addressing the issue of VA compensation for diabetes mellitus is not prejudicial to the Veteran's claim as he has not met the criteria under McLendon to warrant such an examination and, furthermore, the service and post-service VA, service hospital, and private medical records presently associated with the claims file provide sufficient evidence to decide this claim and so a VA examination is therefore not necessary to adjudicate the matter.  

Specifically, the Board finds that the Veteran has not met all four elements set forth in McLendon, which emphasize that a VA examination must be provided when there is: (1) competent evidence of current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) insufficient competent medical evidence to decide the claim.  As will be further discussed below, the Board has determined that either the credible evidence does not establish an in-service event, injury, or disease relating his current diabetes mellitus diagnosis to his period of active service.  Thus, the second and third elements of the McLendon test have not been met.  Therefore, the absence of a clinical examination addressing the diabetes mellitus claim does not constitute a breach of VA's duty to assist.  Furthermore, the Board concludes as a factual matter that the existing clinical evidence of record is sufficient to decide the claim, such that remanding the case for an examination to address this matter would be an unnecessary expenditure of VA resources.

Regarding the claims for service connection for visual impairment and hyperlipidemia, as will be discussed in the analysis below, these claims will be denied due to lack of legal merit under the law.  The provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

The Veteran has otherwise not indicated that there was any further evidence to submit in support of the claims adjudicated on the merits herein.  The Veteran having been provided with adequate opportunity to submit or otherwise identify relevant evidence in support of these specific claims, the Board finds that the record does not need to be held open any longer, and that no further delay in the adjudication of these specific claims is warranted.  

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his claims for an increased rating for allergic rhinitis with reactive airway disease, service connection for visual impairment, diabetes mellitus, hyperlipidemia, neck strain, joint pain, a thoracic spine disability, and obstructive sleep apnea, and new and material evidence to reopen previously denied claims for service connection for tuberculosis, a corneal abrasion of the right eye, and CTS of the left wrist, and thus no additional assistance or notification is required.  The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of the appeal of the aforementioned issues.

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

(b.)  Entitlement to an increased evaluation in excess of 10 percent for seasonal allergic rhinitis with secondary reactive airway disease.

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (2012).  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § 4.10 (2012).

The Veteran's service-connected seasonal allergic rhinitis with secondary reactive airway disease is currently evaluated as 10 percent disabling.  This disability is rated under the criteria contained in 38 C.F.R. § 4.97, Diagnostic Code 6522, as allergic or vasomotor rhinitis, which provides for the assignment of a 10 percent evaluation for rhinitis without nasal polyps, manifested by greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.  Assignment of a 30 percent evaluation is warranted for rhinitis with nasal polyps present.

VA and non-VA medical evidence pertinent to the period from September 2006 to the present show that examination of the Veteran's nose and turbinates in February 2008 revealed no nasal obstruction, no deviated septum, no loss of internal nasal tissues or structures, no nasal polyps, no scars, and no disfigurement.  Rhinitis was noted to be present and was deemed to be allergic in origin due to the presence of pale nasal mucosa.  No sinusitis was detected.  No nasal obstruction or polyps were noted during the course of a private sleep study conducted in February 2010.  VA physical and X-ray examination of his nose and turbinates in July 2011 revealed no sign of nasal obstruction, no polyps, no septal deviation, no hypertrophy of the turbinates due to bacterial rhinitis, no rhinoscleroma, and no tissue loss or nasal scarring.  In fact, the examining clinician determined that the Veteran was a good candidate for a nasal prong inhalation device for his continuous positive airway pressure (CPAP) machine to treat obstructive sleep apnea due to the absence of nasal blockage.

The Board has considered the evidence discussed above and finds that the Veteran's service-connected seasonal allergic rhinitis with secondary reactive airway disease is not currently manifested by total blockage of either airway, much less by nasal polyps.  Furthermore, nasal polyps were not manifest at any time during the relevant rating period, such that his seasonal allergic rhinitis with secondary reactive airway disease met the criteria for an evaluation above 10 percent during the pendency of the claim.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an increase rating above 10 percent for seasonal allergic rhinitis with secondary reactive airway disease must be denied.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Finally, the Board finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected seasonal allergic rhinitis with secondary reactive airway disease, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards.  The evidence establishes that the Veteran's service-connected sinus disability does not produce a greater impact on his occupational capacity that renders impractical the criteria contemplated by the applicable rating schedule as contained in 38 C.F.R. § 4.97, Diagnostic Code 6522.  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.  

With regard to the Veteran's service-connected seasonal allergic rhinitis with secondary reactive airway disease, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned evaluation for seasonal allergic rhinitis with secondary reactive airway disease, pursuant to the appropriate Diagnostic Code detailed above, contemplate his levels of symptomatology.  Specifically, the criteria account for all nasal airway blockage and impairment due to internal polyps.  The Veteran's current impairment due to this sinus disability are adequately contemplated by the rating schedule.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.  

In short, the evidence does not support the proposition that the Veteran's service-connected seasonal allergic rhinitis with secondary reactive airway disease presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).  Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.  

(c.)  Entitlement to service connection for visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia), diabetes mellitus, hyperlipidemia, neck strain, joint pain, a thoracic spine disability, and obstructive sleep apnea (to include as secondary to service-connected seasonal allergic rhinitis with reactive airway disease).

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2012).

To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any documentation of elevated cholesterol, the presence of sugar in urine, eye treatment, complaints of joint pain and back and neck pain, or complaints of snoring during active duty will permit service connection for a chronic disability manifested by or pertinent to such symptoms, first shown as a clear-cut clinical entity, at some later date.  For the showing of 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 disease identity is established, there is no requirement of evidentiary showing of continuity.  

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  Service connection may also be granted for disability which is proximately due to, or the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a), (b) (2012).  

Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as diabetes mellitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (2012).  Service connection for diabetes mellitus may be established based on a legal "presumption" by showing that this chronic disease of the endocrine system manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307, 3.309(a).

The Board notes at this juncture that the Veteran's service records establish that he did not serve in combat, is not a Vietnam War Era veteran, and did not serve in Southwest Asia at any time during his long period of active duty.  Therefore, he is not entitled to any of the regulatory presumptions afforded by 38 C.F.R. §§ 3.304(d), 3.307(a)(6), 3.309(e), and 3.317 (2012), regarding undocumented treatment for injuries and diseases in combat conditions, presumed exposure to chemical herbicides in Vietnam service, diseases presumed to be due to chemical herbicide exposure in Vietnam, and undiagnosed illness for veterans of Southwest Asia service.

Entitlement to service connection for visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia):

The Veteran's service medical records show normal visual acuity on enlistment examination in October 1975 and throughout the entirety of his period of active duty.  All vision examinations conducted throughout service show normal 20/20 uncorrected vision, bilaterally, and that the Veteran was never prescribed corrective lenses to treat any refractive errors.  On separation examination in November 1995, his eyes were normal and he denied having any history of visual impairment or the need for corrective lenses.  Post-service records also show normal eyes on VA medical examination in March 1996.

Several years later, Army service hospital records show that the veteran was prescribed corrective lenses in 2002.  In December 2003, he was diagnosed with bilateral pterygium (benign, thin, wing-like growths on the conjunctival tissues of the eye).  His optometric diagnoses as of 2002 included astigmatism, refractive error (myopia), and presbyopia.

The Board has considered the evidence discussed above and finds no basis to award service connection for the Veteran's visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia).  No visual impairment of any sort was clinically noted in his service medical records for the entirety of his period of active duty and the Veteran himself has denied having any such conditions in medical history reports that are contemporaneous with service.  Furthermore, the optometric diagnoses that warranted the prescription of corrective lenses were not clinically established any earlier than 2002, over five years after the Veteran's separation from service.  The clinical evidence also contains no nexus opinion that objectively links these optometric diagnoses to service.  The Veteran, who is not shown to be a trained medical professional, is not competent to state that his current visual impairment is related to service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  To the extent that he now reports having onset of blurred vision in service for purposes of establishing a nexus and continuity of visual symptoms with military service, the Board finds that such statements are not credible as they are contradicted by the contemporaneous documented medical history presented by the Veteran during service and at the time of his separation from service.  In any case, refractive errors of the eye are conditions that are specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits.  38 C.F.R. § 3.303(c) (2012).  Thusly, any claim for service connection for refractive errors of the eye would fail for the absence of legal merit and lack of entitlement under the law.  The relevant facts are not in dispute.  It is the law, not the evidence, which is dispositive of the claim for service connection for refractive errors of the eye.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  The claim of entitlement to service connection for visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia) must therefore be denied.

Entitlement to service connection for diabetes mellitus:

The Veteran's service medical records are completely void of any presentation of a diabetes mellitus diagnosis during active duty, or laboratory test results demonstrating the presence of sugar in his urine during multiple urinalysis studies conducted during the course of his military service, including on separation examination in November 1995.

The Veteran's post-service medical records show no diagnosis of diabetes mellitus on VA examination in March 1996, and the earliest indication of diagnosis and treatment for this chronic disease of the endocrine system is in Army hospital treatment records dated in 2002.  Current treatment records show that the Veteran has been prescribed medication and dietary restrictions to help control his diabetes mellitus, but otherwise do not present an objective opinion associating this disease with service.

In view of the foregoing evidence, the Board finds that there is no objective clinical basis to award the Veteran service connection for diabetes mellitus.  The clinical evidence shows that diabetes mellitus did not have its onset during active duty, nor was it manifest to a compensable degree within one year following his separation from service in January 1996, such that service connection on a direct or presumptive basis could be granted.  To the extent that the Veteran asserts on his own authority, based on his personal knowledge of his own medical history, that his diabetes mellitus is related to service, as he is not shown to be a trained medical professional, he is not competent to present a nexus opinion of any probative value associating his diabetes to service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Furthermore, the period of over five years between separation from service and the earliest documented diagnosis of diabetes mellitus, with no documentation of treatment for diabetes in-between, tends to weigh against a finding that the claimant's diabetes had its onset in service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  

In view of the foregoing discussion, the Board finds that the evidence is against the Veteran's diabetes claim.  Service connection for diabetes mellitus is therefore denied.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 201); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to service connection for hyperlipidemia:

The Veteran's service medical records show that elevated serum cholesterol levels on blood tests conducted during the last few months of active duty in August and October 1995, although no clinical finding of hyperlipidemia was presented in the service medical records and the Veteran was deemed to be serologically within normal limits on separation examination in November 1995.

Post-service medical records again show elevated serum cholesterol on a blood test conducted by VA in March 1996.  However, hyperlipidemia as a clinical finding was not objectively established until 2007, as reflected in Army hospital treatment records.  Current treatment records do not present an objective opinion associating the Veteran's hyperlipidemia with his military service.

After considering the foregoing evidence, the Board concludes that there is no objective clinical basis to grant the Veteran's claim for service connection for hyperlipidemia.  Notwithstanding laboratory findings indicating elevated cholesterol on blood tests conducted during the latter part of the Veteran's service, his serology was deemed to be within normal limits on separation from active duty, and an actual clinical finding of hyperlipidemia is not thereafter demonstrated until 2007, over a decade after his discharge from service.  In any case, hyperlipidemia (and, for that matter, elevated cholesterol) are considered to be laboratory results and not disabilities for VA compensation purposes.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996).  Accordingly, by law, the claim of service connection for hyperlipidemia must be denied for lack of entitlement under the law as this condition is specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits.  38 C.F.R. § 3.303(c) (2012).  The relevant facts are not in dispute.  It is the law, not the evidence, which is dispositive of the claim for service connection for hyperlipidemia.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  
   
Entitlement to service connection for joint pain, neck strain, and a thoracic spine disability:

The Board notes that the Veteran is presently service connected for left ankle arthritis (currently rated 10 percent disabling) and arthritis of the cervical and thoracolumbar spine (the cervical spine currently rated 20 percent disabling and the thoracolumbar spine also rated 20 percent disabling).  A review of his service medical records do not indicate onset of, or treatment for chronic musculoskeletal complaints relating to any group of joints other than his left ankle, neck, and mid- and lower back.  Otherwise, on a medical history questionnaire accompanying his service separation examination in November 1995, the Veteran expressly denied having any joint pain.

The Board has considered the Veteran's contentions and observes that he is essentially claiming entitlement to service connection for individual symptoms associated with his service-connected left ankle arthritis and arthritis of the cervical and thoracolumbar spine.  This is known as "pyramiding," and is to be expressly avoided under 38 C.F.R. § 4.14 (2012).  Specifically, this governing regulation holds that the evaluation of the same disability under various diagnoses is to be avoided.  Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, and so the evaluation of the same manifestation under different diagnoses is to be avoided.

The pertinent clinical evidence does not demonstrate the presence of a chronic neck strain that represents a separately diagnosable disability from the service-connected cervical spine arthritis; does not demonstrate the presence of chronic joint pain other than the service-connected left ankle arthritis and cervical and thoracolumbar spine arthritis; and does not demonstrate the presence of a chronic thoracic spine disability as a separately diagnosable disability from the service-connected thoracolumbar spine arthritis.  The Veteran is basically claiming entitlement to service connection for manifestations of orthopedic disabilities for which he is already in receipt of VA compensation.  In view of the regulation proscribing such claims on the grounds that they would result in pyramiding, the Veteran's claims of entitlement to service connection for joint pain, neck strain, and a thoracic spine disability must be denied.

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected seasonal allergic rhinitis with reactive airway disease:

The Veteran's service medical records show no documentation of treatment for complaints of snoring or diagnosis of obstructive sleep apnea for the entirety of his period of active duty.  Although the Veteran reported having problems with sleeping on his medical history questionnaire on separation examination in November 1995, he clarified that this was associated with neck pain symptoms in April and that he was doing better at the time of the separation examination.

Post-service medical records establish that the earliest diagnosis of obstructive sleep apnea and hypopnea syndrome was presented in the report of a February 2010 private sleep lab study.  The Veteran filed his claim for VA compensation for obstructive sleep apnea in May 2011, contending that this disability is secondary to his service-connected seasonal allergic rhinitis with reactive airway disease.  Pursuant to his claim, he was provided with a VA respiratory examination in July 2011.  The physician who conducted the examination reviewed the Veteran's pertinent clinical history and concurred with the diagnosis of chronic obstructive sleep apnea.  Based on his examination and historical review, the VA physician presented the following nexus opinion:

[The Veteran's obstructive sleep apnea] IS LESS LIKELY AS NOT (LESS THAN 50/50 PROBABILITY) CAUSED BY OR A RESULT OF service connected allergic rhinitis.

RATIONALE FOR OPINION GIVEN: According to service treatment records and historical information provided by the veteran, his obstructive sleep apnea predated his allergic rhinitis symptoms.  Although nasal congestion from any cause is a risk factor for obstructive sleep apnea, he has continuous problems with obstructive sleep apnea and only seasonal symptoms of allergic rhinitis.

There was no obstruction of his nasal passages on physical exam nor nasal obstruction from allergic rhinitis (i.e., polyps, turbinate hypertrophy) on sinus X-rays.   

Due to the following findings:

1. onset of obstructive sleep apnea symptoms prior to allergic rhinitis

2. the constancy of [obstructive sleep apnea] in contrast to only seasonal rhinitis

3. the lack of any nasal obstruction on physical exam or x-rays from allergic rhinitis 

it is unlikely that his allergic rhinitis resulted in obstructive sleep apnea.  There is no evidence by the veteran's history, current medical evaluation or record review that his obstructive sleep apnea was aggravated by allergic rhinitis.

[Citation to medical authority omitted.]

The Board has considered the evidence discussed above.  Firstly, we observe that the VA examiner who presented the July 2011 opinion has apparently found the Veteran's stated history of onset of obstructive sleep apnea prior to onset of his allergic rhinitis to be credible, and thusly concluded that the sleep apnea predated allergic rhinitis.  As a factual matter, the Board rejects the validity of this clinical conclusion because it is not supported by the objective documented medical history, which clearly shows onset and treatment for allergic rhinitis in service, but absolutely no mention of obstructive sleep apnea or documentation of snoring on part of the Veteran at any time in service.  To the extent that the July 2011 VA physician bases his conclusion that the Veteran's obstructive sleep apnea predated his allergic rhinitis in service (and, by inference, that the obstructive sleep apnea had its onset during service) based on the Veteran's own self-reported historical account, the Board finds the claimant's account to be non-credible as it is contradicted by the contemporaneous service medical record, which indicates no snoring issues or disturbed sleep due to apnea.  We therefore find that the documentation contained in the service medical records, which show onset of allergic rhinitis but no onset of obstructive sleep apnea in service, outweighs the VA clinician's July 2011 opinion that the Veteran's obstructive sleep apnea somehow predated his allergic rhinitis, per the Veteran's personal historical account.

Nevertheless, notwithstanding the Board's rejection of part of the July 2011 clinician's opinion, we find the remainder of the opinion to be both factually valid and probative evidence that the Veteran's service-connected allergic rhinitis and reactive airway disease is not the etiological cause of his obstructive sleep apnea or that it aggravated his sleep apnea (i.e., permanently worsened it beyond its natural clinical progression).  The opining physician's rationale in this regard is that the manifestations of Veteran's allergic rhinitis are varying in nature and governed by such external factors as the changing seasons, whereas his obstructive sleep apnea remains consistent in its symptoms and severity, independent of the seasonally variable intensity of the allergic rhinitis.  The examiner found clinical significance in the fact that the Veteran's obstructive sleep apnea was actively present despite the absence of significant obstruction of his nasal airways from polyps and turbinate hypertrophy associated with allergic rhinitis, indicating that the two syndromes operated independently of the other and thus further indicating that they were causally unrelated and had no aggravatory impact upon each other.

To the extent that the Veteran asserts on his own authority, based on his personal knowledge of his own medical history, that his obstructive sleep apnea is related to his period of service, or is otherwise secondary to his service-connected allergic rhinitis with reactive airway disease, as he is not shown to be a trained medical professional, he is not competent to present a nexus opinion of any probative value associating this sleep apnea with his period of active duty.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As previously stated, the Board finds the Veteran's account of having experienced onset of chronic snoring and sleep apnea-related symptoms in service to be non-credible and as such, his statements do not establish onset of sleep apnea in service or continuity of sleep apnea symptomatology since service for purposes of establishing a nexus.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
  
In view of the foregoing assessment of the medical evidence and discussion, the Board concludes that the Veteran's chronic obstructive sleep apnea did not have its onset during service and is not secondary to, or otherwise aggravated by his service connected allergic rhinitis with reactive airway disease.  Thusly, there is no clinically established nexus that objectively links the chronic obstructive sleep apnea with active duty, and the claim for service connection in this regard must be denied.  Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).     

(d.)  Whether new and material evidence was submitted to reopen previously denied claims of entitlement to service connection for tuberculosis, a corneal abrasion of the right eye, and CTS of the left wrist.

In general, unappealed rating decisions of the RO and the Board are final.  See 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002 & Supp. 2012).  In order to reopen a claim there must be added to the record "new and material evidence."  See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012).  New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156 (2012).  

The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).

38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  See 38 C.F.R. § 3.156(a) (2012).  The credibility of the evidence is presumed for the purpose of reopening.  See Justus v. Principi, 3 Vet. App. 510 (1992).  In this regard, the Board is mindful that weighing the probative value and assessing the credibility of evidence is appropriate only if the Board first finds that such evidence is new and material to a service connection claim and reopens the claim for a de novo review on the merits.

By history, the Veteran's original claim for service connection for tuberculosis (TB) was filed with VA in February 1996.  His claim was denied on the merits in an April 1996 rating decision.  Evidence considered by the RO in conjunction with the April 1996 decision included his service medical records, which show that he tested positive on skin test for exposure to tuberculosis bacterium in 1991, following deployment to Korea, and was classified as a "TB converter," meaning that he developed an immune response to his TB exposure but did not develop active tuberculosis disease nor was he deemed to be contagious for this disease.  Subsequent in-service chest X-rays and tests for lung disease, conducted in June 1992, May 1994, and on separation examination in November 1995, were negative for tuberculosis.  Post-service VA examination in March 1996 also showed negative findings for tuberculosis on chest X-ray and clinical testing.  Also considered was the Veteran's essential contention that he was exposed to tuberculosis in service and that therefore he is entitled to VA compensation for this disease.  Based on the absence of a diagnosis of active tuberculosis disease, the RO denied the Veteran's claim for service connection for tuberculosis in an April 1996 rating decision.  (Incidentally, the April 1996 rating decision also granted service connection for seasonal allergic rhinitis with secondary reactive airway disease, which are medically unrelated to tuberculosis.)  Notice of this adverse determination and his appellate rights were furnished in correspondence dated April 1996, but he did not file a timely appeal and it became final.  

In December 2003, the Veteran filed his original claim for service connection for a right corneal abrasion and CTS of the left wrist, and also submitted an application to reopen his claim for service connection for tuberculosis.  These claims were denied on the merits in a May 2004 rating decision.  Evidence considered by the RO in conjunction with these claims included the Veteran's service medical records, which show in pertinent part that in April 1986 he was treated for a corneal abrasion of his right eye.  Examination revealed no retained foreign bodies in his right eye or cornea and subsequent follow-up treatments in April 1986 show that the corneal abrasion fully healed and was resolved.  No subsequent findings of a right corneal abnormality or residual impairment resulting from the April 1986 right corneal abrasion were clinically demonstrated on eye examinations conducted during the remainder of his military service, including on separation examination in November 1995.  Post-service records show that his eyes were normal on physical examination of their corneal structures during VA examination in March 1996.  Army service hospital treatment records show that he was diagnosed with bilateral pterygium (a benign growth over the conjunctival tissues of the eye) in December 2003.  Also considered was the Veteran's essential contention that he was treated for a right corneal abrasion in service and that therefore he is entitled to VA compensation for this injury.  

With regard to the left wrist CTS claim, the Veteran's service medical records show that in June 1982, he presented with complaints of left wrist pain and was examined to rule out CTS.  A June 1982 medical imaging study determined that his left wrist was normal and CTS was thusly ruled out.  No subsequent treatment for left wrist symptoms was shown thereafter for the remainder of active duty.  Clinical evaluation of his upper extremities shows normal findings in October 1995 and on service separation examination in November 1995.  Post-service VA examination in March 1996 shows no report of left wrist symptoms and no diagnosis of left wrist CTS or other disabling musculoskeletal condition affecting this joint.  Also considered was the Veteran's essential contention that he was treated for left wrist pain in service and was tested to rule out CTS, and that therefore he is entitled to VA compensation for this condition.  

No active tuberculosis is shown on examination of the Veteran's lungs and respiratory system in various medical reports dated after the April 1996 rating decision denying VA compensation for tuberculosis.  The Veteran reiterated his basic contention that because he was exposed to tuberculosis in service, he is entitled to VA compensation for this disease.  

Based on the absence of any objective clinical evidence of a current right corneal abnormality, a current diagnosis of CTS or other disabling musculoskeletal condition of the left wrist, and active tuberculosis disease, the RO denied the Veteran's claims for service connection for a right corneal abrasion and CTS of the left wrist, and denied his application to reopen his claim for service connection for tuberculosis in a May 2004 rating decision.  Notice of this adverse determination and his appellate rights were furnished in correspondence dated June 2004, but he did not file a timely appeal and it became final.

In September 2007, the Veteran applied to reopen his previously denied claims for service connection for a right corneal abrasion, CTS of the left wrist, and tuberculosis.  Pertinent evidence submitted in support of his application to reopen these claims consisted of Army service hospital treatment records dated 2007, the report of a February 2008 VA medical examination, a private sleep study conducted in February 2010, and a July 2011 VA respiratory examination report.  As relevant, these clinical records show no current pertinent diagnoses of, or objective findings relating to a right corneal abrasion, CTS of the left wrist, or active tuberculosis.  The Veteran also reiterated his basic contention that because these three conditions were mentioned in his service medical records, he is entitled to VA compensation for them.  

The Board has considered the aforementioned medical evidence submitted since the prior final rating decision of May 2004, but finds that although they are new in the sense that they were not previously considered by VA decisionmakers in conjunction with the denied claims at issues, they are not new and material in that they do not present any objective evidence establishing the clinical existence of the claimed disabilities at the current time.  As such, they do not relate to an unestablished fact necessary to substantiate any of these claims.  Otherwise, the Veteran's basic contentions are merely resubmissions of his same prior contentions, and in the absence of any actual objective clinical evidence or nexus opinions to substantiate them, such that they may relate to an unestablished fact necessary to substantiate his claims, they are merely cumulative and redundant of his previously considered assertions and are therefore not new and material to his previously denied claims.  The evidence submitted since the prior final rating decision of May 2004 does not raise a reasonable possibility of substantiating the claims at issue, and therefore does not constitute evidence that is new and material for purposes of reopening the Veteran's claims.  See 38 C.F.R. § 3.156 (2012).

In view of the foregoing discussion, the Board concludes that the evidence submitted since May 2004 is not new and material and the petition to reopen the Veteran's claims for service connection for a right corneal abrasion, CTS of the left wrist, and tuberculosis for a de novo review on the merits is denied.  See 38 C.F.R. § 3.156(a) (2012).

(d.)  Whether new and material evidence was submitted to reopen previously denied claims of entitlement to service connection for tuberculosis, a corneal abrasion of the right eye, and CTS of the left wrist.

In general, unappealed rating decisions of the RO and the Board are final.  See 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002 & Supp. 2012).  In order to reopen a claim there must be added to the record "new and material evidence."  See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012).  New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156 (2012).  

The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).

38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  See 38 C.F.R. § 3.156(a) (2012).  The credibility of the evidence is presumed for the purpose of reopening.  See Justus v. Principi, 3 Vet. App. 510 (1992).  In this regard, the Board is mindful that weighing the probative value and assessing the credibility of evidence is appropriate only if the Board first finds that such evidence is new and material to a service connection claim and reopens the claim for a de novo review on the merits.

By history, the Veteran's original claim for service connection for tuberculosis (TB) was filed with VA in February 1996.  His claim was denied on the merits in an April 1996 rating decision.  Evidence considered by the RO in conjunction with the April 1996 decision included his service medical records, which show that he tested positive on skin test for exposure to tuberculosis bacterium in 1991, following deployment to Korea, and was classified as a "TB converter," meaning that he developed an immune response to his TB exposure but did not develop active tuberculosis disease nor was he deemed to be contagious for this disease.  Subsequent in-service chest X-rays and tests for lung disease, conducted in June 1992, May 1994, and on separation examination in November 1995, were negative for tuberculosis.  Post-service VA examination in March 1996 also showed negative findings for tuberculosis on chest X-ray and clinical testing.  Also considered was the Veteran's essential contention that he was exposed to tuberculosis in service and that therefore he is entitled to VA compensation for this disease.  Based on the absence of a diagnosis of active tuberculosis disease, the RO denied the Veteran's claim for service connection for tuberculosis in an April 1996 rating decision.  (Incidentally, the April 1996 rating decision also granted service connection for seasonal allergic rhinitis with secondary reactive airway disease, which are medically unrelated to tuberculosis.)  Notice of this adverse determination and his appellate rights were furnished in correspondence dated April 1996, but he did not file a timely appeal and it became final.  

In December 2003, the Veteran filed his original claim for service connection for a right corneal abrasion and CTS of the left wrist, and also submitted an application to reopen his claim for service connection for tuberculosis.  These claims were denied on the merits in a May 2004 rating decision.  Evidence considered by the RO in conjunction with these claims included the Veteran's service medical records, which show in pertinent part that in April 1986 he was treated for a corneal abrasion of his right eye.  Examination revealed no retained foreign bodies in his right eye or cornea and subsequent follow-up treatments in April 1986 show that the corneal abrasion fully healed and was resolved.  No subsequent findings of a right corneal abnormality or residual impairment resulting from the April 1986 right corneal abrasion were clinically demonstrated on eye examinations conducted during the remainder of his military service, including on separation examination in November 1995.  Post-service records show that his eyes were normal on physical examination of their corneal structures during VA examination in March 1996.  Army service hospital treatment records show that he was diagnosed with bilateral pterygium (a benign growth over the conjunctival tissues of the eye) in December 2003.  Also considered was the Veteran's essential contention that he was treated for a right corneal abrasion in service and that therefore he is entitled to VA compensation for this injury.  

With regard to the left wrist CTS claim, the Veteran's service medical records show that in June 1982, he presented with complaints of left wrist pain and was examined to rule out CTS.  A June 1982 medical imaging study determined that his left wrist was normal and CTS was thusly ruled out.  No subsequent treatment for left wrist symptoms was shown thereafter for the remainder of active duty.  Clinical evaluation of his upper extremities shows normal findings in October 1995 and on service separation examination in November 1995.  Post-service VA examination in March 1996 shows no report of left wrist symptoms and no diagnosis of left wrist CTS or other disabling musculoskeletal condition affecting this joint.  Also considered was the Veteran's essential contention that he was treated for left wrist pain in service and was tested to rule out CTS, and that therefore he is entitled to VA compensation for this condition.  

No active tuberculosis is shown on examination of the Veteran's lungs and respiratory system in various medical reports dated after the April 1996 rating decision denying VA compensation for tuberculosis.  The Veteran reiterated his basic contention that because he was exposed to tuberculosis in service, he is entitled to VA compensation for this disease.  

Based on the absence of any objective clinical evidence of a current right corneal abnormality, a current diagnosis of CTS or other disabling musculoskeletal condition of the left wrist, and active tuberculosis disease, the RO denied the Veteran's claims for service connection for a right corneal abrasion and CTS of the left wrist, and denied his application to reopen his claim for service connection for tuberculosis in a May 2004 rating decision.  Notice of this adverse determination and his appellate rights were furnished in correspondence dated June 2004, but he did not file a timely appeal and it became final.

In September 2007, the Veteran applied to reopen his previously denied claims for service connection for a right corneal abrasion, CTS of the left wrist, and tuberculosis.  Pertinent evidence submitted in support of his application to reopen these claims consisted of Army service hospital treatment records dated 2007, the report of a February 2008 VA medical examination, a private sleep study conducted in February 2010, and a July 2011 VA respiratory examination report.  As relevant, these clinical records show no current pertinent diagnoses of, or objective findings relating to a right corneal abrasion, CTS of the left wrist, or active tuberculosis.  The Veteran also reiterated his basic contention that because these three conditions were mentioned in his service medical records, he is entitled to VA compensation for them.  

The Board has considered the aforementioned medical evidence submitted since the prior final rating decision of May 2004, but finds that although they are new in the sense that they were not previously considered by VA decisionmakers in conjunction with the denied claims at issues, they are not new and material in that they do not present any objective evidence establishing the clinical existence of the claimed disabilities at the current time.  As such, they do not relate to an unestablished fact necessary to substantiate any of these claims.  Otherwise, the Veteran's basic contentions are merely resubmissions of his same prior contentions, and in the absence of any actual objective clinical evidence or nexus opinions to substantiate them, such that they may relate to an unestablished fact necessary to substantiate his claims, they are merely cumulative and redundant of his previously considered assertions and are therefore not new and material to his previously denied claims.  The evidence submitted since the prior final rating decision of May 2004 does not raise a reasonable possibility of substantiating the claims at issue, and therefore does not constitute evidence that is new and material for purposes of reopening the Veteran's claims.  See 38 C.F.R. § 3.156 (2012).

In view of the foregoing discussion, the Board concludes that the evidence submitted since May 2004 is not new and material and the petition to reopen the Veteran's claims for service connection for a right corneal abrasion, CTS of the left wrist, and tuberculosis for a de novo review on the merits is denied.  See 38 C.F.R. § 3.156(a) (2012).


ORDER

An increased evaluation in excess of 10 percent for seasonal allergic rhinitis with reactive airway disease is denied.

Service connection for obstructive sleep apnea, to include as secondary to service-connected seasonal allergic rhinitis with reactive airway disease, is denied.

Service connection for visual impairment (claimed as astigmatism, presbyopia, refractive error, and myopia) is denied.

Service connection for diabetes mellitus is denied.

Service connection for hyperlipidemia is denied.

Service connection for neck strain as a separately ratable disability from the service-connected cervical spine arthritis is denied.

Entitlement to service connection for joint pain as a separately ratable disability from the service-connected left ankle and cervical and thoracolumbar spine arthritis is denied.

Entitlement to service connection for a thoracic spine disability as a separately ratable disability from the service-connected thoracolumbar spine arthritis is denied.

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

New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for a corneal abrasion of the right eye is denied.

New and material evidence having not been submitted, the application to reopen a previously denied claim of entitlement to service connection for CTS of the left wrist is denied.


REMAND

With respect to the claim of entitlement to an increased evaluation in excess of 20 percent for cervical spine arthritis, to include entitlement to an effective date prior to July 6, 2007, for the 20 percent evaluation award, in December 2012 the Board received evidentiary submissions from the Veteran that included military hospital treatment and X-ray reports dated November 2012 pertaining to his cervical spine disability.   The evidence is not accompanied by any waiver of first review by the agency of original jurisdiction and the Veteran is noted to be unrepresented in the current appeal.  Therefore, to avoid prejudice and ensure that his right to appellate due process is protected as it relates to his intertwined claims for an increased rating and earlier effective date for the award of VA compensation assigned to cervical spine arthritis, these issues are REMANDED to the RO via the AMC so that the aforementioned evidence may be considered in the first instance and the claims readjudicated by the agency of original jurisdiction.  Bernard v. Brown, 4 Vet. App. 384 (1993).  

Furthermore, with respect to the above claim for a rating increase for cervical spine arthritis above 20 percent (to include the intertwined claim of entitlement to an effective date prior to July 6, 2007, for the 20 percent evaluation award), and the claims for higher ratings for thorocolumbar spine arthritis (currently rated 20 percent disabling, to include the intertwined claim of entitlement to an effective date prior to September 10, 2007, for the 20 percent evaluation award), left ankle arthritis with pain on motion (currently rated 10 percent disabling), hypertension  (currently rated 10 percent disabling), and post-traumatic headaches (currently rated noncompensable), the Board's review of the pertinent evidence associated with the record, which includes the Veteran's claims file and the Virtual VA electronic database, show that the most recent VA medical examination addressing these aforementioned disabilities was conducted in February 2008, nearly five years earlier from the time of this writing.  

While the Board finds that the medical evidence in 2008 appears adequate to rate the issues for that time, it appears that the Veteran obtains much of his healthcare from non-VA sources, including Federal medical facilities such as military bases.  In view of the fact that the claims file contains essentially no medical evidence on any of these increase rating claims from 2008 until 2012, the Board finds that there may be pertinent medical evidence that supports the Veteran's increased rating claims, including the potential for evidence that might contradict the evidence of record in 2008. 

Indeed, in the ensuing years since the 2008 VA medical examination, the Veteran has reported in his written statements in support of his appeal that these orthopedic, cardiovascular, and neurological disabilities have become worse over time.  This general contention is implicit in all his current assertions relating to his increased rating claims.  The Veteran is competent to describe his own perceivable symptoms as they relate to his neck, mid- and lower back, left ankle, and headaches, and to state that they have increased in severity since his last prior VA examination.  

The Veteran is currently on a regimen of prescribed anti-hypertensive medication, which produces only minimal results according to the February 2008 VA examination report.  Although hypertension is a condition that does not typically present obviously self-perceivable symptoms, the record includes a July 2011 VA sleep apnea study that incidentally shows a single blood pressure reading of 146/90 millimeters of mercury (mmHg), which is significantly higher than the blood pressures obtained on prior examination in February 2008.  As a solitary blood pressure reading, it is supportive evidence indicative of, but not conclusively demonstrating a permanent increase in severity of the Veteran's hypertension.  

In view of the foregoing discussion, as the clinical findings presented in the February 2008 VA examination are now practically five years old, and the likelihood that the Veteran has sought treatment at non-VA facilities, the Board deems this examination report to be too old for an adequate evaluation of the current condition of the Veteran's cervical and thoracolumbar spine, left ankle, hypertension, and his chronic headaches.  A remand is therefore necessary to accord the Veteran a new examination.  Fulfillment of VA's duty to assist includes a thorough and contemporaneous medical examination that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability is a fully informed one.  Weggenmann v. Brown, 5 Vet. App. 281 (1993); Green v. Derwinski, 1 Vet. App. 121 (1991); Allday v. Brown, 7 Vet. App. 517 (1995); & Goss v. Brown, 9 Vet. App. 109, 114 (1996).

Accordingly, the case is REMANDED to the RO/AMC for the following action:

1.  The RO/AMC should obtain the names and addresses of all medical care providers, both VA and non-VA, that treated the Veteran for hypertension, chronic headaches, and chronic left ankle, neck, and mid- and lower back symptoms due arthritis of the left ankle and cervical and thoracolumbar spine since February 2008 (the date of the most current pertinent medical examination associated with his claims file).  

After obtaining any appropriate releases, those records should be obtained and associated with the claims folder.  All attempts to procure records should be documented in the file.  If the RO/AMC cannot obtain records identified as relevant by the Veteran, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, to provide the Veteran with the opportunity to obtain and submit those records for VA review. 

2.  Thereafter, the RO/AMC must arrange for the Veteran to undergo the appropriate VA examination for the purpose of ascertaining the current nature and extent of severity of his service-connected arthritis of his cervical and thoracolumbar spine.  The RO/AMC should attempt, to the extent that it is possible, to have the Veteran's examination conducted during a period of elevated neck and back symptomatology (flare-ups) so that an accurate clinical picture of the Veteran's level of impairment when his spine disabilities are at their most severe may be obtained.  Any indicated diagnostic tests and studies must be accomplished.  The examiner must review the Veteran's claims folder in conjunction with the examination.  

(a)  All pertinent symptomatology and findings must be reported in detail, to include, in degrees, the range of motion of the Veteran's cervical and thoracolumbar spine in all planes.

The examiner should note the point at which motion becomes painful, if any, in all planes of motion.  

The extent of any incoordination, weakened movement and excess fatigability on use should be described, as well as flare-ups or when the cervical spine and thoracolumbar spine are used repeatedly.  To the extent possible, functional impairment due to incoordination, weakened movement and excess fatigability, as well as due to flare-ups or when the cervical spine and thoracolumbar spine are used repeatedly, should be assessed in terms of additional degrees of limitation of motion.

The examiner should also state whether the cervical spine and thoracolumbar spine disabilities result in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis.  

The examiner should provide an opinion as to whether or not the presence of subjective pain throughout all ranges of cervical spine and/or thoracolumbar spine motion results in immobility or limitation of motion analogous to ankylosis of the affected spine.  The opinion should include thorough discussion that includes a detailed rationale supporting the examiner's conclusions.

(b)  The examiner must also comment upon whether the service-connected arthritis of the cervical and thoracolumbar spine involve the nerves and/or the muscles and joint structure.  With respect to the subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected arthritis of the cervical and thoracolumbar spine, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to these spine disabilities.  

(c)  If the clinical evidence demonstrates that the Veteran has radiculopathy associated with disc disease of the cervical and/or thoracolumbar spine, the examiner must also comment upon intervertebral disc syndrome (IVDS) associated with the service-connected spine disability/disabilities and address the question of whether there are incapacitating episodes of elevated symptomatology associated with IVDS and, if so:

(i)  Is the IVDS manifested by incapacitating episodes having a total duration of at least one week but less than 2 weeks during the previous 12 months?  

(ii)  Is the IVDS manifested by incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months?  

(iii)  Is the IVDS manifested by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months?  

(iv)  Is the IVDS manifested by incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months?




Note:  An incapacitating episode is 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.

(d)  provide an opinion as to the impact of the Veteran's cervical and/or thoracolumbar spine disability on his employment capacity, including whether or not the cervical and/or thoracolumbar disability imposes marked interference with his employment capacity given his vocational background and history. 

A complete rationale for all opinions must be provided.  If the examiner is unable to present any opinion without resorting to speculation, it must be so noted and explained why this is so.  The report prepared must be typed. 

3.  The RO/AMC must arrange for the Veteran to undergo the appropriate VA examination for the purpose of ascertaining the current nature and extent of severity of his service-connected arthritis of his left ankle.  The RO/AMC should attempt, to the extent that it is possible, to have the Veteran's examination conducted during a period of elevated left ankle symptomatology (flare-ups) so that an accurate clinical picture of the Veteran's level of impairment when this disability is at its most severe may be obtained.  Any indicated diagnostic tests and studies must be accomplished.  The examiner must review the Veteran's claims folder in conjunction with the examination.  

Thereafter, the examiner should:  

(a)  report all pertinent symptomatology and findings in detail, to include the range of motion of the Veteran's left ankle (in degrees) in all planes (plantar flexion, dorsiflexion, abduction, adduction, inversion, and eversion).

(b)  note the point at which motion becomes painful, if any, in all planes of motion.  

(c)  describe the extent of any incoordination, weakened movement and excess fatigability on use, as well as flare-ups or when the left ankle is used repeatedly.  To the extent possible, functional impairment due to incoordination, weakened movement and excess fatigability, as well as due to flare-ups or when the left ankle is used repeatedly, should be assessed in terms of additional degrees of limitation of motion.  

The limitation of motion should be characterized by the examiner using the terms "moderate" or "marked" based on the clinical findings obtained.

(d)  provide an opinion as to whether or not the presence of subjective pain throughout all ranges of left ankle motion results in immobility or limitation of motion analogous to ankylosis.  




(e)  provide an opinion as to the impact of the Veteran's left ankle disability on his employment capacity, including whether or not the left ankle disability imposes marked interference with his employment capacity given his vocational background and history. 

A complete rationale for all opinions must be provided.  If the examiner is unable to present any opinion without resorting to speculation, it must be so noted and explained why this is so.  The report prepared must be typed.

4.  The RO/AMC must arrange for the Veteran to undergo the appropriate VA examination for the purpose of ascertaining the current nature and extent of severity of his service-connected post-traumatic headaches.  Any indicated diagnostic tests and studies must be accomplished.  The examiner must review the Veteran's claims folder in conjunction with the examination.  

Thereafter, the examiner should:  

(a)  report all pertinent symptomatology and findings in detail, to include the severity of the post-traumatic headaches (i.e., are they prostrating?) and the frequency of their attacks.

(b)  determine if the post-traumatic headaches are manifested by characteristic prostrating attacks that are - 

(i.) averaging one in 2 months over the last several months?

(ii.) occurring on an average once a month over the last several months?

(iii.) very frequent, completely prostrating, and prolonged, which are productive of severe economic inadaptability?    

A complete rationale for all opinions must be provided.  If the examiner is unable to present any opinion without resorting to speculation, it must be so noted and explained why this is so.  The report prepared must be typed.

5.  The RO/AMC must arrange for the Veteran to undergo the appropriate VA examination for the purpose of ascertaining the current nature and extent of severity of his service-connected hypertension.  Any indicated diagnostic tests and studies must be accomplished.  The examiner must review the Veteran's claims folder in conjunction with the examination.  

Thereafter, the examiner should report all pertinent symptomatology and findings in detail, including answering the following questions:

(a)  Is the Veteran's diastolic pressure predominantly 100 mmHg or more, or; does he have systolic pressure predominantly 160 or more?


(b)  Is the Veteran's diastolic pressure predominantly 110 mmHg or more, or; does he have systolic pressure predominantly 200 or more?

(c)  Is the Veteran's diastolic pressure predominantly 120 mmHg or more?

(d)  Is the Veteran's diastolic pressure predominantly 130 mmHg or more?

A complete rationale for all opinions must be provided.  If the examiner is unable to present any opinion without resorting to speculation, it must be so noted and explained why this is so.  The report prepared must be typed.

6.  The RO must notify the Veteran that it is his responsibility to report for these examinations and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

7.  Thereafter, the claims file must be reviewed to ensure that all of the foregoing requested development has been completed.  After all appropriate evidentiary development has been completed, the RO should readjudicate the Veteran's claims of entitlement to:

An increased evaluation in excess of 20 percent for cervical spine arthritis, to include an effective date prior to July 6, 2007, for the 20 percent evaluation award. 

An increased evaluation in excess of 20 percent for thorocolumbar spine arthritis, to include an effective date prior to September 10, 2007, for the 20 percent evaluation award. 

An increased evaluation in excess of 10 percent for left ankle arthritis with pain on motion.

An increased evaluation in excess of 10 percent for hypertension.

A compensable evaluation for post-traumatic headaches.

If the maximum benefit sought on appeal with respect to any of these above claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs