Citation Nr: 1308644	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  10-42 073	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES


1.  Entitlement to service connection for gastroesophageal reflux disease (GERD).  

2.  Entitlement to service connection for a sleep disorder (claimed as sleep apnea), to include as secondary to service-connected posttraumatic stress disorder (PTSD).  

3.  Entitlement to service connection for the residuals of an injury to the left knee.  

4.  Entitlement to service connection for the residuals of an injury to the right knee.  

5.  Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected lumbar spine disability.  

6.  Entitlement to an initial disability evaluation in excess of 10 percent for coronary artery disease.  

7.  Entitlement to an initial disability evaluation in excess of 30 percent for PTSD.  

8.  Entitlement to an initial disability evaluation in excess of 20 percent for decreased range of motion, little finger, ring finger, index finger and long finger, status post trauma and laceration to the left hand and fingers (hereinafter "a left hand disability").  

9.  Entitlement to an initial disability evaluation in excess of 10 percent for radiculopathy of the right lower extremity.  

10.  Entitlement to an evaluation in excess of 30 percent for status post shell fragment injury of muscle group XXII with retained foreign body, effective from February 11, 2009, to January 29, 2010 (hereinafter "shell fragment wound residuals").  

11.  Entitlement to an initial disability evaluation in excess of 10 percent for cervical spine degenerative disc disease and facet degenerative joint disease with paracervical muscle strain (hereinafter "a cervical spine disability").  

12.  Entitlement to an initial disability evaluation in excess of 10 percent for scarring of the right anterior neck, status post shell fragment wound with removed foreign body.  

13.  Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities.  


REPRESENTATION

Appellant represented by:	John S. Berry, Esq.


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel
	
INTRODUCTION

The Veteran had active service from September 1970 to March 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  

The Veteran has alleged occupational impairment because of his service-connected disabilities.  In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant:  (1)submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a total disability rating based on individual unemployability (TDIU).  And as the United States Court of Appeals for Veterans Claims (Court) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim.  VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim.  See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001).

The issue of entitlement to an increased disability evaluation for radiculopathy of the left lower extremity was raised by the Veteran in a January 2012 statement, but it has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for GERD and entitlement to increased disability evaluations for coronary artery disease, PTSD, cervical spine degenerative disc disease and scarring of the right anterior neck are addressed in the REMAND portion of the decision below and are REMANDED to the VA RO.
FINDINGS OF FACT

1.  The Veteran has not been diagnosed with a separate and distinct sleep disorder that manifested during, or as a result of, active military service, or, that was caused by or permanently aggravated by a service-connected disability.  

2.  The Veteran has not been diagnosed with a chronic disability of the left knee that manifested during, or as a result of, active military service.  

3.  The Veteran has not been diagnosed with a chronic disability of the right knee that manifested during, or as a result of, active military service.  

4.  The Veteran's erectile dysfunction did not manifest during, or as a result of, active military service, nor is it secondary to his service-connected lumbar spine disability.  

5.  The Veteran's left hand disability is manifested by moderately severe impairment to muscle group VII, with some limited motion of the fingers (although the thumb can still be touched to all fingers), stiffness and decreased grip strength; it is not manifested by severe impairment to muscle group VII.  

6.  The Veteran's radiculopathy of the right lower extremity is manifested by mild incomplete paralysis of the sciatic nerve with normal sensation, mild paresthesias, and impaired reflexes; it is not manifested moderate incomplete paralysis of the sciatic nerve.  

7.  From February 11, 2009, to January 29, 2010, the Veteran was in receipt of the maximum schedular evaluation for a shell fragment wound to muscle group XXII; his symptoms were not so extraordinary during this time as to warrant referral for an extraschedular evaluation.  



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CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for a sleep disorder, to include as secondary to a service-connected disability, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

2.  The criteria for establishing service connection for the residuals of an injury to the left knee have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

3.  The criteria for establishing service connection for the residuals of an injury to the right knee have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

4.  The criteria for establishing service connection for erectile dysfunction, to include as secondary to a service-connected disability, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

5.  The criteria for establishing entitlement to an initial disability evaluation in excess of 20 percent for a left hand disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40,4.56, 4.73, Diagnostic Code 5307 (2012).

6.  The criteria for establishing entitlement to an initial disability evaluation in excess of 10 percent for radiculopathy of the right lower extremity.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012).

7.  The criteria for establishing entitlement to a disability evaluation in excess of 30 percent for status post shell fragment injury of muscle group XXII with retained foreign body, effective from February 11, 2009, to January 29, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40,4.56, 4.73, Diagnostic Code 5322 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  
	
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error.  Sanders v. Nicholson, 487 F.3d 881 (2007).  VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law.  Id.  However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2).  Shinseki v. Sanders, 556 U.S. 396 (2009).  In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice.  Id.

Regarding the Veteran's claims for higher disability evaluations, these claims arise from his disagreement with the initial evaluations following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for these claims.  

As for his claims of entitlement to service connection, letters sent to the Veteran in February 2009, October 2009, June 2010, May 2011, and October 2011 addressed all notice elements listed under 3.159(b)(1).  The Veteran was also provided with all necessary notice prior to the initial RO decisions in these matters.  The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content.  Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA obtained the Veteran's service treatment records.  Also, the Veteran received numerous VA medical examinations throughout the pendency of his claim , and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA.  Records from as recently as January 2012 are incorporated with the Veteran's electronic claims file (Virtual VA).  Copies of private treatment records have also been obtained and incorporated into the Veteran's claims file.  Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Service Connection Claims

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

To establish service connection, there must be:  (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).  

Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).  

Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation.  See 38 C.F.R. § 3.159 (2011); see also Grivois v. Brown, 6 Vet. App. 136 (1994).  

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  

Sleep Disorder

The Veteran also contends that he is entitled to service connection for a sleep disorder.  Specifically, the Veteran has asserted that he suffers from a separate and distinct disability associated with sleep as a result of his service-connected PTSD.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's impaired sleep is merely a symptom of his service-connected PTSD and not a separate and distinct disability.  As such, service connection is not warranted.  

According to a March 2009 VA outpatient treatment record, the Veteran was tired.  It was noted that his nightmares had increased from once a month to about three times per week.  

The Veteran was afforded a VA examination for his PTSD in April 2009.  While the examination report does indicate that the Veteran denied a history of sleep impairment, the report subsequently endorses difficulty falling or staying asleep.  The Veteran also noted nightmares most nights of the week.  He could only fall back asleep following these "sometimes."  

The Veteran underwent another VA psychiatric examination in December 2009.  The Veteran described significant difficulty with sleep with nightmares occurring more nights than not.  The Veteran indicated that he got approximately 3 to 4 hours of sleep per night.  It was noted that the Veteran's nightmares and sleep disturbances were part of his PTSD.  

In June 2010, another VA examiner opined that sleep disturbance is part of the PTSD complex of symptoms.  It is also one of the criteria for diagnosing PTSD, and as such, it is not cause by or aggravated by PTSD since it is in fact one of the criteria for PTSD.  The examiner further stated that if the Veteran were to be diagnosed with obstructive sleep apnea in a general medical evaluation, this would not be caused by or aggravated by his PTSD.  A search of the medical literature did not reveal any evidence to support such a correlation.  

According to an August 2011 VA treatment record, the Veteran's service-related nightmares were exacerbated by the recent stressor involving the poor health of his son-in-law.  Again, no separate sleep disability associated with PTSD was diagnosed at this time.  The Veteran again reported serious problems with sleep during treatment in January 2012, noting that he was extremely stressed and sometimes he slept very poorly.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a sleep disorder, to include sleep apnea and to include as secondary to his service-connected PTSD.  The Veteran's impaired sleep, including his nightmares and his difficulty falling and staying asleep, are symptoms of his PTSD and already considered as part of his total disability evaluation for PTSD.  To assign a separate rating based on this symptomatology would amount to nothing more than pyramiding.  Pyramiding, the evaluation of the same disability or same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  

The Veteran has also referred to his impaired sleep as sleep apnea.  However, the evidence of record fails to demonstrate that the Veteran has been diagnosed with sleep apnea.  The Veteran has asserted that he suffers from this disability, but there is no medical evidence of record to support this assertion.  Furthermore, the June 2010 VA examiner explained that there was nothing in the medical literature to support the proposition that PTSD can cause sleep apnea.  As such, service connection for sleep apnea is not warranted in this case.  

The Board notes that the Veteran did reference an article from Advance for Respiratory Care & Sleep Medicine in his April 2010 notice of disagreement.  The Board notes that, with regard to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998).  The Veteran has asserted that this article reflects a link between PTSD and sleep apnea.  However, a review of the article in fact notes that the evidence appears to suggest that numerous people who are diagnosed with PTSD are in fact suffering from sleep apnea, which results in similar symptoms such as dry mouth and headaches.  This article fails to support the assertion that PTSD is somehow responsible for sleep apnea.  In the present case, the Veteran has repeatedly related his impaired sleep to nightmares occurring on a frequent basis.  Trained psychologists have determined that the Veteran does in fact suffer from PTSD.  Therefore, this evidence fails to suggest any relationship between PTSD and sleep apnea (which has not been diagnosed in this case).  

As a final matter, the Board is aware that the Veteran received the Combat Infantry Badge.  The "combat presumption" means that in the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The phrase "engaged in combat with the enemy" requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998).  Although 38 U.S.C. 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and honorable service.  Libertine, 9 Vet. App. at 524.  In the present case, there is no evidence of a separate and distinct sleep disorder having been diagnosed, and as such, the combat presumption does not aid the Veteran.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to a separate disability manifested by impaired sleep must be denied.

Bilateral Knee Disability 

The Veteran also contends that he is entitled to service connection for disabilities of the knees.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a disability of either knee that manifested during, or as a result of, active military service.  As such, service connection for a disability of either knee is not warranted.  

The Veteran's service treatment records do not reflect treatment for an injury to either knee or any symptomatology associated with either knee.  An evaluation of the lower extremities performed during the Veteran's March 1972 separation examination was also deemed to be normal.  The Veteran also denied having, or ever having had, suffered from bone, joint or other deformity, or, a "trick" or locked knee.  As such, service treatment records reflect no injury or symptomatology associated with either knee.  

Likewise, post-service treatment records fail to reflect that the Veteran suffers from a current knee disability that manifested during, or as a result of, active military service.  The first evidence of symptomatology of either knee is the Veteran's claim of February 2009.  This is approximately 37 years after separation from active duty.  At this time, the Veteran reported that his knee disability began in February 1971.  

Post-service treatment records do not reflect that the Veteran has sought treatment for a disability of either knee.  A December 2007 VA problem list also fails to mention a disability of either knee.  

The Veteran was afforded a VA examination of the knees in October 2010.  The Veteran reported problems with his knees over the "last number of years."  The Veteran felt that this related back to his military service.  The examiner noted, however, that a review of the Veteran's service treatment records was silent for any evaluation or treatment for a knee condition.  The Veteran had also not undergone any treatment for the knees since his separation from military service.  Nonetheless, the Veteran described his right knee as unstable and endorsed pain in the knees, greater in the right.  X-rays revealed no significant degenerative changes, bilaterally.  Soft tissue was also normal with no effusion.  The examiner diagnosed the Veteran with a bilateral knee strain with retropatellar pain syndrome (RPPS).  The examiner opined that it was less likely as not that this condition was caused by or a result of military service.  The examiner explained that current X-rays revealed normal knees without evidence of arthritic changes or degenerative changes.  The Veteran also did not describe any treatment for an ongoing knee condition and there were no records or documentation to confirm any continuity of symptomatology.  Finally, the Veteran did not describe any one specific injury event or incident that occurred while on active military duty that likely resulted in his current knee condition.  The record reflects no further treatment for a condition of either knee.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a disability of either knee.  The Veteran's service treatment records reflect no complaints involving either knee and the Veteran himself denied knee problems upon separation.  In fact, the first evidence of knee symptomatology is the Veteran's claim from 37 years after separation.  When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence).  In the present case, the lack of complaints involving either knee for more than three decades after separation from active duty tends to suggest that the Veteran has not suffered from chronic symptomatology since separation.  

Furthermore, the VA examiner concluded that X-rays revealed both knees to be normal.  There must be a current diagnosis of a disorder for service connection to be granted.  Hickson v. West, 12 Vet. App. 247, 252 (1999).  While the VA examiner did assign a diagnosis of a knee strain with RPPS, the examiner opined that this condition was less likely than not related to military service.  The examiner explained that the Veteran did not describe any specific injury during military service and that he denied seeking treatment for his knees.  X-rays also revealed no arthritic changes in either knee.  As such, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a disability in either knee that manifested during, or as a result of, active military service.  

The Board recognizes that the Veteran informed the VA examiner that he believed his knee problems related back to his military service.  However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to relate a current knee strain to general use during military service decades earlier.  When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  According to the VA examiner of record, there was no X-ray evidence of arthritis and it was less likely than not that his current complaints were related to military service.  The Board finds this opinion to be more probative than statements offered by the Veteran decades after his separation from active duty.  While the Veteran would certainly be competent to testify to a history of pain in the knees, pain alone is not a disability for VA compensation purposes.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).  

The Board again notes that the combat presumption at 38 U.S.C. 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service.  However, it does not negate the need for medical evidence of a current disability and evidence of a nexus between a current disability and honorable service.  Libertine, 9 Vet. App. at 524.  In the present case, the Veteran has not been diagnosed with a disability of either knee that manifested during, or as a result of, active military service, and as such, the combat presumption does not aid the Veteran.  

Finally, the record also contains a statement from a soldier purporting to have served in Vietnam with the Veteran.  According to this individual he was "not surprised" that the Veteran reported knee problems because he remembered jumping out of helicopters with heavy backpacks before they had actually landed.  While the Board has considered this statement, it in no way demonstrates that the Veteran actually suffers from a disability of the knees that manifested during, or as a result of, active military service.  The Veteran's lay reports of knee pain are well-documented in the record.  What is not established, however, is that the Veteran suffers from a current disability of either knee that manifested during, or as a result of, active military service.  The statement provided by this soldier in no way establishes this fact.  The mere fact that the Veteran jumped out of helicopters with a heavy backpack is not in and of itself evidence of a current knee disability nearly 40 years after the reported incident.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claims of entitlement to service connection for disabilities of the right and left knees must be denied.

Erectile Dysfunction

The Veteran also contends that he is entitled to service connection for erectile dysfunction.  Specifically, it has been argued that this disability is secondary to a service-connected lumbar spine disability.  However, the preponderance of the evidence of record demonstrates that this disability did not manifest during, or as a result of, active military service, nor is it secondary to a service-connected disability.  As such, service connection is not warranted.  

The Veteran's service treatment records do not reflect symptomatology or complaints of erectile dysfunction.  An evaluation of the genitourinary system performed as part of the Veteran's March 1972 separation examination was normal and the Veteran did not report erectile dysfunction in his report of medical history associated with this examination.  

In May 2011, the Veteran submitted a claim seeking service connection for erectile dysfunction as secondary to his service-connected lumbar spine disability.  The record reflects that the Veteran was afforded a VA examination of the lumbar spine in October 2010.  According to the examination report, the Veteran did not have a history of erectile dysfunction.  

The Veteran was specifically afforded a VA reproductive examination in October 2011.  It was noted that the Veteran had been diagnosed with erectile dysfunction.  The Veteran believed that his current erectile dysfunction began in his time in Vietnam.  It was noted that the Veteran was prescribed Levitra in 2011.  The Veteran also asserted that his current erectile dysfunction had its onset prior to any worsening of his back condition, including any radiculopathy symptoms.  The examiner opined that it was less likely than not that the Veteran's current erectile dysfunction was due to or a result of his service-connected lumbar spine disability.  The examiner explained that the Veteran reported that his current claimed erectile dysfunction had its onset prior to the onset of any neurologic or radiculopathy symptoms or worsening symptoms of his service-connected lumbar spine disability.  Furthermore, the Veteran was able to achieve and maintain an erection with successful intercourse when using medication, despite his ongoing symptoms and complaints of low back pain with radiculopathy.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for erectile dysfunction, to include as secondary to his service-connected lumbar spine disability.  There is no evidence of this condition during military service and the first post-service evidence is the Veteran's claim of 2011.  This is nearly 40 years after the Veteran's separation from active duty.  As already discussed, when considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue.  See Maxson, 12 Vet. App. at 459.  In the present case, the absence of any evidence of treatment or complaints of erectile dysfunction for nearly 4 decades tends to suggest that the Veteran has not suffered from chronic symptomatology since his military service.  As such, the preponderance of the evidence of record demonstrates that erectile dysfunction did not manifest during, or as a result of, active military service.  

The Board recognizes that the Veteran informed the October 2011 VA examiner that his current erectile dysfunction may have started while he was in Vietnam.  However, this assertion fails to demonstrate that service connection is warranted on a direct basis.  Initially, the Veteran simply asserted that he believed his current problems dated back to his time in Vietnam.  This is not supported by the evidence of record, however, as there is no evidence of this disability for approximately 39 years after separation from active duty.  In addition, the April 2010 VA examination report indicates that the Veteran did not suffer from erectile dysfunction at this time.  As such, the preponderance of the evidence of record contradicts the Veteran's assertion that his erectile dysfunction "may" have started during military service.  

Likewise, the preponderance of the evidence of record demonstrates that the Veteran's erectile dysfunction was not caused by or aggravated by his service-connected lumbar spine disability.  The October 2011 VA examiner concluded that it was less likely as not that the Veteran's erectile dysfunction was due to or a result of his service-connected lumbar spine disability.  The examiner explained that the Veteran reported that erectile dysfunction began before the onset of any neurologic symptoms or worsening symptoms of his lumbar spine disability.  Furthermore, the Veteran was sometimes able to achieve and maintain an erection with successful intercourse when using medication, despite ongoing lumbar symptomatology.  As such, the preponderance of the evidence of record demonstrates that the Veteran's erectile dysfunction is not secondary to his service-connected lumbar spine disability.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected lumbar spine disability, must be denied.




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Increased Rating Claims

Relevant Laws and Regulations

Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2012).  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  See also 38 C.F.R. §§ 4.1, 4.2 (2012).  As such, the Board has considered all of the evidence of record.  However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal.  

As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  12 Vet. App. 119, 126 (1999).  

Left Hand Disability

The Veteran contends that he is entitled to a disability evaluation in excess of 20 percent for his service-connected left hand disability.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's left hand disability has been no more than 20 percent disabling at any time during the pendency of this appeal.  

In a June 2009 rating decision, service connection for decreased range of motion of the little finger, the index finger, the long finger and the ring finger, all of the left hand, was granted.  Noncompensable disability evaluations were assigned under Diagnostic Codes 5229 and 5230, as of February 11, 2009.  A timely notice of disagreement as to the assigned ratings was received by VA in September 2009.  The noncompensable disability evaluations were continued in a September 2010 statement of the case, which the Veteran appealed to the Board in October 2010.  In a January 2012 rating decision, the RO determined that the previously assigned 0 percent disability evaluation was clear and unmistakable error.  The RO increased the Veteran's disability evaluation to 20 percent, combining all of his disabilities under Diagnostic Code 5307, effective as of February 11, 2009.  

Upon filing his original claim for service connection, the Veteran was afforded a VA examination of the left hand in April 2009.  It was noted that the Veteran sustained a laceration of the left hand while in Vietnam that traversed across the dorsal aspect of the left index, middle and ring fingers.  The left hand was the minor hand.  The Veteran also expressed a belief that there may have been some tendon involvement.  The Veteran described persistent stiffness with some decrease in grip strength, primarily involving the second, third and fourth fingers of the left hand.  He particularly noted some restriction and decreased range of motion across the metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints.  He also reported some stiffness, achiness and weakness resulting in some decrease in dexterity and dropping of various items over the last few years.  The Veteran also endorsed flare-ups, noting that cold weather or overuse could precipitate these.  He had increased pain with decreased motion and grip strength at these times.  Rest, activity and medication were noted to be alleviating factors.  

Examination revealed no ankylosis or deformity of any digit.  Grip strength was decreased and there was some decreased range of motion across the PIP joints of the left second, third and fourth fingers.  There was a gap of less than one-half inch between the left index, middle and ring fingers and the proximal transverse crease of the hand on maximal flexion.  Range of motion of the left MCP, PIP and distal interphalangeal (DIP) joints of the second, third, fourth and fifth fingers was 80 degrees.  The Veteran could touch his thumb to all fingers.  There was a mild increase in pain in the left hand without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss of motion upon repetitive use.  It was noted that the Veteran had not lost any work in the past 12 months due to his left hand disability, although it did result in significant effects due to decreased manual dexterity, problems with lifting and carrying and pain.  

The Veteran was afforded an additional VA examination of the left hand in November 2011.  The Veteran's history and reported symptomatology appears to have been copied verbatim from the previous examination report.  There was limitation of motion in all fingers with a gap between the fingertips and the proximal transverse crease of less than 1 inch.  Range of motion of the left MCP, and DIP joints of the second, third, fourth and fifth fingers was 80 degrees, and range of motion of the left PIP joint of the second, third, fourth and fifth fingers was 85 degrees.  There was also painful motion at extension of more than 30 degrees in the index and long fingers.  However, the Veteran could touch the tip of his thumb to all fingertips.  There was a mild increase in pain in the left hand without additional weakness, excess fatigability, incoordination, lack of endurance or additional loss of motion upon repetition.  The examiner concluded that this condition impacted the Veteran's ability to work due to increased pain, difficulty gripping with activity, some decreased range of motion and dropping items from the left hand.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 20 percent for his service-connected left hand disability at any time during the pendency of this claim.  The Veteran's disability is currently rated under Diagnostic Code 5307.  This code is used for rating muscle injuries to Group VII, which control flexion of the wrist and fingers, as well as flexors of the carpus and long flexors of the fingers and thumb.  38 C.F.R. § 4.73.  Under this code, a 20 percent disability evaluation is warranted for moderately severe impairment of this muscle group in the non-dominant hand.  The highest available disability evaluation of 30 percent is warranted for severe impairment of this muscle group.  Id.  

According to the April 2009 VA examination report, the Veteran had a number of symptoms, including stiffness with some decrease in grip strength.  There was also some limitation of motion, with flexion of the MCP, PIP and DIP joints to 80 degrees.  Normal flexion of the MCP joint is to 90 degrees, normal flexion of the PIP joint is to 100 degrees, and normal flexion of the DIP joint is between 70 to 80 degrees.  See 38 C.F.R. § 4.71a, Note (1).  Therefore, there are certainly objective symptoms of impairment.  However, there was no ankylosis or deformity of any digit.  The Veteran could also touch his thumb to all fingers and there was only a mild increase in pain upon repetitive use.  The Veteran also denied any lost work for the past 12 months.  Similar symptoms were noted upon examination in November 2011, with a slight increase in flexion of the PIP and DIP joints.  There was painful motion at more than 30 degrees of extension, but the Veteran was still able to touch the tip of his thumb to all fingertips.  Therefore, taken in its entirety, the Veteran's symptomatology represents a "moderately severe" disability rather than a "severe" disability, as the Veteran has retained significant motion in the left hand with only a mild increase in pain upon repetitive use.  

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion.  38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion.  38 C.F.R. § 4.40 (2012).  As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations.  38 C.F.R. § 4.45 (2012).  

According to the April 2009 VA examiner, the Veteran only had a mild increase in pain upon repetition without weakness or lack of endurance.  The November 2011 VA examiner also found a "mild" increase in pain.  Nonetheless, the Veteran has been capable of significant motion in each of these digits and it was noted in April 2009 that he had not missed any work due to this disability in the past 12 months.  As such, the evidence of record does not reflect functional loss of such severity as to warrant a disability evaluation in excess of 20 percent at any time during the pendency of this claim.  

The Board notes that the Veteran's digits were previously rated separately under Diagnostic Codes 5229 and 5230.  These codes are used to rate individual digits based on limitation of motion.  38 C.F.R. § 4.71a.  Initially, the Board notes that separate disability evaluations under these codes and Diagnostic Code 5307 are not warranted in this case.  Limitation of motion was a consideration in the 20 percent evaluation assigned under Diagnostic Code 5307.  As such, assigning a separate disability evaluation under either Diagnostic Code 5229 or 5230 would amount to pyramiding.  Pyramiding, the evaluation of the same disability or same manifestation of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  

The Board has also considered whether a higher total evaluation might be warranted if the Veteran were rated under Diagnostic Codes 5229 and 5230, rather than under Diagnostic Code 5307.  However, a compensable disability evaluation under Diagnostic Code 5229 requires a gap of one inch or more between the fingertip and the proximal transverse crease of the palm.  38 C.F.R. § 4.71a.  This gap was noted to be less than 0.5 inches upon examination in April 2009 and less than one inch upon examination in November 2011.  As such, a compensable rating under Diagnostic Code 5229 has not been warranted at any time during the pendency of this claim.  A compensable disability evaluation is not available under Diagnostic Code 5230.  As such, the change of diagnostic codes has resulted in a more favorable rating for the Veteran.  

The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation for his left hand disability.  The Veteran has described pain and immobility, as well as a worsening of his symptomatology during a period of flare-ups.  However, this symptomatology has been considered in the assigned 20 percent disability evaluation.  Also, as previously discussed, the Veteran only experienced a mild increase in pain upon repetitive use.  The examination reports also reflect that despite experiencing significant occupational impairment, the Veteran had not missed any work over the past 12 months as of April 2009.  As such, the Veteran's reported symptomatology fails to demonstrate that he is entitled to a higher disability evaluation at any time during the pendency of his claim.  

The rating schedule represents as far as practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b) (2012).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).  The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The Veteran's symptoms associated with his service-connected left hand disability include pain, limited motion, stiffness and weakened grip strength.  However, such impairment is contemplated by the rating criteria.  See 38 C.F.R. § 4.73, Diagnostic Code 5307.  This code is meant to rate impairment of the muscles that control the wrist and fingers.  In the present case, there is decreased muscle strength in the left hand with limitation of motion.  Therefore, the Veteran's symptomatology is fully considered by this code.  This code also allows for a higher disability evaluation upon a showing of worsening symptomatology.  Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.  

As a final matter, as this issue deals with the rating assigned following the original claim for service connection, consideration has been given to the question of whether the application of staged ratings as enunciated by the Court, in the case of Fenderson v. West, would be in order.  See 12 Vet. App. 119 (1999).  However, as outlined above, the Veteran's symptomatology has been no more than 20 percent disabling at any time during the pendency of this claim.  As such, staged ratings are not warranted.  

Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The claim of entitlement to a disability evaluation in excess of 10 percent for a left hand disability must be denied.

Radiculopathy of the Right Lower Extremity

The Veteran also contends that he is entitled to an initial disability evaluation in excess of 10 percent for his service-connected radiculopathy of the right lower extremity.  However, as outlined below, the preponderance of the evidence of record demonstrates that this disability has been no more than 10 percent disabling at any time during the pendency of this claim.  

The Veteran was originally granted service connection for radiculopathy of the right lower extremity in a November 2011 rating decision.  A 10 percent disability evaluation was assigned under Diagnostic Code 8520, effective as of May 6, 2011.  The Veteran appealed the assigned rating in a January 2012 notice of disagreement.  However, the rating was continued in a January 2012 statement of the case.  The Veteran appealed this rating to the Board in February 2012.  

The Veteran was afforded a VA examination of the neck in April 2010.  It was noted that at this time, the Veteran had no symptoms such as numbness, leg or foot weakness or unsteadiness.  His gait was also noted to be normal with no limitation to walking.  

The record also contains a VA examination report for the lumbar spine dated October 2010.  The Veteran complained of neurologic symptoms radiating into the left lower extremity.  However, he did not endorse symptomatology involving the right lower extremity at this time.  Examination revealed normal reflexes for right knee jerk and hypoactive reflexes for right ankle jerk.  Sensation was normal in the right lower extremity and a detailed motor examination was also deemed to be normal.  Muscle tone was also normal with no atrophy.  Radiculopathy of the left lower extremity was assigned at this time, but no diagnosis pertaining to the right lower extremity was assigned.  

The Veteran was afforded a VA examination for his radiculopathy in October 2011.  It was noted that he was suffering from radiculopathy of the right lower extremity that was diagnosed in 2011.  The Veteran reported that over the past year, he had the onset of worsening right lower extremity radiculopathy symptoms.  Specifically, the Veteran described pain and a burning sensation with some paresthesias radiating from the back into the anterior aspect of the right thigh.  It also radiated past the knee and down to the level of the midcalf on the right.  The Veteran also endorsed some mild decrease in strength, but he was primarily describing pain and discomfort that was persistent on a constant basis to the right lower extremity.  The Veteran also reported flare-ups with increased activities and he took Tylenol with some degree of benefit without side effects.  Otherwise, rest, activity limitation and stretching alleviated his pain.  The Veteran did not describe any periods of complete incapacity due to this condition, but he did describe occupational impairment including shortened work hours due to pain in the back and legs.  The Veteran did not require the use of any cane, brace or other orthopedic device for this condition.  

The examiner described the Veteran's subjective symptoms of pain to be moderate.  Paresthesias was noted to be mild and numbness was noted to not be present.  Muscle strength testing was between a 4/5 to a 5/5 in the right lower extremity and there was no muscle atrophy.  Deep tendon reflexes were hypoactive (1+) in the knee and absent in the ankle.  Sensation was normal throughout.  The examiner concluded that the Veteran suffered from incomplete paralysis of the sciatic nerve, the external popliteal nerve, the musculocutaneous nerve, the anterior tibial nerve, the internal popliteal nerve and the posterior tibial nerve that was mild in severity.  The anterior crural nerve and the internal saphenous nerve were normal.  The examiner concluded that this disability impacted the Veteran's ability to work by resulting in increased pain, shorter workdays, difficulty with prolonged weight bearing and ambulation and difficulty bending, lifting, twisting, carrying and climbing.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his radiculopathy of the right lower extremity at any time during the pendency of this claim.  The Veteran's radiculopathy is presently rated under Diagnostic Code 8520.  Under this code, incomplete paralysis of the sciatica nerve that his mild in severity is rated as 10 percent disabling.  38 C.F.R. § 4.124a.  A higher disability evaluation of 20 percent is warranted for incomplete paralysis that is moderate; a 40 percent disability evaluation is warranted for incomplete paralysis that is moderately severe; and a 60 percent evaluation is warranted for incomplete paralysis that is severe with marked muscular atrophy.  Id.  

The evidence of record demonstrates that the Veteran's radiculopathy has been appropriately characterized as mild throughout the pendency of his claim.  In the year prior to the establishment of service connection, there is no evidence of radiculopathy of the right lower extremity.  As of October 2011, the Veteran's was noted to have no numbness and only mild paresthesias in the right lower extremity.  There was also no muscular atrophy and muscle strength was rated as a 4/5.  While the examination report reflects diminished or absent reflexes in the knee and ankle, respectively, sensation was normal throughout and the Veteran did not require the use of any cane or orthotic device for this condition.  Also, while the Veteran did describe shortened work hours during his VA examination, he related this impairment to both his back disability and his right lower extremity, rather than just to the issue currently on appeal.  As such, the Veteran's disability is more appropriately characterized as "mild" rather than as "moderate."  

The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation for this condition.  In his January 2012 notice of disagreement, the Veteran asserted that a higher disability evaluation was warranted due to coldness and numbness of the leg.  The Board does not find this argument to be compelling.  His complaints of paresthesias were fully considered when assigning the 10 percent disability evaluation.  Furthermore, despite his complaints of numbness, an objective examination in October 2011 revealed full sensation throughout the lower extremity.  As such, the Veteran's testimony fails to demonstrate that he is entitled to a higher disability evaluation.  

The Board has again considered whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  However, the Veteran has described symptoms such as pain, coldness and numbness.  The record also demonstrates decreased reflexes in the right lower extremity.  These are all symptoms considered by 38 C.F.R. § 4.124a, Diagnostic Code 8520.  This code also allows for a higher disability evaluation upon a showing of worsening symptomatology.  Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.  

As a final matter, as this issue deals with the rating assigned following the original claim for service connection, consideration has been given to the question of whether the application of staged ratings as enunciated by the Court, in the case of Fenderson v. West, would be in order.  See 12 Vet. App. 119 (1999).  However, as outlined above, the Veteran's symptomatology has been no more than 10 percent disabling at any time during the pendency of this claim.  As such, staged ratings are not warranted.  

Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The claim of entitlement to a disability evaluation in excess of 10 percent for radiculopathy of the right lower extremity must be denied.


Shell Fragment Injury to Muscle Group XXII, from February 11, 2009, through January 29, 2010

Finally, the Veteran contends that he is entitled to a disability evaluation in excess of 30 percent for his status post-shell fragment injury of muscle group XXII with retained foreign body.  This rating was in effect from February 11, 2009, through January 29, 2010.  However, as outlined below, the preponderance of the evidence of record demonstrates that a higher disability evaluation was not warranted at any time during the pendency of this claim.  

According to a December 2008 VA treatment record, the Veteran had a lump in the right neck region that had been hurting him for the past 3 to 4 months.  

On January 29, 2010, the Veteran underwent surgery for the excision of a foreign body from his neck.  This was determined to be a shell fragment wound incurred during combat service.  A follow-up treatment note from February 2010 notes that the pain in the Veteran's neck was much improved.  

This disability was rated under Diagnostic Code 5322 for injuries to Muscle Group XXII.  38 C.F.R. § 4.73.  A 30 percent disability evaluation is the maximum schedular evaluation available under this code.  As such, a higher schedular evaluation is not possible.  

The Board has again considered whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  However, the Veteran has not described any symptoms during this time period that would warrant referral for extraschedular consideration.  The record reflects pain and tenderness.  He received the maximum disability evaluation during this type period, which contemplates severe impairment to the neck, to include the Veteran's pain and tenderness.  See 38 C.F.R. § 4.73, Diagnostic Code 5322.  Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to an evaluation in excess of 30 percent for a shell fragment wound of the neck, effective from February 11, 2009, to January 29, 2010, must be denied.  


ORDER

Service connection for a sleep disorder, also claimed as sleep apnea, to include as secondary to service-connected PTSD, is denied.  

Service connection for the residuals of a left knee injury is denied.  

Service connection for the residuals of a right knee injury is denied. 

Service connection for erectile dysfunction, to include as secondary to a service-connected lumbar spine disability, is denied.  

The claim of entitlement to an initial disability evaluation in excess of 20 percent for decreased range of motion of the little finger, ring finger, index finger and long finger, status post trauma and laceration to the left hand and fingers, is denied.  

The claim of entitlement to an initial disability evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied.  

The claim of entitlement to an evaluation in excess of 30 percent for status post shell fragment injury of muscle group XXII with retained foreign body, effective from February 11, 2009, to January 29, 2010, is denied.  




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REMAND

GERD

The Veteran contends that he is entitled to service connection for GERD.  Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran was afforded a VA gastrointestinal (GI) examination in November 2011.  Diagnoses of GERD and a hiatal hernia were confirmed.  It was noted that the Veteran contended that he suffered from GERD and GI bleeding secondary to medications he took to treat his service-connected spine disabilities.  The Veteran reported that he took ibuprofen on a regular basis to treat these conditions.  The examiner was unable to specifically find documentation prescribing this medication or the quantities and frequency with which this medication was taken.  The Veteran discontinued ibuprofen approximately two years prior to the examination and reported that he now treated his pain with Tylenol.  The examiner also reviewed an endoscopy from August 2011 that demonstrated a normal duodenum and normal esophagus with regards to any evidence of bleeds, ulcerations or inflammation.  A hiatal hernia was noted, however.  

The examiner opined that it was less likely as not that the Veteran's previous use of ibuprofen caused his current GERD.  The examiner conceded that it is well established that nonsteroidal anti-inflammatory medication such as ibuprofen can result in disruption of the gastrointestinal tract and contribute to gastritis, duodenitis or esophagitis, there was presently no evidence of inflammation of the esophagus, stomach or duodenum.  Also, the Veteran was no longer taking ibuprofen, having switched to Tylenol.  Tylenol was not known to result in GERD or a disruption of the stomach, esophagus or duodenal linings.  The examiner also noted that the Veteran presently had a hiatal hernia and that it was at least as likely as not that the Veteran's GERD and symptoms thereof were a result of this hernia.  There was also no evidence of a current GI bleed or ulcerative disease of the duodenum or evidence of esophagitis.  

The examiner further opined that it was less likely as not that the Veteran's GERD was a result of his scarring of the anterior neck, status post removal of a foreign body.  The examiner again explained that the Veteran had a hiatal hernia that was at least as likely as not the cause of his GERD.  Furthermore, GERD is typically the result of impairment of lower esophageal sphincter tone typically in the presence of increased stomach acidity.  This resulted in reflux of stomach contents that is often of more acidity into the lower esophagus resulting in symptoms of GERD.  The Veteran likely had increased acidity of the stomach, and due to his hiatal hernia, impairment of the lower esophageal sphincter tone that was likely resulting in his GERD.  Therefore, the examiner opined that it was less likely as not that the Veteran's scar of the neck contributed to, caused or aggravated the pathophysiology of his current GERD symptoms.  

The above examination report does not indicate whether the Veteran's use of medications such as ibuprofen in the past could have aggravated his GERD or other gastrointestinal symptomatology.  Service connection may also be granted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.  See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Therefore, the Veteran's claims folder should be forwarded to a VA physician with the appropriate knowledge to provide an opinion as to whether it is at least as likely as not that the Veteran's gastrointestinal disability(s) was aggravated as a result of medications taken to treat a service-connected disability.  See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

Increased Disability Rating for PTSD

The Veteran also contends that he is entitled to an initial disability evaluation in excess of 30 percent for PTSD.  Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The record reflects that the Veteran was last afforded a VA psychiatric examination to determine the current level of severity of his PTSD symptomatology in December 2009.  More than three years have elapsed since this examination.  In addition, the Veteran asserted upon treatment in August 2011 that he was "about at the end of his rope."  The mental health social worker evaluating the Veteran also determined that the Veteran's PTSD symptoms had in fact been aggravated by current stressors in his life.  

The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity).  In the present case, it has been more than three years since the Veteran's last examination.  Also, there is evidence of record suggesting a worsening in the Veteran's overall symptomatology.  As such, he should be scheduled for more recent VA examination to determine the current level of severity of his service-connected PTSD.  

In addition, the most recent record of VA medical treatment found in the Veteran's claims file is dated January 2012.  Records prepared since this time should be obtained and incorporated into the record.  

Coronary Artery Disease

The Veteran also contends that he is entitled to an initial disability evaluation in excess of 10 percent for his service-connected coronary artery disease.  Regrettably, a remand is necessary on this issue as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran was originally granted service connection for coronary artery disease in a February 2011 rating decision.  A 10 percent disability evaluation was assigned under Diagnostic Code 7005, effective as of February 11, 2009.  In May 2011, VA received a notice of disagreement from the Veteran regarding the assigned rating.  The 10 percent disability evaluation was continued in an August 2011 statement of the case which the Veteran appealed to the Board in September 2011.  

A December 2008 private treatment record reflects that the Veteran was suffering from coronary artery disease.  It was noted that the Veteran underwent a coronary angiogram and the placement of two drug-eluting stents in December 2008.  The Veteran was also seen by VA in April 2009 on an outpatient basis.  It was noted that he was experiencing some chest tightness with exertion but that he had not taken nitro with this discomfort.  He denied shortness of breath or pain at this time.  A July 2009 record does note two episodes of chest pain with exertion in the past two weeks.  However, he denied any chest pain at the time of treatment.  He also endorsed some dyspnea, but he denied any diaphoresis or nausea.  

A cardiology stress test was performed in September 2009.  This revealed METS of 10.10.  It was determined that his stress test was negative.  A myocardial perfusion test performed at this time revealed no evidence for ischemia or infarction.  Left ventricular ejection fraction (LVEF) was 58 percent.  It was determined that testing was normal.  A January 2010 X-ray also revealed the heart to be normal.  

The Veteran underwent a physical examination with VA in January 2010.  It was noted that in December 2008 he had shortness of breath and diaphoresis.  Since having stents put in, he denied recurrent of these symptoms.  He also denied any cardiovascular or pulmonary symptoms with activity.  He also denied any activity restrictions or limitations.  According to a July 2010 in-patient treatment record, the Veteran underwent a workup for previous syncopal episodes.  It was noted that the first episode was in April 2010.  An echocardiogram (ECG) was subsequently performed, revealing the left ventricle chamber size and systolic function to be normal.  There was also normal ventricular wall thickness with an ejection fraction of 60 to 65 percent.  The right ventricle was also normal in size and function.  

Despite the above treatment, the record does not reflect that the Veteran has been afforded a VA examination at any time during the pendency of his appeal to determine the severity of his symptomatology associated with his coronary artery disease.  Prior to appellate review, the Veteran must be afforded a VA examination in which all of his symptomatology is described in detail, including any impact that this disability may have on his overall employability.  

Cervical Spine Disability with Scarring

Finally, the Veteran asserts that he is entitled to a disability evaluation in excess of 10 percent for cervical spine degenerative disc disease and facet degenerative joint disease with paracervical muscle strain.  The Veteran has also argued that he is entitled to a disability evaluation in excess of 10 percent for scarring of the neck.  Regrettably, a remand is necessary on these issues as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran was last afforded a VA examination for his cervical spine disability in April 2010.  The Veteran submitted a statement to VA in May 2011 indicating that he continued to experience pain and difficulty with his neck.  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect.  See Caffrey, 6 Vet. App. at 381.  Since it has been approximately 3 years since the Veteran's last VA exanimation of the neck, and since he has continued to complain of associated symptomatology, he should be provided the opportunity to appear for a more recent VA examination before appellate review proceeds.  

The Veteran was also last afforded a VA examination for his scarring of the neck in April 2010.  For the same reasons noted in the preceding paragraph, he should be given the opportunity to appear for a new examination to determine the current level of severity of his scarring of the neck.  See id.  

TDIU

Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).  

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Presently, the Veteran is service-connected for numerous disabilities, for a combined disability evaluation of 5800 percent.  As such, the Veteran meets the percentage requirements laid out in 38 C.F.R. § 3.340.  

While the Veteran meets the percentage requirements for a grant of TDIU benefits, it is presently not clear whether the Veteran's service-connected disabilities in fact render him unable to obtain or maintain a substantially gainful occupation.  The record reflects that the Veteran works in farming.  According to the October 2011 VA examination report, the Veteran was forced to work shorter workdays due to pain in his lower extremities and his spine.  Nonetheless, the evidence appears to suggest that the Veteran was still operating a farm at this time.  The Veteran should be scheduled for a VA examination before an appropriate physician to determine whether his service-connected disabilities, when taken in their entirety, render him unable to obtain or maintain substantially gainful employment.  

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...."

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment."  And the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.

As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain records of VA medical treatment prepared since January 2012.  All records that are obtained must be incorporated into the claims file.  

2  The Veteran's claims file should be forwarded to an appropriate physician to determine the etiology of his gastrointestinal disabilities.  The Veteran's claims file and a copy of this remand must be made available for review by the examiner during or before the scheduled examination.  The Veteran does not need to be scheduled for an in-person examination unless deemed necessary by the examiner assigned to this case.  

The examiner should opine as to whether it is at least as likely as not that the Veteran's gastrointestinal disability(s) was aggravated by medications, such as ibuprofen and Tylenol, taken to treat his service-connected disabilities of the spine.  

The examiner should note that aggravation is defined for these purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation and identify that aspect of the disability which is due to aggravation. 

A complete rationale must be provided for all opinions offered.  

3.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected PTSD.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination.  The examination report should reflect review of these items.  

All indicated tests and studies should be performed, and the examiner is asked to describe in detail all symptomatology associated with the Veteran's service-connected PTSD.  The Veteran's lay statements regarding the severity of his symptomatology should also be considered and discussed.  

Finally, the examiner is asked to opine as to whether the Veteran's PTSD renders him unable to obtain or maintain substantially gainful employment.  If it is determined that the Veteran's PTSD alone does not result in unemployability, the examiner should opine as to whether PTSD, in conjunction with Meniere's syndrome, results in unemployability (or, if this is outside of the examiner's purview, the examiner should make a note of this).  A complete rationale must be provided for all opinions offered.  

4.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the level of severity of his service-connected coronary artery disease.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination.  The examination report should reflect review of these items.  

All indicated tests and studies should be performed, and the examiner is asked to describe in detail all symptomatology associated with the Veteran's service-connected coronary artery disease.  The Veteran's lay statements regarding the severity of his symptomatology should also be considered and discussed.  

Specifically, the examiner is asked to determine the Veteran's overall workload (in metabolic equivalents (METS)).  It should also be noted whether this results in dyspnea, fatigue, angina, dizziness, or syncope, or, cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray.  

It should also be determined whether there is evidence of left ventricular dysfunction, and if so, the ejection fraction percentage should be noted.  

Finally, the examiner is asked to discuss the overall impact of this disability on the Veteran's employability and ability to perform his activities of daily living.  

5.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the level of severity of his service-connected cervical spine disability.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination.  The examination report should reflect review of these items.  All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's cervical spine disability, including limitation of motion.  

The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the cervical spine.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use.  

Finally, the examiner should opine as to whether the Veteran suffers from objective manifestations of neurological symptomatology associated with his service-connected cervical spine disability.  

A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed.  

6.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the level of severity of his service-connected scar of the neck.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination.  The examination report should reflect review of these items.  

The examiner is asked to describe in detail all symptomatology associated with the Veteran's neck scarring.  This includes, but is not limited to, describing the size of the scar and indicating whether the scar is unstable, tender or resulting in functional loss.  A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed.  

7.  Finally, the RO should obtain an opinion from an appropriate physician to determine whether the Veteran's service-connected disabilities, taken in their entirety, render him unable to obtain or maintain substantially gainful employment.  The Veteran should either be scheduled for a separate examination, or, this opinion may be requested from one of the above examiners if deemed competent to make such a determination.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items.  

The Veteran's lay statements regarding his symptomatology must be considered and discussed and a complete rationale must be provided for all opinions offered.  

8.  The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry.  

9.  The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record.  If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto.  

The appellant 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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs