Citation Nr: 1308368 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 05-13 089 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUES 1. Entitlement to service connection for pericarditis. 2. Entitlement to service connection for eczema of the feet. 3. Entitlement to an evaluation in excess of 30 percent for ion channel disorder, manifested by myopathy, to include whether separate ratings are warranted from August 1, 2003. 4. Entitlement to an initial compensable evaluation for mallet fourth (ring) finger of the right hand. 5. Entitlement to an initial compensable evaluation for a left thigh scar. 6. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1984 to July 2003. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision by the RO which, in part, denied the benefits sought on appeal. A notice of disagreement was received in June 2004, a statement of the case was promulgated in March 2005, and the Veteran perfected his appeal in April 2005. A hearing before the undersigned was held at the RO in May 2006. The Board remanded the appeal for additional development in March 2007, November 2009 and April 2011. By rating action in February 2012, the RO assigned separate ratings for the affected extremities of his Ion Channel disorder (now diagnosed as Anderson's disease), including a 20 percent rating for left lower extremity neuromuscular and radiculopathy weakness, and separate 10 percent ratings for neuromuscular weakness of the left upper and right lower extremities. At various times during the pendency of this appeal, the Veteran raised additional claims, including service connection for a psychiatric disorder, sleep disorder, low back disability and a total disability rating (TDIU). In February 2012, the RO granted service connection for mood disorder and lumbosacral neuritis, rated 100 percent and 20 percent disabling, respectively; each effective from March 18, 2010; obstructive sleep apnea, rated 50 percent disabling from December 3, 2011, and cardiac dysrhythmia with pacemaker, rated 10 percent disabling; effective from July 29, 2010. The RO also assigned a 100 convalescence rating for the cardiac disorder from September 8, 2011 to December 1, 2011, and a 10 percent thereafter. The Veteran was also granted entitlement special monthly compensation at the S rate; effective from March 18, 2010. The Veteran and his representative were notified of this decision and did not express dissatisfaction with the assigned ratings or effective dates of the awards. Accordingly, these issues will not be addressed in this decision. The issue of entitlement to TDIU is addressed in the REMAND portion of this decision, and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have pericarditis or eczema of the feet that is related to service or any incident therein. 2. Since service connection was granted, the residuals of the Veteran's ion channel myopathy have been manifested by symptoms most compatible with mild incomplete paralysis of the left upper median nerve and right lower sciatic nerve, and no more than moderate incomplete paralysis of the left lower sciatic nerve. 3. The Veteran's right fourth (ring) finger disability is manifested primarily by mild bony enlargement at the distal interphalangeal joint (DIP), without limitation of motion or any demonstrable functional impairment. 4. The residuals of the biopsy scar on the left thigh is manifested by a superficial two by one quarter inch scar which is not deep, adherent to the underlying tissue, unstable, tender or painful, and does not cause any functional limitation. CONCLUSIONS OF LAW 1. The Veteran does not have a pericarditis due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The Veteran does not have eczema of the feet due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. The criteria for a separate 20 percent evaluation, and no higher, for left lower extremity neuromuscular weakness and mild radiculopathy due to ion channel disorder from August 1, 2003, are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Part 4, including Diagnostic Codes 8023-8620 (2012). 4. The criteria for a separate 10 percent evaluation, and no higher, for right lower extremity neuromuscular weakness and mild radiculopathy due to ion channel disorder from August 1, 2003, are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Part 4, including Diagnostic Codes 8023-8620 (2012). 5. The criteria for a separate 10 percent evaluation, and no higher, for left upper extremity neuromuscular weakness due to ion channel disorder from August 1, 2003, are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Part 4, including Diagnostic Codes 8023-8615 (2012). 6. The criteria for an initial compensable evaluation for residuals of mallet right fourth finger are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2012). 7. The criteria for an initial compensable evaluation for a left thigh scar are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.10, 4.40, 4.118, Part 4, including Diagnostic Code 7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in August 2003. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All service treatment records (STRs) and VA and private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The Veteran was examined by VA during the pendency of this appeal and testified before the undersigned at a hearing at the RO in May 2006. The Board finds that the VA examinations were comprehensive and adequate upon which to base a decision on the merits of the issues on appeal. The VA examiners personally interviewed and examined the Veteran, elicited a medical history and provided comprehensive and rational explanations for the conclusions reached. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Concerning the May 2006 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, while the undersigned VLJ did not discuss the bases of the prior RO determination, she asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2012). 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Pericarditis Concerning the claim of service connection for pericarditis, the STRs showed that the Veteran was treated for acute pericarditis in April 2002, and that his symptoms resolved without residual disability. The STRs showed no further complaints, findings or diagnosis for pericarditis during service, and no pertinent abnormalities were noted on his service retirement examination in April 2003. Similarly, all post-service VA and private medical reports are silent for any complaints, treatment or objective evidence of any heart problems or symptoms associated with pericarditis. A private echocardiogram in January 2006, was within normal limits and showed no evidence of pericardial effusion or other heart abnormalities. Moreover, at the hearing before the undersigned in May 2006, the Veteran testified that he had no further problems or symptoms of pericarditis since the single episode in service. (Tp. 10). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In this case, the Veteran does not claim, nor does the medical evidence of record show any evidence of pericarditis or other residual symptomatology of pericarditis since the single episode in April 2002. Without evidence of a current disability, there is no basis upon which to establish service connection. Inasmuch as the Veteran does not claim to have pericarditis or any associated residual symptoms since the single episode in service, and there is no objective or competent medical evidence showing any residual disability associated with pericarditis at present, there is no basis to establish service connection for pericarditis. Dermatitis of the Feet The Veteran contends that service connection should be established for eczema of the feet. At the hearing in May 2006, he testified that he first noted skin changes on his feet around the same time that he was first treated for skin problems of the hands in service, and that he had outbreaks of eczema monthly, lasting about three and a half weeks each time. He also testified that he was first diagnosed with eczema in June 2002. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Concerning the Veteran's contentions, while his is competent to provide evidence regarding his observations and experiences, any such assertions must be weighed against other inconsistent or contradictory evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) [it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F. 3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. In this regard, while the STRs showed that the Veteran was treated for various skin problems during service, including hives or possible contact dermatitis of the right elbow, rash or possible scabies on his neck, chest, elbows, knees and fingers, pseudo foliculitis, impetigo of the groin, candida/fungal infection of the penis, tinea crusis on his legs, and dry skin of the hands, there was no evidence of any complaints, treatment, abnormalities or diagnosis for any skin problems of the feet in service. Similarly, the Veteran made no mention of any skin or foot problems at the time of his retirement examination in April 2003, and no pertinent abnormalities were noted on examination at that time. Additionally, the Veteran was not shown to have any skin abnormalities when examined by VA in February 2004 or January 2006. On the latter examination, the examiner indicated, specifically that there was no evidence of dermatitis, eczema, dermatophytosis or any other skin abnormalities, other than a history of herpes simplex II. When examined by VA in June 2008, the examiner indicated that the claims file was reviewed and included a detailed description of his the Veteran's complaints, medical history and clinical findings. The Veteran reported that he was first treated for eczema of the hands and feet in 1989, and said that he had some relief with over-the-counter ointments, but that his symptoms worsened over the years and that he was eventually treated with cortisone cream at a service clinic in 1996. The Veteran reported that his symptoms were worse in the summer months, and that he has flare-ups intermittently in the winter and fall. On examination, there were small areas of dry, scaly lesions on the ulnar side of both hands, and bigger lesions on both elbows and heels. The diagnosis was eczema of the hands. The examiner indicated that there was no evidence of treatment or objective findings for any skin problems of the feet in service or on VA examinations in 2004 or 2006, and opined that it was less likely than not that any current eczema of the feet was caused by or the result of eczema in service. In this case, the Board finds the June 2008 VA opinion persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current eczema of the feet was not present in service or until many years after service, and was not related to any skin disorder in service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Furthermore, the Veteran has not present any competent medical evidence to rebut that opinion. Thus, the most probative evidence of record consists of the June 2008 VA opinion. Regarding the Veteran's testimony that he was diagnosed with eczema at Balboa Naval Medical Center on June 3, 2002, the Board notes that there is no STR in the claims file showing treatment for eczema or any other malady on that date. An Abstract of Service and Medical History showed that the Veteran was assigned to the sub base at Point Loma, San Diego on that date, but do not show any specific treatment or diagnosis for a skin disorder. Moreover, that the Veteran would experience monthly outbreaks of eczema that lasted three and a half weeks each time, but that there would not be a single STR reflecting his alleged chronic skin problems of the feet, and that he would specifically deny any skin or foot problems at the time of his retirement examination in March 2003, is not rational or believable. Thus, the Board finds that no useful purpose would be served in remanding the appeal to attempt to determine whether he was diagnosed with eczema of the feet on that date. Because the Veteran's contentions are inconsistent with the record, the Board does not find them credible, and accords them no probative value. The Veteran is likewise not shown to have any medical expertise, and therefore any medical conclusions he offers are of no probative value. The decision then must be based on the documented medical record, which as described above, fails to support the conclusion that any current skin disorder of the feet is related to service. Inasmuch as there was no objective evidence of a skin disorder of the feet in service or until many years after service, and no competent probative medical evidence relating any current skin disorder of the feet to service, the record affords no basis to grant service connection. Accordingly, the service connection for eczema of the feet is denied. Increased Ratings - In General When, as here, the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. Ion Channel Disorder Historically, service connection was established for Ion Channel (IC) disorder manifested by myopathy, by the RO in April 2004, based a confirmed diagnosis by punch biopsy in service. Because there is no rating code specifically for IC disorder, the RO initially assigned a 10 percent evaluation by analogy to Diagnostic Code (DC) 8010, for myelitis, which provided for a minimum rating of 10 percent. By rating action in August 2008, the RO determined that the symptomatology of the Veteran's disability, i.e., progressive myopathy, was more compatible with the rating code for progressive muscular atrophy, and assigned the minimal rating of 30 percent under DC 8023; effective from August 1, 2003, the day following discharge from service. 38 C.F.R. § 3.400(b)(2). The accompanying Note for DCs 8000-8025, provides that the minimum ratings are to be assigned when there are ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded, and that subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. 38 C.F.R. § 4.124a, Note. By rating action in February 2012, the RO determined that it would be more advantageous to the Veteran to rate the residuals of his IC myopathy individually, and assigned separate evaluations for the left upper and both lower extremities. Specifically, the RO assigned a 10 percent evaluation for neuromuscular weakness of the left upper extremity under DC 8615, and 20 and 10 percent evaluations for neuromuscular weakness and radiculopathy of the left and right lower extremities, respectively, under DC 8520; each effective from December 3, 2011. Under DC 8615, for incomplete paralysis of the median nerve of the non-dominate extremity; a 10 percent evaluation is assigned for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, and a 40 percent severe incomplete paralysis. Complete paralysis will be evaluated as 60 percent when the hand is inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbance. 38 C.F.R. § 4.124a, DC 8615. Under DC 8520, for incomplete paralysis of the sciatic nerve, a 10 percent evaluation may be assigned for mild incomplete paralysis. Incomplete paralysis with moderate and moderately severe symptomatology warrants a 20 percent and a 40 percent evaluation, respectively. Incomplete paralysis with severe symptomatology and marked muscular atrophy warrants a 60 percent evaluation. An 80 percent rating is warranted for complete paralysis of the nerve when the foot dangles and drops and there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. VA regulations provide that neurological conditions are to be evaluated based upon the impairment of motor, sensory, or mental functioning. 38 C.F.R. § 4.120 (2012). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In this case, the objective findings on all of the medical reports and examinations during the pendency of this appeal did not reflect more than moderate neurological impairment, manifested primarily by pain and weakness in the left upper and both lower extremities, principally on the left side with some gait disturbance. There was no objective evidence of any muscle atrophy, or any bowel or bladder impairment and the Veteran was shown to have good range of motion in all of his extremities. Historically, the STRs showed that the Veteran was treated for chronic pain and muscle fatigue of the upper and lower extremities on numerous occasions in service beginning in the Spring of 2002, and was subsequently diagnosed with Ion Channel disorder on muscle biopsy. The Veteran was medically discharged in July 2003, after 19 years of service. After reviewing all the medical reports of record, it is evident that Ion Channel (IC) disorder is an insidious disease, the nature and progression of which is not completely understood. When the Veteran was first treated by VA in August 2003, the physician noted that some myopathies were responsive to Diamox therapy, and indicated that further investigation should be undertaken to determine the specific genetic markers of the Veteran's myopathy. At that time, the physician started the Veteran on a trial of Diamox. However, in September 2003, he reported that the Veteran was not able to tolerate Diamox and the medication was discontinued. The physician also indicated that he was unable to find a reference laboratory for testing the Veteran's type of myopathy. More recent service department medical records indicated that further diagnostic testing showed that the specific etiology of the Veteran's myopathy was Anderson's disease. A report from the Chief of Neurology at Michael O'Callaghan Federal Hospital, Nellis AFB in March 2010, noted that Anderson's disease is a potassium channel myopathy that causes a generalized weakness with periodic worsening, and that there is no cure. (See also, December 2011 VA examination report). The evidence of record shows that the Veteran has been treated by VA and other various healthcare providers, and has pursued his claim for a higher evaluation for his IC myopathy since his discharge from service. When examined by VA in February 2004, the Veteran reported recurrent muscle cramps and fatigue on minimal exertion. He also reported that had to quit his job as an assistant manager of an auto parts store in 2003, after only a couple of months because of chronic pain in his arms, legs and chest after minimal lifting. Although there were no objective neurological or clinical abnormalities identified on examination, the examiner did not offer any assessment concerning the Veteran's functional impairment. Therefore, the Board finds that the examination was inadequate for rating purposes, as there was no basis upon which to determine the degree of functional impairment associated with the Veteran's IC disorder. At this point, the Board notes that while a private physician in July 2004 reported that the Veteran's metabolic myopathy rendered him unemployable, he did not report any specific clinical findings or offer any rational for his opinion. Moreover, VA Vocational records recently associated with the claims file showed that the Veteran was employed full-time as a mobile home salesman in 2005; reportedly making $4000 per month, and that he was employed as a car salesman when examined by VA in June 2008. Thus, the Board finds that the July 2004 private medical opinion concerning the Veteran's employability is of limited probative value. A Temporary Disability Retired List (TDRL) examination in March 2005, indicated that the Veteran's myopathic symptoms had worsened since his previous MEB examination (in 2003), and that he had severe muscle pain with just walking, greater in his legs than in his arms, and that lifting even 20 pounds caused severe cramps in his biceps and forearms. The Veteran also reported tightness in his extremities with simple activities such as turning a screwdriver, chronic left leg muscle pain from his hip to his knee even at rest, and an occasional sharp, electrical type sensation. The Veteran was also noted to use a cane to ambulate. In January 2006, the Veteran reported numbness, cramping and pain in both lower extremities. At the hearing before the undersigned in May 2006, the Veteran testified that his ion channel disorder was progressively worsening and affected his entire life. He said that he was no longer able to enjoy the simple things in life, such as walking in the mall with his children or relations with his wife. He also testified that he was not able to cook anymore (was a cook in the service) because of balance problems, and that he had difficulty holding a cup of coffee and controlling his lower extremities due to numbness which affected his mobility. On VA muscle examination in June 2008, the Veteran reported severe pain and numbness in his arms, thighs and legs, decreased coordination, and increased fatigability, weakness and uncertainty of movements. He reported severe flare-up, daily lasting for several hours, muscle cramps when sitting, and could not walk for more than five minutes or stand for more than 10 minutes. On examination, the Veteran had decreased strength in his left upper and left lower extremities, normal strength on the right side, and slight muscle atrophy on the left side as compared to the right. The diagnoses included metabolic myopathy due to IC disorder with mild muscular weakness on the left upper and left lower extremities, and mild gait instability causing a limp. The examiner commented that the Veteran's disability caused considerable restrictions on his physical activities during the day. A service department medical report, associated with the claims file in August 2009, showed that the Veteran had an abnormal EMG study in July 2005. The Veteran's complaints and the clinical findings on VA examination in December 2011, were not significantly different than on the prior examinations. The examiner indicated that the Veteran had decreased mobility, problems with lifting and carrying, lack of stamina, mild atrophy and decreased strength in the left upper and left lower extremities, and a slight gait disturbance due to the muscle weakness on his left leg and foot due to his IC disorder. There was no sensory dysfunction, tremors or visceral manifestations or paralysis. The examiner commented that the Veteran's muscle weakness and muscle fatigue, especially on exertion, caused considerable restrictions on his physical activities during the day. Based on the clinical and diagnostic evidence of record, the Board finds that the totality of the evidence during the pendency of this appeal shows clinically significant symptoms compatible with no more than mild incomplete paralysis of the left upper median nerve and right lower sciatic nerve, or more than moderate incomplete paralysis sciatic nerve of the left lower extremity. Although the Veteran did not manifest any significant objective clinical findings on the initial VA examinations in 2004, 2006 or 2008, his description of symptoms and the physical limitations that they had on his activities of daily living were consistent with the underlying nature of his myopathy disorder and the expected functional impairment associated with that disorder. Unfortunately, the early VA examinations did not address the degree of functional impairment associated with the Veteran's disability. Thus, the Board is unable to determine, with any degree of medical certainty, the severity of his functional impairment on those examinations. At no time during this appeal, did any physician or examiner indicate or otherwise suggest that the Veteran's reported symptoms were exaggerated or inconsistent with his myopathy disorder, nor does the Board finds any such inconsistencies in the Veteran's description of symptomatology at the personal hearing in May 2006. Given the insidious nature of the Veteran's metabolic myopathic disorder, and the absence of any medical opinion or findings addressing the actual degree of functional impairment resulting from the disorder, the Board finds that the Veteran's description of functional impairment in his left upper and bilateral lower extremities since his discharge from service is believable. Accordingly, the Board finds that the Veteran is entitled to separate ratings of 10 percent for the left upper and right lower extremities, and 20 percent for the left lower extremity, from the initial grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). Mallet Finger Service connection was established for mallet fourth (ring) finger of the right hand by the RO in April 2004, and a noncompensable evaluation assigned under DC 5230, effective from August 1, 2003, the day following discharge from service, based on the STRs which showed treatment for a non-fracture injury to the right ring finger when the Veteran fell in the shower in 2001. Under DC 5230, the maximum schedular rating for any limitation of motion of the ring finger is a noncompensable evaluation. 38 C.F.R. § 4.71a, DC 5230. For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the MCP joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand. The objective findings on the VA examinations conducted during the pendency of this appeal (February 2004 and January 2006), were not significantly different and was manifested by bony enlargement and some limitation of motion of the distal interphalangeal joint (DIP), with good grip strength and no impairment of dexterity or demonstrable functional impairment of the ring finger. X-ray studies revealed minor flexion deformity, but was otherwise within normal limits and showed no evidence of arthritis. On VA examination January 2006, the examiner indicated that evaluation of the right hand as a unit was normal and showed no gap - ability to touch the fingertips to the proximal transverse crease of the palm, and that the ring finger disability was asymptomatic. In this case, the Veteran's ring finger disability is manifested principally by mild mallet deformity and mild limitation of motion of the DIP joint. However, there is no evidence of loss of dexterity, decreased sensation or any functional limitation on use of the ring finger or the right hand. Therefore, there is no basis for the assignment of a compensable evaluation for the ring finger under DC 5230. Additionally, there was no objective evidence of arthritis of the right ring finger. Thus, consideration of a higher evaluation based on arthritis with limitation of motion to a noncompensable degree, is not warranted. See 38 C.F.R. § 4.71a, DC 5003. Finally, absent evidence of actual or functional impairment of the ring finger commensurate with amputation to at least the proximal interphalangeal joint (PIP) or proximal thereto, there is no basis for a higher schedular evaluation for amputation of a single digit under DC 5155. While the Board is sympathetic to the Veteran's complaints that he has difficulty holding a pen, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant." Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Here, there were no objective observations of pain, cramping stiffness or any additional functional loss of use due to pain or on repetitive motion. The Veteran's complaints are simply not enough for the assignment of an increased evaluation and the remaining evidence of record does not indicate visible behavior or adequate pathology demonstrating any functional impairment commensurate with the criteria necessary for a compensable evaluation for his ring finger disability during the pendency of this appeal. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (noting that "although pain may cause a functional loss, pain itself does not constitute functional loss"). In light of the clinical findings of record, the Board finds that an increased evaluation based on additional functional loss is not demonstrated. Left Thigh Scar Initially, it should be noted that during the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. However, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under DCs 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). In this case, the Veteran filed his claim in August 2003, prior to the amendment to the rating criteria, and he has not requested a review under the new criteria. As such, his pending claim currently on appeal will be reviewed under the criteria in effect prior to October 23, 2008. The Veteran was assigned a noncompensable evaluation for a biopsy scar on the left thigh under DC 7805, which directs that scars are to be rated on limitation of function of the part affected. 38 C.F.R. § 4.118, DC 7805 (2012). Other potentially applicable rating codes include DC 7801, 7802, 7803, and 7804. DC 7801 governs the evaluation of scars other than on the head, face, or neck, that are deep or that cause limited motion. A 10 percent disability evaluation is for assignment for an area or areas exceeding 6 square inches. A 20 percent disability evaluation is contemplated for an area or areas exceeding 12 square inches. Under DC 7802, a 10 percent disability evaluation is assigned for scars other than on the head, face, or neck, that are superficial and that do not cause limited motion and have an area or areas of 144 square inches or greater. A 10 percent disability evaluation represents the maximum schedular rating available under DC 7802. Under Diagnostic Code 7803, a 10 percent evaluation is warranted for superficial, unstable scars. Likewise, a 10 percent evaluation is also warranted under DC 7804, for superficial scars that are painful on examination. The Veteran's complaints and the clinical findings concerning the left thigh biopsy scar were essentially the same on the two VA examinations conducted during the pendency of this appeal and showed that the scar was asymptomatic. On VA examination in February 2004, the examiner reported that there was a 3-cm vertical scar on the upper anterior/lateral thigh area which was well-healed and not tender with mild induration and a slight bluish discoloration. On VA examination in January 2006, the examiner indicated that there were no current symptoms associated with the superficial, two by one quarter inch biopsy scar. The scar was not deep, painful to palpation or adherent to the underlying tissue, and was not elevated or depressed. There was no inflammation, edema or keloid formation, the skin color was the same as the surrounding tissue, and there was no limitation of motion of the left leg associated with the scar. Based on the objective findings from the VA examinations during the pendency of this appeal, the preponderance of the evidence is against the assignment of a compensable evaluation for the Veteran's left thigh biopsy scar. The evidence showed that the two by one quarter inch, well-healed, linear surgical scar does not encompass an area exceeding six square inches (39 square centimeters), is not shown to be superficial and unstable (DC 7803), or objectively demonstrated to be tender and painful (DC 7804), and does not cause limited motion (DC 7805). Thus, a compensable evaluation is not warranted for the left thigh scar under these or any other potentially applicable diagnostic codes associated with scars and their residual effects. See 38 C.F.R. § 4.118 (2012). Finally, applying the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's present impairment from left thigh scar does not suggest that he has sufficient symptoms so as to a warrant an evaluation in excess of the ratings currently assigned. Accordingly, the evaluations assigned for the residuals of left (minor) acromioclavicular joint separation with superficial sensory nerve injury and the surgical scar accurately depict the severity of the conditions for the entirety of the rating period on appeal, and there is no basis for higher ratings. Accordingly, an increased evaluation for the residuals of the left shoulder injury are not warranted. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). For the reasons discussed above, the Board finds that the manifestations of the Veteran's IC disorder, right fourth finger and left thigh scar disabilities are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disabilities are unusual or exceptional. The schedular rating criteria adequately contemplate the degree of impairment caused by the disabilities, and provides for increased ratings for additional symptoms. In view of this, referral of this case for extraschedular consideration is not in order. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the Veteran's claims of service connection for pericarditis and eczema of the feet, or for increased ratings for the right finger and left thigh scar. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against these claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for pericarditis is denied. Service connection for eczema of the feet is denied. An increased rating to 20 percent and no higher, for left lower extremity neuromuscular weakness and radiculopathy due to ion channel disorder from August 1, 2003, is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. An increased rating to 10 percent and no higher, for right lower extremity neuromuscular weakness due to ion channel disorder from August 1, 2003, is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. An increased rating to 10 percent and no higher, for left upper extremity neuromuscular weakness due to ion channel disorder from August 1, 2003, is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. An increased evaluation for mallet fourth finger of the right hand is denied. An increased rating for a left thigh scar is denied. REMAND In a letter received in February 2010, the Veteran disagreed with the September 2009 rating decision that denied, in part, entitlement to TDIU. However, a statement of the case, (SOC) has not been promulgated for this issue. While the Board takes note of the letter inserted in the claims file by the Appeals Management Center DRO, dated in October 2012, to the effect that the Veteran is already service-connected at the 100 percent rating with Chapter 35 benefits, such action does not render the Veteran's claim moot. The current evidence of record showed that the Veteran has been unemployed since 2008, and that he filed his claim for TDIU in March 2009. His 100 percent schedular rating was made effective from March 18, 2010. Thus, consideration must be given to whether he is entitled to TDIU for the period prior to March 2010. When there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, thereby initiating the appellate process, the claimant is entitled to an SOC regarding the denied issue. The RO's failure to issue an SOC for the Veteran's claim for TDIU is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Archbald v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbald, 9 Vet. App. at 130. In light of the discussion above and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED for the following action: The Veteran and his representative should be furnished a statement of the case for the issue of entitlement to TDIU, and should be notified of the need to file a timely substantive appeal should he wish the Board to address this issue. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs