Citation Nr: 1315331	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  12-16 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial compensable evaluation for thoracic disc space narrowing.

3.  Entitlement to an initial evaluation in excess of 40 percent for loss of left superior pectoralis muscle.

4.  Entitlement to an initial compensable evaluation for left knee spur.

5.  Entitlement to an initial compensable evaluation for right knee spurs.

6.  Entitlement to an initial compensable evaluation for left foot Achilles and plantar spurs.

7.  Entitlement to an initial compensable evaluation for a right foot Achilles spur.

8.  Entitlement to an initial compensable evaluation for a bony density at the distal tip of the right index finger, status post near severance.

9.  Entitlement to an initial evaluation in excess of 20 percent for status post surgical mandible fracture with titanium plate fixation and therapeutic dental extractions with residual compromised dental function and pain due to radical neck surgery and chemotherapy/radiation.  

10.  Entitlement to an initial compensable evaluation for right eye corneal scar and bilateral eye floaters.

11.  Entitlement to an initial evaluation in excess of 30 percent for residual surgical neck scars, status post radical neck excision of squamous cell carcinoma.
  
12.  Entitlement to an initial compensable evaluation for residual chest scar, status post pectoral flap transposition surgery.

13.  Entitlement to an initial compensable evaluation for vocal cord paralysis.

14.  Entitlement to an initial compensable evaluation for laryngeal stenosis.

15.  Entitlement to an initial compensable evaluation for speech impairment as a residual of squamous cell carcinoma of base of tongue with loss of one-third of the tongue.

16.  Entitlement to a separate compensable evaluation for loss of sense of taste as a residual of squamous cell carcinoma of base of tongue with loss of one-third of the tongue. 

17.  Entitlement to an initial evaluation in excess of 30 percent for esophageal stenosis.

18.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

19.  Entitlement to service connection for benign prostatic hypertrophy (BPH).  

20.  Entitlement to service connection for calcified nodules of the right lung.

21.  Entitlement to service connection for a left hand disability, claimed as osteoarthritis.

22.  Entitlement to service connection for status post left fifth finger extensor tendon rupture.

23.  Entitlement to service connection for a right elbow disability, claimed as osteoarthritis.

24.  Entitlement to service connection for radiodermatitis of the face

25.  Entitlement to service connection for sinusitis.

26.  Entitlement to service connection for gastroesophageal reflux disease (GERD), also claimed as esophagitis with polyps and as colitis bowel condition.

27.  Entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disc disease, status post resection radical neck and oral cavity.


REPRESENTATION

Appellant represented by:	Paul M. Goodson, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from July 1984 to March 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The August 2010 rating decision granted service connection for all of the increased ratings claims that are listed above, and assigned the current ratings that the Veteran is seeking to increase, effective March 16, 2010.  This decision also denied all of the service connection claims that are listed above.  

As will be discussed in further detail below, the Board has found that, in addition to marked speech impairment, the Veteran's service-connected squamous cell carcinoma of base of tongue with loss of one-third of the tongue is also manifested by complete loss of sense of taste.  The Board notes that the loss of sense of taste is a direct result of the squamous cell carcinoma and loss of one-third of the Veteran's tongue and thus considers the loss of sense of taste to be part and parcel of the original increased rating claim.  The Board thus finds it appropriate to consider at this time whether a compensable rating is warranted for loss of sense of taste, and it has thus separated that particular issue out accordingly, as reflected in the Issues listings above.

In January 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.  The Board notes that the Veteran limited his hearing testimony to five of the issues that are currently before the Board.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future adjudication of this appellant's case should take into consideration the existence of this electronic record.

The issue of entitlement to separate disability ratings for neurologic impairment of the face and neck as secondary to the Veteran's in-service anterior left neck radical resection has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 

The issue of entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disc disease, status post resection radical neck and oral cavity, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity.   

2.  The Veteran's thoracic spine disc space narrowing is manifested by full range of motion with no motion lost due to pain, weakness, lack of endurance, fatigue, or incoordination; it is not manifested by muscle spasm, guarding, or localized tenderness resulting in abnormal gait or abnormal spinal contour or vertebral body fracture; and there is no x-ray evidence of arthritis. 

3.  The Veteran's loss of the left superior pectoralis muscle is characterized as a severe disability of the dominant side.

4.  The Veteran's left knee spur is manifested by full range of motion, no instability, and no motion lost due to pain, weakness, lack of endurance, fatigue, or incoordination.

5.  The Veteran's right knee spurs are manifested by full range of motion, no instability, and no motion lost due to pain, weakness, lack of endurance, fatigue, or incoordination.

6.  The Veteran's left foot Achilles and plantar spurs are less than moderately disabling.

7.  The Veteran's right foot Achilles spur is less than moderately disabling.

8.  The bony density at the distal tip of the Veteran's right index finger, status post near severance, is characterized by full range of motion and full form and function.

9.  The Veteran's status post surgical mandible fracture, with titanium plate fixation and therapeutic dental extractions and with residual compromised dental function and pain due to radical neck surgery and chemotherapy/radiation, is manifested by an inter-incisal range that is limited to 25 millimeters on temporomandibular articulation.  

10.  The Veteran's right eye corneal scar and bilateral eye floaters are manifested by correctable visual acuity to 20/20; they are not manifested by impairment of visual field; incapacitating episodes; or irregular, duplicated, enlarged, or diminished image caused by spotting.

11.  The Veteran's residual surgical neck scars, status post radical neck excision of squamous cell carcinoma, are manifested by four of the eight characteristics of disfigurement.

12.  The Veteran's residual chest scar, status post pectoral flap transposition surgery, covers an area of less than 39 square centimeters and is not unstable or painful.

13.  The Veteran's vocal cord paralysis is manifested by paralysis of the left vocal cord and hoarseness, but not by inflammation of cords or mucus membrane; thickening or nodules of cords; polyps; submucus infiltration; or pre-malignant changes on biopsy.   

14.  The Veteran's laryngeal stenosis is not manifested by Forced Expiratory Volume in one second (FEV-1) of 80 percent predicted or lower.  

15.  The Veteran's squamous cell carcinoma of base of tongue, with loss of one-third of the tongue and speech impairment, is manifested by marked speech impediment.

16.  The Veteran's squamous cell carcinoma of base of tongue, with loss of one-third of the tongue, is manifested by complete loss of sense of taste.

17.  The Veteran's esophageal stenosis does not limit him to a liquid diet.

18.  The Veteran's bilateral hearing loss is manifested by no more than level I hearing loss in the right ear and no more than level I hearing loss in the left ear.

19.  The competent and probative evidence of record reflects that the Veteran has a current diagnosis of BPH that is etiologically related to his military service.  

20.  The competent and probative evidence of record reflects that the Veteran has a current diagnosis of calcified nodules of the right lung that is etiologically related to his military service.  

21.  The Veteran is not shown to be suffering from a left hand disability, to include osteoarthritis, that is due to any event or incident of his service.

22.  The Veteran is not shown to be suffering from status post left fifth finger extensor tendon rupture that is due to any event or incident of his service.

23.  The Veteran is not shown to be suffering from a right elbow disability, to include osteoarthritis, that is due to any event or incident of his service.

24.  The Veteran is not shown to be suffering from radiodermatitis of the face that is due to any event or incident of his service.

25.  The Veteran is not shown to be suffering from sinusitis that is due to any event or incident of his service.

26.  The competent and probative evidence of record reflects that the Veteran has a current diagnosis of GERD that is etiologically related to his military service.  


CONCLUSIONS OF LAW

1.  The criteria for a rating of 50 percent, but no higher, for PTSD are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for assignment of an initial compensable rating for thoracic disc space narrowing have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012).

3.  The criteria for entitlement to an initial disability rating in excess of 40 percent for loss of left superior pectoralis muscle have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.56, 4.73, Diagnostic Code 5302 (2012).

4.  The criteria for assignment of an initial compensable rating for a left knee spur have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2012).

5.    The criteria for assignment of an initial compensable rating for right knee spurs have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2012).

6.  The criteria for an initial compensable disability rating for left foot Achilles and plantar spurs have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2012).

7.  The criteria for an initial compensable disability rating for a right foot Achilles spur have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2012).

8.  The criteria for entitlement to an initial compensable disability evaluation for a bony density at the distal tip of the right index finger, status post near severance,  have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5229 (2012).

9.  The criteria for entitlement to an initial rating in excess of 20 percent for status post surgical mandible fracture, with titanium plate fixation and therapeutic dental extractions and with residual compromised dental function and pain due to radical neck surgery and chemotherapy/radiation, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.150, Diagnostic Codes 9903, 9905 (2012).

10.  The criteria for entitlement to an initial compensable disability evaluation for right eye corneal scar and bilateral eye floaters have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.75, 4.76, 4.76a, 4.77, 4.78, 4.79, Diagnostic Codes 6000, 6011 (2012).

11.  The criteria for an initial 50 percent rating, but no higher, for residual surgical neck scars, status post radical neck excision of squamous cell carcinoma, have been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7800 (2012).

12.  The criteria for entitlement to an initial compensable disability rating for residual chest scar, status post pectoral flap transposition surgery, have not been met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7805 (2012).

13.  The criteria for entitlement to an initial compensable disability rating for vocal cord paralysis have not been met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Codes 6516, 6519 (2012).
 
14.   The criteria for entitlement to an initial compensable disability rating for laryngeal stenosis have not been met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Code 6520 (2012).

15.  The criteria for entitlement to an initial 30 percent disability rating, but no higher, for squamous cell carcinoma of base of tongue, with loss of one-third of the tongue and speech impairment, have been met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7202 (2012).

16.  The criteria for entitlement to an initial separate 10 percent rating for squamous cell carcinoma of base of tongue with loss of one-third of the tongue, based on complete loss of sense of taste, have been met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.187a, Diagnostic Code 6276 (2012).

17.  The criteria for entitlement to an initial disability rating in excess of 30 percent for esophageal stenosis have not been met.  38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7203 (2012).

18.  The criteria for an initial compensable disability rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).

19.  Service connection for BPH is warranted.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

20.  Service connection for calcified nodules of the right lung is warranted.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

21.  A left hand disability was not incurred in or aggravated by active service and may not be presumed to have been caused or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

22.  A left fifth finger extensor tendon rupture was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

23.  A right elbow disability was not incurred in or aggravated by active service and may not be presumed to have been caused or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

24.  Radiodermatitis of the face was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

25.  Sinusitis was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

26.  Service connection for GERD is warranted.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Summary

Considering the length of the following decision, the Board will summarize the dispositions that it has reached below.  

The Board has granted increased ratings for the following claims: 

      (1) The rating for PTSD has been increased from 30 percent to 50 percent;

(2) the rating for residual surgical neck scars, status post radical neck excision of squamous cell carcinoma, has been increased from 30 percent to 50 percent;

(3) the rating for squamous cell carcinoma of base of tongue, with loss of one-third of the tongue and speech impairment, has been increased from 0 percent to 30 percent; and

(4) the Board has granted a new 10 percent disability rating for the Veteran's complete loss of sense of taste as a residual of his squamous cell carcinoma of base of tongue with loss of one-third of the tongue .  

All of these increased ratings have been assigned effective from March 16, 2010, which was the original effective date for the grant of each of these claims. 

The Board has granted service connection for the following disabilities:

      (1) BPH; 

      (2) calcified nodules of the right lung; and 

      (3) GERD.

The Board has denied increased ratings for the following disabilities, and their disability ratings have been listed in parenthesis: 

      (1) thoracic disc space narrowing (0 percent); 

      (2) loss of left superior pectoralis muscle (40 percent); 

      (3) left knee spur (0 percent); 

      (4) right knee spurs (0 percent); 

      (5) left foot Achilles and plantar spurs (0 percent); 

      (6) a right foot Achilles spur (0 percent); 

(7) a bony density at the distal tip of the right index finger, status post near severance (0 percent); 

(8) status post surgical mandible fracture, with titanium plate fixation and therapeutic dental extractions and with residual compromised dental function and pain due to radical neck surgery and chemotherapy/radiation (20 percent); 

      (9) right eye corneal scar and bilateral eye floaters (0 percent); 

(10) residual chest scar, status post pectoral flap transposition surgery (0 percent);

      (11) vocal cord paralysis (0 percent); 

      (12) laryngeal stenosis (0 percent); 

      (13) esophageal stenosis (30 percent); and 

      (14) bilateral hearing loss (0 percent). 

The Board has denied service connection for the following disabilities: 

      (1) left hand disability, claimed as osteoarthritis; 

      (2) status post left fifth finger extensor tendon rupture; 

      (3) a right elbow disability, claimed as osteoarthritis; 

      (4) radiodermatitis of the face ; and 

      (5) sinusitis.

The Board has remanded the following claim for further development:

(1) Entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disc disease, status post resection radical neck and oral cavity.

II.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)).

The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Dingess, supra; Pelegrini, supra.

For initial rating claims, where, as here, entitlement to disability benefits has been granted and an initial rating has been assigned, the original claim has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for entitlement to benefits has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The Board finds that the notification requirements of VCAA have been satisfied in this case.  In this regard, the Board notes that the Veteran was provided with proper VCAA notice in December 2009 when he filed his claims.  In this notice, the RO advised the appellant of the evidence needed to substantiate all of his service connection claims, including the service connection claims that were subsequently denied in the August 2010 rating decision and those that were granted in the August 2010 rating decision.  The Veteran was advised of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA.  This notice further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims, pursuant to the Court's holding in Dingess, supra.  

The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case.  38 U.S.C.A. §§ 5103 and 5103A.  Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder.  In particular, the Board notes that the RO obtained the Veteran's service treatment records, VA medical records, and private medical records.

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  

In the case at hand, the Veteran underwent VA examinations in connection with all of his claims in January 2010.  The Board finds that the resulting examination reports are adequate for the purpose of determining the claims that are decided herein.  These examination reports reflect that the examiners reviewed the claims folder, including the Veteran's service treatment records.  During the examinations, the examiners elicited from the Veteran his history of complaints and symptoms, conducted thorough examinations, and provided clinical findings detailing the examination results.  Moreover, the Board finds that the information that was provided in the examination reports in connection with the service connection claims that were subsequently granted is sufficient for the purpose of assigning the appropriate disability ratings.  For these reasons, the Board concludes that the reports of the January 2010 VA examinations provide adequate bases for a decision.  

The evidence of record provides sufficient information to adequately evaluate the claims.  Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).


III.  Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).



A.  PTSD

The Veteran's PTSD is currently assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).

PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders.  A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  Id.

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

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

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

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

With regard to the Global Assessment of Functioning (GAF) scores assigned, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995).  According to the American Psychiatric Association's DSM-IV, GAF scores from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). 

The January 2010 VA (QTC) psychiatric examination report notes that the Veteran was referred for evaluation of insomnia, anger, depression and anxiety.  He reported that he has problems with irritability.  He reported periods of depression, during which he has low appetite, hopelessness, anhedonia.  He denied ever having suicidal ideation.  He denied any symptoms consistent with psychotic illness or panic disorder.  He reported his irritability had worsened, reporting that, six months ago, he had an incident with another individual in a parking lot in which he had gotten physical and that he also became physical with one of his pets around that time.  He experiences anxiety attacks.  He is treated with medication for insomnia and depression, which he felt has helped him at night and helped him to be calmer.  The Veteran denied any psychiatric hospitalizations or emergency room visits for psychiatric symptoms.

The Veteran has been married for 25 years, and he has a son and a daughter.  He described his marriage as strained secondary to his long course of treatment for his cancer, finances, and the process of the Medical Board activities.

The Veteran used to golf, but he had not golfed in the last year.  He also enjoys food, but he no longer has taste after his cancer treatment, so his enjoyment is limited to sight and smell of food.

On examination, the Veteran made good eye contact.  His speech was slightly dysarthric (he has had a pectoral flap which involved reconstruction of his mouth and throat).  However he spoke with normal volume and normal rate.  There was no suicidal or homicidal ideation.  There were no auditory or visual hallucinations.   His mood was okay.  His affect was constricted.  His thought process was linear.  He was alert and oriented times four.  His fund of knowledge, insight, and judgment were good.  His memory and concentration were intact.  The examiner diagnosed PTSD and assigned a GAF score of 70.

The examiner opined that the Veteran's psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally functioning satisfactorily with routine behavior, self-care and normal conversation.

The Veteran had no difficulty in performing activities of daily living.  He did not have difficulty with understanding and following simple, complex, or detailed instructions.  The examiner found that the Veteran was able to establish and maintain effective work/school and social relationships.  He did not appear to pose a threat of persistent danger or injury to self or others.

An April 2010 VA mental health consultation record notes that the Veteran reported that, when he got angry, he usually did not remember what he had done, and that usually he had hit someone.  He was irritable all of the time with his family.  It notes that the Veteran resented his sister and was not close with his stepbrother and stepsister.  It was noted that his relationship with his father was getting better.  On examination, mood was flat.  Affect was congruent with mood and appropriate to topic.  Speech was normal in rate, volume, and productivity.  Thoughts were logical and goal-directed without evidence of thought disorder or delusion.  There was no suicidal or homicidal ideation, and there were no auditory or visual hallucinations.  The Veteran was not considered to be a danger to himself or to others.  The Veteran had poor concentration.  He had a lot of psychomotor restlessness but no slowing.  He was afraid he would lose his temper and kill someone.  He was unemployed.  The examiner diagnosed PTSD and intermittent explosive disorder with dissociative amnesia features.  She assigned a GAF score of 55.  

VA mental health treatment records generally describe the Veteran as being mildly to moderately depressed with congruent affect.  He is described as being well-groomed and fully oriented and denying current suicidal or homicidal ideation and auditory and visual hallucinations.  A January 2012 record notes that he endorsed daily irritability and angry outbursts (including verbal aggression and throwing his belongings), and that he was able to work full-time.

An October 2012 VA medical record describes the Veteran as irritable, tense, depressed, and anxious.  He reported very poor frustration tolerance and limited impulse control.  He denied auditory or visual hallucinations and suicidal or homicidal ideation, plan, and intent.  There was no evidence of delusions.  The Veteran had a neat appearance.  His speech was normal and behavior was appropriate and cooperative.  Affect was blunted.  He was alert and properly oriented.  Concentration, insight, judgment, memory, intelligence, and abstraction were normal.  The Veteran was assigned a GAF score of 55.

At his January 2013 Board hearing, the Veteran testified that his PTSD symptoms had worsened in the last couple of years.  He reported that he is enrolled in a treatment program at the Fayetteville VA Medical Center and that he is "on a significant amount of meds."  He reported that his doctor had increased his medications due to his inability to sleep, his anxieties, and his nervousness.  He reported that he was working full-time, but that he had been finding it increasingly difficult to work and he had been taking a lot of sick leave.  He reported that it was becoming harder to focus and his nightmares were increasing.  He reported that he used to have a good memory, but he now has to write things down.  He endorsed having trouble remembering the names of friends or family members, especially within the last six months.  He reported that he has trouble getting places and that he has to use his GPS even when he is in familiar places.  He reported that he has isolated himself from his family.

The Board finds that the overall level of impairment to the Veteran's functioning as demonstrated by the above records most closely approximates the 50 percent rating criteria.  Thus, a 50 percent rating for the entire period on appeal is warranted.  Acknowledging that the criteria listed in the general rating formula are not exhaustive, the Board notes that the above evidence demonstrates the following 30 percent rating symptomatology: depressed mood; anxiety; mild memory loss (such as forgetting names, directions, recent events); panic attacks; and chronic sleep impairment.  Several medical treatment records reflect depression, anxiety, panic attacks, and chronic sleep impairment.  The Veteran described symptoms of mild memory loss at his Board hearing, as he testified that he forgets names of friends and family members and gets lost without his GPS, even if he is familiar with the area in which he is driving.

The Board further finds that the following 50 percent symptomatology are demonstrated in the record: flattened affect; panic attacks more than once a week; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); and difficulty in establishing and maintaining effective work and social relationships.  Several records as described above note restricted affect and panic attacks.  With respect to impairment of short- and long-term memory, he testified at his hearing that he has to write things down or they will not happen.  He demonstrates difficulty in establishing and maintaining effective work and social relationships to the extent that he has described his marriage as "strained" and has isolated himself from his family.  

The Board finds that, while several of the 50 percent rating criteria are not satisfied in this case, specifically those involving impairment in speech, understanding complex commands, judgment, and abstract thinking, there is sufficient evidence of impairment consistent with the 70 percent rating criteria to render the Veteran's overall level of impairment most consistent with a 50 percent disability rating.  

Specifically, the 70 percent rating criteria of impaired impulse control (such as unprovoked irritability with periods of violence) and difficulty in adapting to stressful circumstances (including work or a work like setting) are shown by the record.  The Veteran's overall irritability and impaired impulse control are described in many of his records as being of deep concern.  As noted above, the impaired impulse control has manifested in his getting into a fight with someone in a Wal-Mart parking lot, getting physical with one of his pets, having angry outbursts, throwing things, and being afraid that he will lose his temper and kill someone.  During the period contemplated by this appeal, the Veteran has described experiencing increasing difficulties with work, including difficulty focusing and having to use more sick leave.  

Generally, however, the criteria for a rating of 70 percent or higher are not satisfied.  Of the rating criteria that are listed in the Rating Schedule, the following 70 percent rating criteria are not demonstrated by the record: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene; and the inability to establish and maintain effective relationships.  The record notes that the Veteran has always denied suicidal ideation.  His PTSD has not led to any difficulties in communicating.  He has always been fully oriented and has arrived to his medical appointments looking neat and well-groomed.  While he has shown a great difficulty in establishing and maintaining effective work and social relationships, he has not shown an inability to do so, as evidenced by his long marriage, the fact that he reported at his Board hearing that he has friends, and the April 2010 record indicating an improving relationship with his father.  

None of the 100 percent rating criteria as described above is suggested by the record.  

Furthermore, the Board finds that the GAF scores that have been assigned to the Veteran have generally been consistent with the level of disability that has been described in the Veteran's medical records.  In particular, the Board notes that the Veteran has been assigned GAF scores of 55 at several points in the course of this appeal.  As noted above, GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers).  This description of the severity of the Veteran's symptomatology indicates a level of impairment that supports the assignment of a 50 percent disability rating.  

Thus, because most of the Veteran's symptomatology does not rise to the 70 percent or 100 percent levels of severity, and because the GAF scores do not support a higher rating, the Board finds that a rating of 70 percent or 100 percent is not warranted.

In short, the Veteran's PTSD most closely approximates the 50 percent criteria, as contemplated by 38 C.F.R. § 4.7.  Thus, the Board finds that a 50 percent rating for PTSD is warranted.

B.  Musculoskeletal Disabilities

Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis, when substantiated by x-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

In the absence of limitation of motion, a 10 percent rating is to be assigned when there is x-ray evidence of involvement of 2 of more major joints or 2 or more minor joint groups.  A 20 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  Note (1) provides that the 10 percent and 20 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion.  Note (2) provides that the 10 percent and 20 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2012).  See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995).

Another intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012).

Although pain may cause a functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

Ratings assigned under some of the diagnostic codes that are at issue below may vary depending on whether a veteran's major (dominant) or minor (non-dominant) extremity is being rated.  In the case at hand, the Veteran is left-handed.  His left extremities are thus treated as his major extremities, and his right extremities are considered his minor extremities, for purposes of this decision.

1.  Thoracic Disc Space Narrowing

The Veteran has claimed entitlement to an initial compensable disability rating for his thoracic disc space narrowing.  This disability is currently rated as degenerative arthritis of the spine under 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012).

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine.  This formula applies to disabilities of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  

Under the general rating criteria for disabilities of the spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine.

Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes.  

38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243(2012).

There is an alternative set of rating criteria based on intervertebral disc syndrome, which are listed under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  Because these ratings are not applicable in the case at hand, they will not be further discussed herein.

According to the January 2010 VA examination report, the Veteran reported that his thoracic spine disability manifests in stiffness, fatigue, spasms, decreased motion, paresthesias, numbness, and weakness, and that his pain is reduced by taking analgesics.

The Veteran had full range of motion in all directions (flexion, extension, left and right lateral flexion, and left and right rotation) on examination.  Pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion after repetitive use.  Position of the head and curvature of the spine were within normal limits. There was symmetry in appearance and spinal motion.  There was no evidence of radiation pain on movement, weakness, muscle spasm, tenderness, guarding, atrophy of limbs or change in muscle tone.  Review of the Veteran's history and physical examination did not identify an intervertebral disc syndrome as evident by bowel, bladder, or sexual dysfunction.  Minimal disc space narrowing of the thoracic spine was found on x-ray, but otherwise no fractures or other abnormalities were identified.

Based on the above, the Board finds that a compensable rating is not warranted for range of motion limitation, as the Veteran had full range of motion on examination and his motion was not found to be further limited by pain, weakness, lack of endurance, fatigue, or incoordination on repetitive use.  Nor does the Veteran satisfy any of the other rating criteria for a compensable rating under Diagnostic Code 5242, as there was no muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spinal contour, or vertebral body fracture.  Additionally, in the absence of x-ray evidence of arthritis, a 10 percent rating is not available under Diagnostic Code 5003.

Furthermore, in the absence of neurologic impairment, separate ratings for any such disabilities are not warranted.  In the absence of intervertebral disc syndrome, evaluation of the Veteran's disability under the intervertebral disc syndrome rating criteria is not warranted.

The Board thus finds that the preponderance of the evidence is against assigning an initial compensable rating under Diagnostic Code 5242, or assigning separate compensable ratings for neurologic and other manifestations of disability under applicable diagnostic codes.  The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990).  Accordingly, the claim must be denied.

2.  Left Superior Pectoralis Muscle

The Veteran has claimed entitlement to an increased rating for loss of left superior pectoralis muscle, currently evaluated as 40 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5302 (2012).  Diagnostic Code 5302 assigns a maximum 40 percent rating for severe disability of Muscle Group II of the dominant extremity.  

As noted above, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca, supra.  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  Because 40 percent is the highest rating allowed under Diagnostic Code 5302, however, a rating in excess of 40 percent for functional limitations associated with the Veteran's loss of left superior pectoralis muscle is not available under the provisions of 38 C.F.R. §§ 4.40 and 4.45.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that, because a veteran was already receiving the maximum rating available for limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 did not allow for a higher evaluation).  

The Board notes that no other diagnostic code for muscle groups of the "Shoulder Girdle and Arm" assigns a rating in excess of 40 percent.  See 38 C.F.R. § 4.73, Diagnostic Codes 5301 through 5309.  Therefore, a rating in excess of 40 percent for loss of left superior pectoralis muscle is not warranted.

3.  Left and Right Knee Spurs

The Veteran has claimed entitlement to initial compensable disability ratings for service-connected left and right knee spurs.  Each of these disabilities is currently assigned a 0 percent rating under the built-up Diagnostic Code 5260-5015, which indicates that the disability of new, benign bone growths has been rated based on limitation of flexion of the knee.

Diagnostic Code 5015 itself more broadly provides that benign bone growths are to be rated based on limitation of motion of the affected part, as degenerative arthritis under Diagnostic Code 5003.  38 C.F.R. § 4.71a.  

Diagnostic Codes 5260 and 5261 rate limitation of flexion and extension of the knee joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261.  In VAOPGCPREC 9-2004 (2004); 69 Fed. Reg. 59,990 (2004), the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension.

The Rating Schedule provides that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion.  38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent evaluation, and flexion limited to 15 degrees warrants a 30 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation, extension limited to 10 degrees warrants a 10 percent evaluation, extension limited to 15 degrees warrants a 20 percent evaluation, extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and extension limited to 45 degrees warrants a 50 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

VA's General Counsel has held that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257.  VAOPGCPREC 23-97 (1997); 62 Fed. Reg. 63,604 (1997).  When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis.  If the veteran does not at least meet the criteria for a zero-percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

The January 2010 VA examination report notes that the Veteran reported symptoms of weakness, stiffness, giving way, lack of endurance, and tenderness.  He had difficulty in standing from a squatting position.  His functional impairment was described as being characterized by a reduced ability to perform in occupational demands and daily living. 

On examination, the left and right knees were within normal limits without significant alteration in form or function.  There was no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, deformity, guarding of movement, malalignment, or drainage.  There was no evidence of recurrent subluxation, instability, locking, pain, joint effusion, or crepitus.  No fixed position was identified.  

The examiner noted normal extension to 0 degrees and normal flexion to 140 degrees in both knees.  There was no degree of pain after any range of motion bilaterally.  Repetitive range of motion was normal bilaterally.  There was no addition degree of limitation after repetitive use.   Pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion.  There was no varus/valgus instability, and the Drawer and McMurray tests were negative.  

A radiology report revealed a small spur adjacent to the medial femoral condyle and small cortical cyst involving the lateral aspect of the distal femoral condyle on left and right knees.  

Based on the above, the Board finds that an initial compensable rating is not warranted for either of the Veteran's knees.  As noted above, both knees have full range of motion, even when taking into account factors such as pain, weakness, lack of endurance, fatigue, or incoordination on repetitive use.  Thus, a compensable rating based on limitation of motion is not warranted for either knee under Diagnostic Codes 5260 and 5261.  

Furthermore, the examination report expressly notes no finding of instability on testing.  Therefore, a compensable rating may not be assigned for either knee disability pursuant to Diagnostic Code 5257.

The Board has considered whether a compensable rating may be awarded under the portion of Diagnostic Code 5003 that assigns a 10 percent rating in the absence of limitation of motion when there is x-ray evidence of involvement of two of more major joints or two or more minor joint groups.  The Board cannot assign such a rating, however, as the Veteran's bilateral knee disabilities have been characterized as new, benign bone growths under Diagnostic Code 5015 and, as indicated above, this particular provision of Diagnostic Code 5003 cannot be applied to disabilities that have been identified under Diagnostic Code 5015.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (2).  Furthermore, the Board notes that a bone spur is not, itself, arthritis, and that the Veteran's radiology reports do not reflect the presence of arthritis in either knee.  Thus, a rating directly under Diagnostic Code 5003 is not even available.  

Finally, the Board has considered whether the Veteran may qualify for a compensable rating under another diagnostic code for rating disabilities of the knee, which are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263.  The Board finds however, that in the absence of ankylosis (Diagnostic Code 5256), dislocated semilunar cartilage (Diagnostic Code 5258), removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), and genu recurvatum (Diagnostic Code 5263), a compensable rating cannot be assigned for disability of either knee.  

The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  Gilbert, supra.  Accordingly, the claims of entitlement to initial compensable ratings for spurs of the left and right knees must both be denied.

4.  Left and Right Feet

The Veteran has requested higher initial ratings for left foot Achilles and plantar spurs and a right foot Achilles spur.  Each of these disabilities is currently assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5015.

At his January 2010 VA examination, the Veteran described his pain as aching, burning, and sharp, associated with numbness and tingling of the feet and with a severity of 7/10.  He has taken Percocet and Celebrex in therapy of the condition with benefit.  In terms of functional impairment, he was described as being unable to tolerate prolonged standing during all activities.

There was no sign of painful motion, edema, disturbed circulation, weakness, atrophy of musculature, or tenderness.  Arches were present.  Toenails were normal in form and function.  Palpation of the plantar surface did not reveal any tenderness, and the Achilles tendons showed good alignment.  There was no evidence of claw feet, hammertoes, hallux valgus, or hallux rigidus.  Flexion and dorsiflexion of the toes did not induce pain, and there was no evidence of Morton's metatarsalgia.  Radiology diagnostics indicated the presence of an early plantar calcaneal spur on the left foot and of posterior Achilles spurs on the left and right feet. 

As noted above, Diagnostic Code 5015 directs that benign bone growths be rated as degenerative arthritis based on limitation of motion of the affected part.  In this case, loss of motion of the foot is rated as "foot injuries, other," under 38 C.F.R. § 4.71a, Diagnostic Code 5284.  Under this diagnostic code, a 10 percent rating is assigned for moderate disability, a 20 percent rating is assigned for moderately severe disability, and a 30 percent rating is assigned for severe disability.  

The Board notes that words such as 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2012).  Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012).

Based on the above evidence, the Board concludes that a compensable rating is not warranted for either foot.  The Board finds that the lack of foot symptomatology that was found on examination, in particular the lack of painful motion, edema, disturbed circulation, weakness, atrophy of musculature, or tenderness, does not rise to the level of "moderate" impairment of either foot.  Nor does the Board find that the Veteran's reported inability to tolerate prolonged standing during all activities reflects a moderate level of functional impairment to justify a compensable rating for either foot.  Thus, the Board finds that Diagnostic Code 5284 does not allow for the assignment of a compensable disability rating for either foot in this case.

As noted above, the degenerative arthritis provisions of Diagnostic Code 5003 that apply to the assignment of ratings for disabilities that are established by x-ray but are not manifested by limitation of motion do not apply to benign bone growths under Diagnostic Code 5015.  Furthermore, the Board notes that the radiology report of record notes spurring, but it does not note arthritis.  Therefore, the assignment of a rating directly under Diagnostic Code 5003 is not available.

The Board has also considered whether a compensable rating may be assigned for either foot disability under a different diagnostic code.  Disabilities of the foot are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284.  The Board notes, however, that the January 2010 examination report expressly notes that the Veteran does not have flatfoot (Diagnostic Code 5276), weak foot (Diagnostic Code 5277), claw foot (Diagnostic Code 5278), Morton's metatarsalgia (Diagnostic Code 5279), hallux valgus (Diagnostic Code 5280), hallux rigidus (Diagnostic Code 5281), and hammer toe (Diagnostic Code 5282).  Malunion or nonunion or metatarsal bones (Diagnostic Code 5283) was not found on diagnostic testing. 

In short, the Board finds that the disability picture represented by the above evidence does not meet the criteria for an initial compensable rating for the Veteran's left or right foot spurs.  As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is inapplicable, and increased ratings must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 

5.  Right Index Finger

The Veteran has also claimed entitlement to an initial compensable rating for a service-connected bony density at the distal tip of the right index finger, status post near severance.  This disability is currently assigned a 0 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5229.  

Diagnostic Code 5229 applies, in relevant part, to limitation of motion of the index.  The ratings it assigns under this diagnostic code are the same regardless of whether the extremity at issue is the Veteran's major index finger or minor index finger.  

Diagnostic Code 5229 assigns a 0 percent rating for limitation of motion of the index finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees.  It provides a 10 percent rating where the evidence demonstrates limitation of motion of the long (middle) finger with a gap of 1 inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.

The January 2010 VA examination report notes that there was no detectable alteration in the form or function of the right hand and fingers.  No ankylosis was identified.   The Veteran could tie shoelaces, fasten buttons, and pick up a piece of paper and tear it.  His index finger approximated the proximal transverse crease of the palm without difficulty.  There was no instability, deformity, guarding of movements, malalignment, or drainage.  Hand strength was normal.  The ranges of motion for flexion of the distal interphalangeal (DIP), proximal interphalangeal (PIP), and metacarpal phalangeal (MP) joints were full.  There was no degree of pain after any range of motion, and repetitive range of motion was normal.  There was no additional degree of limitation of motion after repetitive use.  Pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion.  According to the radiology report, a small, bony density was noted adjacent to the distal tip of the index finger on the Veteran's right hand.

Based on the above, the Board finds that entitlement to an initial compensable rating for a bony density at the distal tip of the right index finger, status post near severance, is not warranted, as the evidence of full range of motion does not satisfy the Diagnostic Code 5229 rating criteria for a 10 percent rating.

The Board has thus considered whether a compensable rating may be assigned based on a different diagnostic code.  In the absence of ankylosis, however, a compensable rating cannot be assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5225.  

The Board has also considered whether the Veteran's disability may be rated under 38 C.F.R. § 4.71a, Diagnostic Code 5153, based on amputation of the right index finger.  As noted above, the Veteran's right index finger was almost severed due to an in-service accident.  A 10 percent rating for this diagnostic code, however, requires amputation through the middle phalanx or at the distal joint.  A higher 20 percent rating is available for more severe amputation.  Based on the above evidence, the Board finds that a compensable rating is not warranted, as the examiner expressly noted that there was no detectable alteration in the form of the fingers on the Veteran's right hand.  

The Board has considered whether a compensable rating is available pursuant to Diagnostic Code 5003.  While the Board is unclear as to whether the bony density that was observed on examination constitutes arthritis, it notes that a compensable rating would not be available even if it were to find that the record contains x-ray evidence of arthritis.  Specifically, the Board notes that, in the absence of any limitation of motion, the Veteran cannot be assigned a rating based on x-ray findings of arthritis with noncompensable limitation of motion.  Nor is the Veteran's right finger disability considered to affect two or more major joints or minor joint groups.  Therefore, a compensable rating is not available.  

In short, the Board finds that the preponderance of the evidence is against granting an increased rating for the Veteran's claim of entitlement to an initial, compensable rating for a bony density at the distal tip of the right index finger, status post near severance.  In making this decision, the Board has considered the benefit-of-the-doubt-doctrine, but it does not apply, because the preponderance of the evidence is against the claim. Gilbert, supra.; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

6.  Status Post Surgical Mandible Fracture

The Veteran has claimed entitlement to an initial rating in excess of 20 percent for service-connected status post surgical mandible fracture, with titanium plate fixation and therapeutic dental extractions and with residual compromised dental function and pain, due to radical neck surgery.  This disability is currently rated under 38 C.F.R. § 4.150, Diagnostic Code 9903-9905, which indicates that the disability of nonunion of the mandible (Diagnostic Code 9903) is being rated based on limited motion of temporomandibular articulation (Diagnostic Code 9905).  

Diagnostic Code 9905 assigns a 20 percent rating for inter-incisal range of 21 to 30 millimeters, a 30 percent rating for inter-incisal range from 11 to 20 millimeters, and a 40 percent rating for inter-incisal range from 0 to 10 millimeters.  It notes that a 10 percent rating is available for range of lateral excursion limited to between 0 and 4 millimeters.  A rating based on limitation of lateral excursion, however, may not be combined with a rating based on limited inter-incisal movement.  

Because the Veteran in the case at hand is currently in receipt of a higher, 20 percent rating for limitation of inter-incisal movement, the Board will not consider whether he satisfies the criteria for a lower, 10 percent rating for limitation of lateral excursion.

Diagnostic Code 9903 assigns a 30 percent rating for severe nonunion of the mandible.  

The January 2010 VA examination report reflects that the Veteran's mandible was abnormal on examination.  A metal splint appeared to be seen on x-ray at the lower border of the left side of mandibular, extending from the midline posteriorly approximately 5 centimeters.  Examination of the maxilla revealed that most posterior teeth were missing, with very thin bone covering the maxillary sinuses on both right and left sides.  Examination of the ramus and palates revealed no abnormal findings.

Examination of the temporomandibular articulation revealed inter-incisal range of motion of 25 millimeters with no additional motion lost on repetition.  There was no additional limitation.  It was noted that the Veteran did not experience pain, fatigue, weakness, lack of endurance, or incoordination after repetitive movement.  Examination of the teeth showed loss of teeth 1, 3, 5, 13, 14, 15, 16, 17, 18, 19, 20, 21, 30, and 32.  These teeth had been removed as a part of the Veteran's cancer treatment.  The loss of teeth included loss of masticatory surface, but the loss of masticatory surface was noted to be restorable by suitable prosthesis.  

The Veteran testified at his January 2013 Board hearing that he has a plate in his jaw that produces significant pain and causes his jaw to seize up.

Based on this evidence, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's dental condition.  The Veteran's inter-incisal range of motion of 25 millimeters, with no additional functional impairment on repetition, fits squarely into the 20 percent category of Diagnostic Code 9905.  

The Board has considered whether a higher rating is available under a different diagnostic code.  However, the record does not demonstrate chronic osteomyelitis or osteoradionecrosis to warrant a rating as osteomyelitis under 38 C.F.R. § 4.71a, Diagnostic Code 5000 (Diagnostic Code 9900).  In the absence of loss of part of whole of the mandible, or of mandible nonunion, as reflected in the January 2010 examination report, an increased rating is not warranted under Diagnostic Codes 9901 through 9903.  Nonunion of the mandible (Diagnostic Code 9904), loss of less than one-half of the ramus (Diagnostic Code 9907), loss of coronoid process (Diagnostic Code 9909), and loss of less than one-half of the hard palate (Diagnostic Code 9912) do not allow for ratings in excess of 20 percent and therefore need not be further considered.  

Diagnostic Codes 9906 and 9911 are not applicable, as no abnormal findings were made for the Veteran's ramus and palates.  No condyloid process has been lost, so the Board need not further consider whether an increased rating is warranted under Diagnostic Code 9908.  

Even though the Veteran has lost many teeth, including loss of masticatory surface, the January 2010 VA examiner found that the loss of masticatory surface could be restored by suitable prosthesis.  Therefore, an increased rating may not be assigned under Diagnostic Code 9913.

In the absence of evidence of any loss of maxilla or of severe displacement of maxilla, increased ratings under Diagnostic Codes 9914 through 9916, are not warranted.  

In short, the Board finds that entitlement to an initial rating in excess of 20 percent for service-connected status post surgical mandible fracture, with titanium plate fixation and therapeutic dental extractions, and with residual compromised dental function and pain due to radical neck surgery, is not warranted.  

The Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert, supra.  Accordingly, the claim must be denied.

C.  Eyes

The Veteran has also claimed entitlement to an increased rating for a right eye corneal scar and bilateral eye floaters.  His is currently in receipt of a 0 percent rating for these disabilities pursuant to 38 C.F.R. § 4.79, Diagnostic Code 6099-6000.  This designation indicates that the Veteran's eye disability is not specifically listed in the Rating Schedule and was therefore rated by analogy.  Diagnostic Code 6000 rates choroidopathy, including uveitis, iritis, cyclitis, and choroiditis.

Under the criteria for evaluating diseases of the eye, Diagnostic Codes 6000 through 6009, in chronic form, are to be rated from 10 percent to 100 percent disabling for either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation.

Under the General Rating Formula for Diagnostic Codes 6000 through 6009, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.  A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months.  A 40 percent rating is assigned with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months.  A 60 percent rating is available with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.79.  

An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.  38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009, Note (2012).

Impairment of visual acuity is evaluated according to the procedures described in 38 C.F.R. § 4.76 and is rated under 38 C.F.R. § 4.79, Diagnostic Codes 6061 through 6066.  These diagnostic codes provide for ratings from 0 percent to 100 percent that are generally determined based upon the best corrected distance vision with central fixation.  38 C.F.R. § 4.76(b). 

Impairment of visual fields is evaluated according to the procedures described in 38 C.F.R. § 4.77 and is rated pursuant to 38 C.F.R. § 4.79, Diagnostic Codes 6080 through 6081.  These diagnostic codes assign ratings ranging from 10 percent to 100 percent that are generally determined based on the average concentric contraction of the visual field in each eye as described in 38 C.F.R. § 4.77(b).  Visual field impairment is measured by determining "the average concentric contraction of the visual field in each eye by measuring the remaining visual field (in degrees) at each of eight principal meridians 45 degrees apart, adding them, and dividing the sum by eight.  Id.

According to the January 2010 VA examination report, the Veteran reported that he has limited vision in the right eye that started about a year ago.  Ocular history was remarkable for a corneal abrasion secondary to a rock injury, retinal bruising, iris inflammation, and also presbyopia.  He reported that the right eye blurs at times at distance, but clears with blinking.  He reported episodes of waking in the morning with some discomfort in the right eye and having to use a washcloth to get the eye to open.  He also reported occasional episodes of increased pain and light sensitivity.  He denied any use of eyedrops or artificial tears.  

On examination, uncorrected distance visual acuity was 20/20, and uncorrected near acuity was 20/200 in each eye.  Best corrected visual acuity with a refraction of +50 sphere was 20/20 in each eye.  The Veteran did require a +1 addition for reading.  Pupils were equal, round, and reactive to light.  There was no afferent pupillary defect.  The Goldmann visual field conducted with a III/4e test object was full and normal in both eyes.  Confrontation visual fields were full to finger counting in each eye.  Extraocular muscles were full.  The eye pressure measured by applanation was statistically normal at 10 in each eye at 1:50 p.m.  Angles were open grade 4, not occludable.  

External eye examination was within normal limits.  The Veteran was dilated with 1% tropicamide and 2.5% phenylephrine in each eye.  The adnexa were clear and normal in each eye.  The lids and lashes revealed trace meibomian gland dysfunction in each eye.  The conjunctiva in the right eye was white and quiet.  The right cornea revealed inferior scarring with retained debris.  The left cornea was clear.  The anterior chamber was clear in each eye.  There were no cells noted in either anterior chamber.  Both irises and lenses were clear.  There was no
transillumination defect noted.  No cataracts were observed.  The dilated fundus exam revealed vitreal floaters present in each eye.  The cup-to-disk ratio was 0.3 by 0.3 in the right and 0.25 by 0.25 in the left.  The optic nerve displayed a pink rim in distinct margins in each eye.  The macula and vessels were clear and normal in each eye.  The peripheral retina was normal with no retinal breaks and no retinal detachments in either eye.

The examiner diagnosed mild meibomian gland dysfunction in each eye based on the slit-lamp exam findings.  He also diagnosed corneal scar in the right eye, which was moderate to large, with retained debris, and notified the Veteran that it is possible he notices the spot in his vision secondary to the scar.  He also diagnosed vitreal floaters in both eyes and educated the Veteran on the signs and symptoms of retinal detachment.  

Based on this evidence, the Board finds that entitlement to an initial compensable rating is not warranted for the Veteran's service-connected right eye corneal scar and bilateral eye floaters.  

The Board will first analyze the Veteran's claim according to the rating criteria of Diagnostic Code 6600, under which he is currently rated.  

As noted above, Diagnostic Code 6600 directs that the disability at issue be rated based on either visual impairment or incapacitating episodes.  Addressing the latter category first, the Board notes that the Veteran has not been prescribed any bed rest for his service-connected eye disability at any point during this appeal, and he thus does not satisfy the criteria for a compensable rating based on incapacitating episodes. 

With respect to the visual acuity rating, the Board notes that the Veteran's best (uncorrected) distance visual acuity was 20/20 in each eye and his best (corrected) near acuity was 20/20 in each eye.  When evaluated under the applicable Impairment of Central Visual Acuity criteria of Diagnostic Code 6066, the Board finds that a compensable disability rating cannot be assigned, as a compensable rating cannot be assigned under this diagnostic code without visual acuity impairment of at least 20/50 in one eye and 20/40 in the other.  Therefore, a compensable rating based on visual acuity is not warranted.

With respect to the visual field rating, the Board notes that Diagnostic Code 6080 lists ten separate rating scenarios that are based on the presence of homonymous hemianopsia; the loss of various halves of the visual field; or concentric contraction with a remaining visual field of 60 degrees or less.  In addition, Diagnostic Code 6081 assigns a compensable rating based on scotoma.  In the case at hand, the Board need not further delve into the specifics of these rating criteria, as the January 2010 VA examination report clearly states that the Goldmann visual field conducted with a III/4e test object was full and normal in both eyes.  Therefore, a compensable rating based on visual field impairment is not warranted.  

The Board has also considered whether a compensable rating may be assigned based on any of the remaining eye rating criteria.  These ratings are found in Diagnostic Codes 6010 through 6037 and Diagnostic Codes 6090 through 6091.  

Of the disabilities listed under Diagnostic Codes 6010 through 6037, only retinal scars, atrophy, or irregularities, listed under Diagnostic Code 6011, were found on examination.  This diagnostic code directs VA to assign a 10 percent rating based on findings of localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image.  

In the case at hand, the Board finds that the Veteran's moderate to large corneal scar in the right eye, with retained debris, does not warrant a compensable disability rating, as this disability is manifested by a spot in the Veteran's vision but does not result in irregular, duplicated, enlarged, or diminished image.  

Alternatively, Diagnostic Code 6011 provides that this disability may be evaluated based on visual impairment due to retinal scars, atrophy, or irregularities, if this would result in a higher evaluation.  Because the Board has already determined that an increased rating is not warranted for the Veteran's service-connected eye disabilities based on visual impairment, the Board need not further discuss these rating criteria.

In the absence of dipoplia and symblepharon, a compensable rating is not warranted under Diagnostic Codes 6090 or 6091.  

In short, the Board finds that a compensable rating for the Veteran's right eye corneal scar and bilateral eye floaters is not warranted.  In arriving at the decision to deny the claim, the Board has considered the applicability of the 'benefit-of-the-doubt' rule enunciated in 38 U.S.C.A. § 5107(b).  However, as the preponderance of the evidence is against the claim, that rule is not applicable in this case.  See Gilbert, supra.  Accordingly, entitlement to an initial compensable rating for right eye corneal scar and bilateral eye floaters is denied.

D.  Residual Surgical Neck Scars

The Veteran has claimed entitlement to an initial rating in excess of 30 percent for residual surgical neck scars, status post radical neck excision of squamous cell carcinoma.  This rating has been assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7800, which applies to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  These scars were from radical neck surgeries and chemotherapy in 2005 and 2006, and there is no indication that the Veteran has had additional surgery since that time.  

Diagnostic Code 7800 evaluates disfigurement of the head, face, or neck as follows: An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  A 50 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement.  A 30 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.  A 10 percent rating is assigned when there is one characteristic of disfigurement (10 percent).  38 C.F.R. § 4.118, Diagnostic Code 7800 (2012).

The 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters).  Id. at Note (1).

There are two January 2010 VA examination reports of record that discuss the Veteran's neck scars.  The occupational medicine examination report is part of a larger, broader examination, while the otolaryngeal examination report provides a more specific description of the neck scar.

The January 2010 occupational medicine examination report notes two sets of surgical scars on the left side of the neck.  Both scars were well healed without significant detectable alteration in sensory perception or vascular supply.  One scar was 8 centimeters by 0.1 centimeters, and it extended exclusively on the left side of the neck.  The other scar was 30 centimeters by 0.2 centimeters and extended from the back of the ear around the left side of the neck to under the chin.  These scars were well healed without complications.  They were flush with the surrounding skin and did not show any significant alteration in sensory perception or vascular supply.  The examiner diagnosed status post extensive surgery to neck and oral cavity; well-healed surgical scars with restriction in range of motion.

Except where specifically indicated, there was no significant change in pigmentation or texture in scars mentioned.  Scars were level with the surrounding skin, showing no sign of keloid formation.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, induration, inflexibility, or skin breakdown.  There was no limitation of motion or function and no gross distortion.

The January 2010 otolaryngology examination report notes that a scar was precisely located on the left of the Veteran's neck.  It was a nonlinear scar, its shape was curved, and it had a calculated area of 15 square centimeters.  The entire scar measured 15 centimeters by 1 centimeter.  The scar was not painful on examination.  There was no skin breakdown.  It was superficial with no underlying tissue damage.  Inflammation, edema, and keloid formation were absent.  The scar was disfiguring.  The scar did limit the Veteran's motion, which was a stiff neck.  The scar adhered to the underlying tissue and on palpation it was level.  The scar texture was normal.  (It was not shiny, scaly, or atrophic, and it did not have any irregularities.)  There was hypopigmentation of the scar.  The scar was pale and the area measured 15 centimeters by 0.1 centimeters.  There was no hyperpigmentation of the scar.  The scar was not indurated or inflexible. There was underlying soft tissue loss that was visible and palpable and measured 15 centimeters by 6 centimeters.  There was no gross distortion or asymmetry of the forehead, eyes, eyelids, ears, nose, cheeks, lips or chin.

Multiple medical record from May 2012 through October 2012 from a private rehabilitation, spine, and pain management treatment provider note that the Veteran has facial asymmetry.

The Board acknowledges that the Veteran's neck scars were found to result in limitation of motion in the form of a stiff neck.  The Board notes, however, that the Veteran has already been assigned a 10 percent disability rating for his cervical spine disability.  Because this 10 percent rating contemplates limitation of motion, the assignment of a separate compensable rating based on limitation of motion that is caused by the neck scars themselves would violate the prohibition against pyramiding and is thus not allowed.  See 38 C.F.R. § 4.14.  

In terms of the pertinent rating criteria, the January 2010 VA otolaryngology examination report expressly notes visible and palpable underlying soft tissue loss.  It also notes, however, that there was no gross distortion or asymmetry of the forehead, eyes, eyelids, ears, nose, cheeks, lips, or chin.

As noted above, multiple record from the Veteran's pain management treatment provider indicate the presence of facial asymmetry, while such asymmetry is not noted in either examination report.  Because the evidence reflects that the Veteran has not undergone neck surgery since 2006, and because there is otherwise no indication that the Veteran's neck scars have undergone such a worsening as to have resulted in facial asymmetry that was not present in 2006, the Board assumes that the VA examination reports and private treatment records are describing the same observable neck scar symptomatology.  

The Board notes that the 2012 pain management records broadly reflect the presence of "facial asymmetry," while the 2010 examination reports specifically state that there is no asymmetry of the forehead, eyes, eyelids, ears, nose, cheeks, lips, or chin.  The Board finds that these more specific findings, which were made in response to a VA examination request that specifically asks the examiner to provide such information, to be more probative than the general observation of "facial asymmetry" that was made by the pain management treatment provider.  Even so, the Board notes that the Veteran's current 30 percent disability rating contemplates gross distortion or asymmetry of one feature or paired set of features.  The pain management records do not suggest that any facial asymmetry involves more than one set of features.  Thus, the Board finds that those particular criteria for a rating in excess of 30 percent are not satisfied.

The Board will now determine whether a rating in excess of 30 percent is warranted based on the presence of at least four of the eight characteristics of disfigurement.  

The January 2010 VA examination reports both satisfy the first characteristic of disfigurement, which is a scar 5 or more inches (13 or more centimeters) in length.  The occupational medicine report notes a scar of 30 centimeters in length, which the otolaryngology report notes a scar of 15 centimeters in length.

The second characteristic of disfigurement, a scar at least one-quarter inch (0.6 centimeters) wide at widest part, is shown on the otolaryngology examination report, which notes a scar measuring 15 centimeters long by 1 centimeter wide. 

The third characteristic of disfigurement, that the surface contour of the scar is elevated or depressed on palpation, is not demonstrated by either examination report.  The occupational medicine examination report does not note elevated or depressed surface contour on palpation, while the otolaryngology report expressly notes that the Veteran's scar was level on palpation.

The fourth characteristic of disfigurement, that the scar is adherent to underlying tissue, was found during the otolaryngology examination.

The fifth characteristic of disfigurement, hypo- or hyper-pigmented skin in an area exceeding six square inches (39 square centimeters), is not demonstrated by the record.  The otolaryngology examination report notes hypopigmentation in an area that measures 15 centimeters by 0.1 centimeters.  

The sixth characteristic of disfigurement, abnormal skin texture (irregular, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters), is not found in the record.  The otolaryngology examination report expressly notes that the Veteran's scar was not shiny, scaly, or atrophic, and it did not have any irregularities.

The seventh characteristic of disfigurement, underlying soft tissue missing in an area exceeding six square inches (39 square centimeters), is satisfied, as the otolaryngology examination report describes underlying soft tissue loss that was visible and palpable and measured 15 centimeters by 6 centimeters.  
 
The eighth characteristic of disfigurement, skin indurated and inflexible in an area exceeding six square inches (39 square centimeters), is not satisfied, as the otolaryngology examination report expressly notes that the scar was not indurated or inflexible on examination.  

In summary, the record reflects that the Veteran's neck scarring satisfies four of the eight characteristics of disfigurement as listed in Diagnostic Code 7800, as the record demonstrates that the Veteran's neck scarring is manifested by the first, second, fourth, and seventh characteristics of disfigurement.  These findings support the assignment of a 50 percent disability rating, but no higher, under Diagnostic Code 7800.  

In short, entitlement to a rating of 50 percent, but no more, for residual surgical neck scars, status post radical neck excision of squamous cell carcinoma, is granted.

E.  Chest Scar

The Veteran has also claimed entitlement to an initial compensable evaluation for residual chest scar, status post pectoral flap transposition surgery.  This disability is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7805.  

The Veteran's chest scarring is currently assigned a 0 percent rating for functional impairment under 38 C.F.R. § 4.118, Diagnostic Code 7805.  This diagnostic code applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.  This diagnostic code directs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code.  This instruction essentially directs that the scars be rated for functional limitation.

As noted above, the Veteran is already service connected for the loss of left superior pectoralis muscle, which occurred in connection with the status post pectoral flap transposition surgery, and has been assigned a 40 percent disability rating pursuant to 4.73, Diagnostic Code 5302.  This rating consists, in part, of evaluation of limitation of motion, which is the major criterion by which functional limitation is rated.  As also noted above, the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14.  Therefore, the Veteran's chest scar cannot be separately rated for limitation of motion.  

Given that a compensable rating cannot be assigned under Diagnostic Code 7805, the Board will evaluate whether the Veteran may receive a compensable rating under one of the other diagnostic codes that pertains to scarring.  

Scars are evaluated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805.  (There is no Diagnostic Code 7803.)  Of these, as noted above, Diagnostic Code 7800 applies to scarring of the head, face, and neck and is thus inapplicable to the Veteran's chest scar rating.  

Diagnostic Code 7801 evaluates scars, not of the head, face, or neck, that are deep and nonlinear.  The ratings that are assigned are based on the size or the affected area or areas.  A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), with higher ratings being available for larger affected areas.   

Superficial and nonlinear scars not on the head, face, or neck are evaluated under Diagnostic Code 7802.  Under this diagnostic code, a compensable rating is not available unless such scars cover an area of at least 144 square inches (929 square centimeters).  

Diagnostic Code 7804 assigns ratings for scars that are unstable or painful.  This diagnostic Code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars.

The January 2010 VA occupational medicine examination report notes that the scar on the Veteran's left chest measured 22 centimeters by 0.4 centimeters.  The scar resulted in a flattening of the chest, causing a deformity in the chest outline as well as weakness in the muscles affecting left shoulder movement.  It was estimated that the deformed area occupies 20 percent of the anterior surface of the trunk or 2 percent of total body surface.  

As with the neck scars claim discussed above, except where specifically indicated, there was no significant change in pigmentation or texture in scars mentioned.  Scars were level with the surrounding skin, showing no sign of keloid formation.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, induration, inflexibility, or skin breakdown.  There was no limitation of motion or function and no gross distortion.

Based on the above, the Board finds that a compensable rating cannot be assigned under any of these other diagnostic codes.  Assuming that the Veteran's scar is deep and nonlinear, it does not warrant a compensable rating under Diagnostic Code 7801, as it measures 22 centimeters by 0.4 centimeters, which covers an area less than the area of at least 39 square centimeters that is required in order to receive a 10 percent rating.  
Finally, a compensable rating is not available under Diagnostic Code 7804, for unstable or painful scars, because the evidence reflects that pain and instability were not found on examination.  

In short, the Board finds that the Veteran's residual chest scar, status post pectoral flap transposition surgery, does not meet any applicable rating criteria for a compensable rating.  As the evidence preponderates against the claim, the benefit-of-the- doubt doctrine is inapplicable, and an increased rating must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.

F.  Vocal Cord Paralysis

The Veteran has claimed entitlement to an initial compensable disability rating for his service-connected vocal cord paralysis.  This disability is currently rated as chronic laryngitis under 38 C.F.R. § 4.97, Diagnostic Code 6516.  This diagnostic code directs that a 10 percent rating be assigned for hoarseness with inflammation of cords or mucus membrane, while a 30 percent rating is available for hoarseness with thickening or nodules of cords, polyps, submucus infiltration, or pre-malignant changes on biopsy.   

In discussing the history of the Veteran's  laryngeal stenosis, it was noted in the January 2010 VA otolaryngology examination report that the Veteran suffered paralysis of the left vocal cord due to infiltration of vagal nerve in the course of one of his surgeries.  The Veteran reported having suffered a permanent loss of vocal capability due to damage caused by surgical procedures and radiation treatments, which has affected his ability to communicate effectively with people in daily life and the occupational arena.  Examination of the larynx reveals voice hoarseness and left vocal cord paralysis.  There was no evidence of submucosal infiltration, inflammation of mucous membranes, laryngectomy, inflammation of the cords, thickening of the cords, nodules of the cords, or polyps.  The Veteran had speech impairment.

A May 2012 private medical record notes that the Veteran found a lesion on his vocal cord and that he was also having problems swallowing.  He complained of hoarseness and a laryngeal lesion.  

A June 2012 University of North Carolina Health Care record notes an impression of prominence of the posterior aspect of the left true vocal cord, and notes that dilation of the ipsilateral puriform sinus and deviation of the left arytenoids cartilage was seen.  It further states that "[t]hese findings patent there [is] left vocal cord paralysis rather than a mass."  

A June 2012 private treatment record notes that the Veteran had been evaluated for growths in his neck and turned out to be benign.  

At his January 2013 Board hearing, the Veteran testified that, while he is able to speak above a whisper, "I only have one vocal cord that works and the more I use my voice I can guarantee that I will -- I will be at a whisper."

Based on the above, the Board finds that a compensable rating is not warranted for the Veteran's vocal cord paralysis.  As noted above, while the January 2010 VA examination report notes hoarseness, it also expressly notes that there was no evidence of submucosal infiltration, inflammation of mucous membranes, laryngectomy, inflammation of the cords, thickening of the cords, nodules of the cords, or polyps.  In the absence of any of these findings, the Veteran does not satisfy the criteria for a compensable rating under Diagnostic Code 6516.  

The Board has considered the records from May 2012, noting a reported laryngeal lesion.  Another May 2012 record notes that two left vocal cord lesions were found on EGC on May 17, 2012.  He was subsequently referred for evaluation and treatment.  A June 2012 record includes an impression of prominence of the posterior aspect of the left true vocal cord.  Ultimately, however, the Board notes that this same June 2012 record ultimately concludes that the findings indicate the presence of "left vocal cord paralysis rather than a mass," and therefore finds that the criteria for a 30 percent rating are not satisfied.

In short, the Board finds that the criteria for a compensable disability evaluation for vocal cord paralysis have not been met.  As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and an increased rating must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.






G.  Laryngeal Stenosis

The Veteran is also seeking an increased rating for laryngeal stenosis, which is currently rated as noncompensably disabling pursuant to Diagnostic Code 6519-6520 , which rates the disability of aphonia (Diagnostic Code 6519) under the rating criteria for stenosis of the larynx (Diagnostic Code 6520).  

Diagnostic Code 6519 applies a 60 percent rating for complete, organic aphonia that is manifested by a constant inability to speak above a whisper, and a 100 percent rating to a constant inability to communicate by speech.  This diagnostic code directs that incomplete aphonia be evaluated as chronic laryngitis.    

As referenced by the Veteran's representative at the January 2013 Board hearing, while application of this diagnostic code may be appropriate for the Veteran's vocal cord paralysis, it does not properly apply to the laryngeal stenosis claim.  (The Board notes, in passing, that the Veteran does not actually have complete organic aphonia, and that his vocal cord paralysis has already been properly evaluated pursuant to Diagnostic Code 6516 above.  Therefore, the Board finds that the Veteran does not satisfy the rating criteria for a compensable disability rating under Diagnostic Code 6516.)  The Board finds it more appropriate to recharacterize the Veteran's laryngeal stenosis disability as stenosis of the larynx and simply rate it under Diagnostic Code 6520.   

Diagnostic Code 6520 applies to stenosis of the larynx, including residuals of laryngeal trauma, unilateral or bilateral.  It allows for ratings between 10 percent and 100 percent based on pulmonary function test (PFT) results, specifically based on Forced Expiratory Volume in one second (FEV-1) values with Flow Volume Loop that is compatible with upper airway obstruction, or based on the presence of a permanent tracheostomy.

Under Diagnostic Code 6520, FEV-1 less than 40 percent of predicted value, with Flow-Volume Loop compatible with upper airway obstruction, or permanent tracheostomy warrants a 100 percent rating.  FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction, is assigned a 60 percent rating.  FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction, is awarded a 30 percent rating.  FEV-1 of 71- to 80-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction, warrants a 10 percent rating.  

The post-bronchodilator findings from the PFTs are the standard in pulmonary assessment.  See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation as these results reflect the best possible functioning of an individual).

According to the January 2013 VA otolaryngology examination report, the Veteran reported experiencing interference with breathing through the nose and hoarseness of the voice.  He reported no purulent discharge from the nose.  He reported that he does not receive any treatment for his respiratory condition such as a respirator or oxygen.  The examiner diagnosed laryngeal stenosis.

The record contains the results of a January 2010 PFT examination that was conducted in connection with the examination.  It notes, in relevant part, FEV-1 value of 118 percent predicted.  Furthermore, the Veteran has not had a permanent tracheostomy.  These findings do not satisfy the criteria for a compensable rating under Diagnostic Code 6520.  

The Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert, supra.  Accordingly, entitlement to an initial compensable evaluation for laryngeal stenosis is not warranted.

H.  Squamous Cell Carcinoma of the Base of the Tongue 

The Veteran has also claimed entitlement to an initial compensable rating for squamous cell carcinoma of base of tongue with loss of one-third of the tongue and speech impairment.  This disability is rated as loss of whole or part of the tongue under 38 C.F.R. § 4.114, Diagnostic Code 7202.  

Diagnostic Code 7202 assigns a 30 percent rating for loss of whole or part of the tongue with marked speech impediment.  A 60 percent rating is assigned for loss of one-half or more of the tongue.  A 100 percent rating is warranted with loss of whole or part of the tongue with inability to communicate by speech.  

The evidence amply reflects, including through his personal hearing testimony and his consultation with medical treatment providers, that the Veteran is able to communicate by speech, and he thus does not satisfy the criteria for a 100 percent rating.  The record also clearly reflects that he lost approximately one-third of his tongue, so he does not satisfy the criteria for a 60 percent rating.  The only remaining question is whether the Veteran can be characterized as having "marked speech impediment" to qualify for the 30 percent disability rating.

The Board observes that the word "marked" is not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  See 38 C.F.R. § 4.6 (2012).  The Board observes in passing that the word "marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous."  See Webster's New World Dictionary 828 (1988). 

On his May 2009 medical history report, the Veteran described his speech impairment as follows: 

My speech is permanently impaired; I constantly am asked to repeat or clarify what I say.  Each day, as the day wears on, my speech becomes almost incomprehensible as my mouth and tongue tire out and swell.  I endured speech therapy for several months in 2006 at UNC Hospital in Chapel Hill, NC.  I reached the point where no further improvements are obtainable.  
      
The November 2009 Medical Evaluation Board (MEB) proceedings report diagnoses "[s]peech difficulty secondary to radical neck surgery and pectoral flap transposition from [squamous cell carcinoma]."  It further notes that the Veteran's "current speech capabilities fall below standards of fitness."  

The December 2009 Physical Examination Board (PEB) report notes that the Veteran has "significant speech impediment and dysphagia.  Speech is slurred due to impaired articulation of phonation of vowels documented in 25 August 2009 speech pathology consultation.  Condition has reached maximum response to rehabilitation."  

The January 2010 VA dental examination report describes the Veteran's speech as "compromised."  The January 2010 occupational medicine examination report notes the Veteran as having speech "difficulty" and notes "[a]lteration in speech," but it does not describe the degree of speech impediment.  The January 2010 psychiatric examination report describes the Veteran's speech as "slightly dysarthric (he has had a pectoral flap which involved reconstruction of his mouth and throat)."  

The Board notes that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007), defines "dysarthria" as a speech disorder consisting of imperfect articulation due to loss of muscle control after damage to the central or peripheral nervous system.  

The Board also notes that the Veteran provided verbal hearing testimony before the undersigned in January 2013.  At this hearing, the Veteran testified that his tongue swells the more that he speaks.  

The record clearly reflects that the Veteran's speech is impaired by this disability.  The extent of this impairment is described as significant by both the Veteran and the medical professionals who evaluated him in connection with his separation from service.  The Board finds the Veteran's in-service descriptions of the deterioration of his speech clarity with more use to be highly credible.  The Veteran, even though he is a layperson, is competent to testify as to the clarity of his speech.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Furthermore, following his separation from service, several of the Veteran's medical treatment providers and VA examiners have commented upon impairment to his speech, even those that were not responsible for evaluating or treating the Veteran's speech impairment.  

Based on the above, the Board finds that, resolving reasonable doubt in the Veteran's favor, a 30 percent rating for speech impairment as a residual of squamous cell carcinoma of base of tongue with loss of one-third of the tongue is warranted.  38 C.F.R. § 4.3.  

In addition, the Board finds that a separate compensable rating is warranted for the Veteran's loss of his sense of taste pursuant to 38 C.F.R. § 4.87a, Diagnostic Code 6276.  This diagnostic code assigns a 10 percent disability rating for complete loss of sense of taste.  The Note to this diagnostic code directs that "[e]valuation will be assigned ... only if there is an anatomical or pathological basis for the condition."  In the case at hand, the November 2009 MEB report notes that, as a result of his multiple surgeries, the Veteran "has lost all ability to taste food."  The Veteran stated on his September 2009 medical history report that "I lost the ability to taste with my initial surgery in 2005.  The aggressive radiation treatment I received further impaired this drastic loss.  These senses will never return.  Being in the food service profession, these losses are devastating to my future."

An August 2005 service treatment record notes that the Veteran had normal taste.  An August 2009 service treatment record notes that the Veteran has "[l]ost most of his sense of taste."

The December 2009 PEB report notes that the Veteran suffered a complete loss of his sense of taste as part of the resection of one-third of his tongue.  It was noted that this disability is particularly damaging for the Veteran because his Military Occupational Specialty (MOS) was in food service.  

As noted above, the Veteran reported at his January 2010 psychiatric examination that he enjoys food, but he no longer has taste after his cancer treatment, so his enjoyment is limited to sight and smell of food.

In light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a separate 10 percent disability rating for complete loss of sense of taste due to squamous cell carcinoma of base of tongue with loss of one-third of the tongue is warranted.  38 C.F.R. § 4.87a, Diagnostic Code 6276.

In doing so, the Board acknowledges that the August 2009 record only notes that the Veteran has "[l]ost most of his sense of taste."  The Board finds, however, that there is ample evidence, including in November 2009 MEB report and the December 2009 PEB report, that the Veteran currently experiences complete loss of his sense of taste to resolve any reasonable doubt on this particular question in his favor.  38 C.F.R. § 4.3.  

I.  Esophageal Stenosis

The Veteran has also claimed entitlement to an initial rating in excess of 30 percent for his service-connected esophageal stenosis.  This disability has been rated as stricture of the esophagus under 4.114, Diagnostic Code 7203.  

Diagnostic Code 7203 assigns a 30 percent rating for moderate disability.  It awards a 50 percent rating when the disability is severe, permitting only liquids.  An 80 percent rating is given for severe disability, permitting passage of liquids only, with marked impairment of general health.  

The January 2010 VA occupational medicine examination report notes that, since his surgical and radiation procedures, the Veteran has been subject to severe esophagitis and has had to submit to esophageal dilatation in order to make the condition more bearable.  His functional impairment was described as inhibiting his "ability to consume proper nutrition due to aspiration of food and beverage."  It was noted that he had needed dilatation of the esophagus from time to time.  His functional impairment was noted to "affect[] dietary choices, increase[] prolonged chewing, necessitate[] increased fluid intake with meals."

The January 2010 otolaryngology exam notes that the Veteran required two to three esophageal dilations per year due to esophageal stricture.  

A February 2010 University of North Carolina Hospitals record notes that the Veteran was eating and drinking well, although he was careful with the consistency of foods.  

An April 2010 private gastroenterology medical record notes that the Veteran was seeking further evaluation of trouble swallowing food.  He reported that, following dilation, he could usually eat normally for a few weeks.  He then noted progressive dysphagia, observing that even a half teaspoon of rice would begin to cause dysphagia.  

An April 2011 private gastroenterology record notes that the Veteran was seeking further evaluation for trouble swallowing food and pills.  It notes that the Veteran had been requiring dilation every 90 days.  

Treatment records from the private rehabilitation center dating from April 2012, May 2012, and June 2012 note that the Veteran has to wrap his medicine in bread in order to be able to swallow it.

A June 2012 University of North Carolina Hospitals record reflects that the Veteran reported a history of dysphagia, choking episodes, and regurgitation.  It notes that he underwent his usual six-month follow-up with his gastroenterologist for dilation.  He reported that he had been able to tolerate more soft consistency foods.  

At his January 2013 Board hearing, the Veteran reported that he gets his mouth dilated approximately every 90 days.  For the first 30 days following dilation, he is able to swallow foods and take medication.  The next 30 days, he has problems swallowing and his food and medications get stuck.  For the 30 days prior to the next dilation, he ends up losing weight because there are certain things he cannot eat.  He reported that he attempts to put on weight in the first 30 days following dilation by going on a normal diet.  The last 30 days, he tries to stay with a soft diet to keep his weight up, but he still ends up losing about 10 pounds.  He described the following problems that he encounters after his throat starts to constrict:

Foods go down the wrong path, things of that nature, fried steak, chicken, shrimp and my last ... 30 days before, I can't eat those things.  I wind up eating a lot of oatmeal.  I eat a lot of scrambled eggs, things like that for my last 30 days until I can get an appointment with Dr. Jones to get it stretched.

The Veteran reported that his disability has been this way since he was discharged from service. 

Based on the above, the Board finds that a rating in excess of 30 percent cannot be granted pursuant to Diagnostic Code 7203.  As noted above, a rating in excess of 30 percent requires that the Veteran only be able to consume liquids.  As can be seen from the above descriptions, the Veteran is able to consume solids, even if his ability to do so diminishes between his 90-day dilations.  The Veteran has reported that he has to stick to soft foods, such as oatmeal and eggs, prior to dilation.  He does not suggest that he is limited to a liquid diet.  In the absence of evidence that the Veteran's esophageal stenosis limits him to consumption of liquids, a rating in excess of 30 percent is not warranted.  

In short, the Board finds that the disability picture represented by the above evidence does not meet the criteria for an initial rating in excess of 30 percent for the Veteran's esophageal stenosis.  As the evidence preponderates against the claim, the benefit-of-the- doubt doctrine is inapplicable, and an increased rating must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.

J.  Bilateral Hearing Loss

The Veteran has also claimed entitlement to an initial compensable rating for bilateral hearing loss.  The current 0 percent disability rating is assigned pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.

Evaluations of bilateral defective hearing range from noncompensable to 100 percent and are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz.  To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, ranging from numeric level I for essentially normal acuity to numeric level XI for profound deafness.  38 C.F.R. § 4.85; see Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Neither the Veteran nor his representative has asserted that there is any deficiency in the examinations conducted.  

Having reviewed the complete record, the Board finds the most probative evidence of record appears in a January 2010 VA otolaryngology examination report.  

On examination, puretone readings were at 500, 1,000, 2,000, 3,000, and 4,000 Hertz of 15, 15, 30, 60, and 65 decibels in the right ear, for a four-frequency average of 42.5 decibels.  Left ear puretone thresholds were at 10, 15, 30, 45, and 55 decibels, for a four-frequency average of 36.25 decibels.  Speech recognition was found to be 92 percent in each ear.

In describing the functional impairment that has resulted from his hearing loss, the Veteran reported that he has to request to have others repeat their statements and that he often does not hear voices, music, or the television at standard acceptable volumes.  He reported that he is asked to turn music and television down as it is considered too loud and painful for others in the vicinity.  When asked to describe his overall functional impairment, the Veteran reported that he is unable to perform tasks or comply with requests due to decreased auditory reception.  

The January 2010 audiometric findings reflect level I auditory acuity in the right ear and level I auditory acuity in the left ear.  See 38 C.F.R. § 4.85, Table VI.  When combined on Table VII, these numeric designations correspond to a 0 percent rating.  See 38 C.F.R. 4.85, Table VII, DC 6100.  Thus, the Board finds that the level of hearing that has been demonstrated on this evaluation is not consistent with a schedular evaluation in excess of 0 percent under the regulation.

The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not apply to the appellant's situation as the audiometric results from the January 2010 evaluation did not show puretone thresholds of loss of 55 decibels or greater in the 1,000, 2,000, 3,000, and 4,000 Hertz frequencies for either ear.  The provisions of 38 C.F.R. § 4.86(b) are also not applicable as neither ear is shown to manifest 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.

There are no contrary medical findings of record suggesting that the appellant's hearing loss meets the puretone or speech discrimination thresholds necessary for a compensable rating under Diagnostic Code 6100.  Nor has the record demonstrated functional impairment that renders the rating criteria of 38 C.F.R. §§ 4.85 and 4.86 inadequate.

In short, the Board finds that the disability picture represented by the above evidence does not meet the criteria for a compensable disability rating for the Veteran's bilateral hearing loss.  As the evidence preponderates against the claim, the benefit-of-the- doubt doctrine is inapplicable, and an increased rating must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 

K.  Extraschedular Evaluations

In reaching these conclusions, the Board also has considered whether the Veteran is entitled to a greater level of compensation for any of the disabilities at issue on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate.  Second, if the schedular evaluations do not contemplate the Veteran's level of disability and symptomatology and are found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected disabilities are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.

Specifically, the Board finds that the rating criteria of Diagnostic Code 9411 for the Veteran's service-connected PTSD adequately contemplate the levels of cognitive, social, and occupational impairment that are demonstrated in his VA medical records and the January 2010 examination report.  The assigned GAF scores appear to accurately quantify the Veteran's overall level of impairment and are consistent with the 50 percent rating that has been granted.

The impairment that is caused by the Veteran's musculoskeletal disabilities is also consistent with the ratings that have been assigned based on limitation of motion and radiology findings.  In the absence of functional impairment, the Board does not find that there is symptomatology for the Veteran's disabilities of the thoracic spine, left knee spur, right knee spurs, and bony density at the distal tip of the Veteran's right index finger that are uncompensated by the assigned disability ratings.  Likewise, the absence of impairment caused by the Veteran's service-connected eye disabilities indicates that there are no uncompensated symptoms for which an extraschedular rating should be granted.

The Board notes that the Veteran's loss of the left superior pectoralis muscle has been assigned the highest available rating, and that this rating contemplates severe symptomatology.  For this disability and the left and right foot spurs, the applicable rating criteria are qualitative rather than quantitative.  These ratings, consisting of a characterization of the left pectoral muscle injury as "severe," and of characterizations of the foot disabilities as "moderate," necessarily contemplate all of the complaints and functional impairment that have been reported by the Veteran or were found on examination.  

The Board further finds that the ratings for the disabilities associated directly with the Veteran's squamous cell carcinoma (including the status post surgical mandible fracture with titanium plate fixation and therapeutic dental extractions; residual surgical neck scars; residual chest scar; vocal cord paralysis; squamous cell carcinoma of base of tongue with loss of one-third of the tongue and speech impairment; and esophageal stenosis), when taken together, account for all of the reported symptomatology that has been associated with the Veteran's carcinoma.

Finally, the bilateral hearing loss disability rating contemplates both the puretone and speech discrimination findings on examination and the Veteran's reported functional impairment.

The Veteran has not been hospitalized for any of these disabilities during the period that is contemplated by this appeal.  He has reported having to increasingly miss work due to his service-connected PTSD.  However, the Veteran's new 50 percent rating contemplates the level of occupational impairment that has been described by the Veteran.  

In short, there is nothing in the record to indicate that the service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

IV.  Service Connection

In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury.  See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   

The Court has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007). 

The Board notes that, in the case at hand, the Veteran filed his claims prior to his separation from service.  He also underwent a VA examination in January 2010 prior to his separation from service.  The Board notes that any disabilities that were diagnosed during this examination satisfy all three elements of service connection.

Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service.  38 C.F.R. § 3.303(b)(2012).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).    See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  

A.  BPH

The Veteran has claimed entitlement to service connection for BPH.  

In terms of an in-service disability, the Veteran's service treatment records reflect that he had a normal rectal examination in June 1987.  The record reflects that a MEB proceedings report was issued in November 2009, approximately four months prior to the Veteran's separation from service.  This report includes a diagnosis of BPH, which was made by the MEB "after consideration of clinical record, laboratory findings, and physical examination."  

The record includes a January 2010 VA QTC general (pre-discharge) medical examination report that diagnoses BPH, stable at present, with no complications identified.  

In short, the Board finds that the competent and probative evidence of record establishes that the Veteran has a current diagnosis of BPH that is etiologically linked to his military service.  Therefore, service connection for BPH is granted.

B.  Calcified Nodules of the Right Lung

The Veteran has claimed entitlement to service connection for calcified nodules of the right lung.  The January 2010 VA examination report diagnoses "[s]table calcified nodules in the right lung; ... no compromise in form or function identified."  This constitutes a diagnosis of a current disability that was found in service.  Thus, the Board finds that the competent and probative evidence of record establishes that the Veteran's has a current diagnosis of calcified nodules of the right lung that is etiologically linked to his military service.  Therefore, service connection for calcified nodules of the right lung is granted.

C.  Left Hand Disability and Status Post Left Fifth Finger Extensor Tendon Rupture

The Veteran has also claimed entitlement to service connection for a left hand disability, claimed as osteoarthritis, and for residuals of left fifth finger extensor tendon rupture.   

A review of the Veteran's service treatment records reveals that no left hand or finger disability was noted on either the November 2009 MEB report or the December 2009 MEB report.  

According to the January 2010 occupational medicine examination report, the Veteran reported that he had osteoarthritis in 1991 and that he had a fifth digit tendon rupture in 2001.  He reported that these conditions healed well, and he was not aware of any side effects from the treatments he received or complications from the conditions.  He has not been in the hospital or had surgery for either condition.  He recalled having had the finger splinted for three months, and that this was followed by occupational therapy.  In terms of functional impairment, he reported experiencing "increased frustration when unable to complete tasks at expected levels."

On examination, there was no detectable alteration in the form or function of the left hand and fingers.  No ankylosis was identified.  The Veteran could tie shoelaces, fasten buttons, and pick up a piece of paper and tear it.  Fingers two to five approximated the proximal transverse crease of the palm without difficulty.  The thumb reached the base of the fifth finger and touched the tip of each finger.  There was no instability, deformity, guarding of movements, malalignment or drainage.  Hand strength was normal, as was range of motion of the thumb and all fingers.  There was no degree of pain after any range of motion.  Repetitive range of motion was normal.  There was no addition degree of limitation after repetitive use.  Pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion.

The examiner observed that physical examination did not show any significant alteration in form or function of the left hand.  The traumatic injury referred to as having the injured tendon of the fifth finger was now well healed without complications or disfigurement.  X-rays were negative.  No diagnosis was made because no current pathology was identified on physical examination to render a diagnosis.

The Board has reviewed the remaining evidence of record and can find no indication that the Veteran has a current disability of the left hand or left fifth finger.

The Court has recognized that, '[i]n the absence of proof of a present disability, there can be no valid claim' of service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that '[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability.').   In the case at hand, the probative evidence of record does not demonstrate that the Veteran has a disability of the left hand, to include osteoarthritis, or the left fifth finger, so as to warrant service connection on a direct or presumptive basis.  

In short, a preponderance of the evidence is against finding that the Veteran has a current left hand or left fifth finger disability.  The Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against these claims, the doctrine is not for application.  Gilbert v. Derwinski, supra.  Accordingly, entitlement to service connection for a left hand disability, claimed as osteoarthritis, and for residuals of left fifth finger extensor tendon rupture must be denied.

D.  Right Elbow Disability

The Veteran has also claimed entitlement to service connection for a right elbow disability.  

The January 2010 VA occupational medicine examination report notes that there is no detectable alteration in form or function of the right elbow.  There was no sign of edema, effusion, weakness, tenderness, redness, heat, or abnormal movement.  There was no instability, deformity, guarding of movements, malalignment, or drainage.  No fixed position was identified.  Tinel sign was negative. There was normal strength, and the range of motion was full.  There was no degree of pain after any range of motion, and repetitive range of motion was normal.  There was no addition degree of limitation after repetitive use.  Pain, weakness, lack of endurance, fatigue, or incoordination did not impact further on the range of motion.  X-rays were negative.  No diagnosis was made, as no current pathology was identified on physical examination to render a diagnosis.  

The Board has reviewed the remaining evidence of record and can find no indication that the Veteran has a current disability of the right elbow.

As with the left hand and left fifth finger claims above, the Board notes that, without a current disability, service connection for a right elbow disability, claimed as osteoarthritis, may not be granted.  See Brammer, supra.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 

E.  Radiodermatitis of the Face

The Veteran has also claimed entitlement to service connection for radiodermatitis of the face.  

The Veteran reported on a May 2009 medical history report that he "developed a skin fungus, seborrheic dermatitis that I have never completely been cured of.  In times of stress, this condition flares up and is difficult to get under control again."  

The Veteran's skin was found to be clinically abnormal at the time of an October 2009 medical examination.  It was noted that the Veteran had radiation melanosis to the face and neck.

This condition was also noted as having been found on the November 2009 MEB report, with an approximate onset in 2005.  On examination at that time, radiation melanosis was present on the entire face and anterior neck.  

According to the January 2010 VA occupational medicine examination report, the Veteran reported that there were changes to the skin on his face, with ulcer formation, tightness, burning, and tingling.  These areas healed well subsequent to this treatment.  He experienced itching in the left side of the neck and the skin was uncomfortable because of previous surgery, scarring, and radiodermatitis.  In terms of functional impairment, the Veteran reported that he "limits tolerance to sun exposure for outdoor activities."  On examination, the Veteran's skin was healthy in appearance, texture, and pigmentation except for major scars in the neck and on the chest.  No diagnosis was made of a skin disability.

A December 2011 private dermatology record assesses the Veteran as having a bacterial infection, not otherwise specified; acne, vulgaris; and acne, pustulosis, acne scarring.  This record notes that the Veteran reported having had a greater than one year history of acne involving his face, neck, chest, and back.  On examination, diffuse erythematous papules were noted on the chest, back, and face.  

Based on the above, the Board finds that entitlement to service connection for radiodermatitis cannot be granted.  The Board observes that this condition was noted in service, but it was not found in any of the Veteran's post-service medical records.  While the Veteran does have a current acne diagnosis, the Board notes that this condition was not found in the Veteran's service treatment records.  

In denying this claim, the Board has considered the benefit-of-the-doubt rule.  However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 

F.  Sinusitis

The Veteran has also claimed entitlement to service connection for sinusitis.  

The Veteran's service treatment records contain a July 1993 record noting that the Veteran has "probable [illegible- left?] sinusitis," that had been bothering him when he left the air conditioning.  

A December 1986 record reflects that the Veteran was assessed as having an upper respiratory infection.  At this time, it was noted that his sinuses were not tender.  

A record that appears to be from December 1987 diagnoses acute sinusitis.  

A June 2000 record notes that the Veteran sought treatment for cold symptoms.  He was assessed as being "clinically well except for ? sinusitis."  

The Veteran's sinuses were noted to be clinically normal in a May 2009 examination report.  He endorsed a history of, or current, sinusitis on a May 2009 medical history report.  

The Veteran reported at his January 2010 occupational medicine examination that he was diagnosed with chronic sinusitis in 1986, and that this disability has been responsible for interference with breathing through the nose, hoarseness of voice, and purulent discharge and pain.  He has used sprays in therapy for the
condition, and he described his functional impairment as "decreased energy and endurance for daily activities."

No sinus tenderness was noted on examination.  There was no sign of excessive
secretion, purulent discharge, or nasal obstruction.  Paranasal sinus x-rays were negative.  The examiner found that no current pathology was identified on physical
examination to render a diagnosis, noting that the current physical examination did not reveal any sign of active, acute, or chronic disease of the nasopharyngeal passage.

The record does not otherwise reflect that the Veteran has been diagnosed with sinusitis since his separation from service.

Based on the above, the Board finds that entitlement to service connection for sinusitis is not warranted, as the evidence does not demonstrate that the Veteran has a current sinusitis disability.  As with the left hand, left fifth finger, and right elbow claims above, the Board notes that, without a current disability, service connection for sinusitis may not be granted.  See Brammer, supra.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 




G.  GERD

Finally, the Veteran has claimed entitlement to service connection for GERD, also claimed as esophagitis with polyps or colitis bowel condition.  

The Board observes that there is ample evidence that the Veteran was treated for gastroesophageal symptomatology in service.  In January 2001, the Veteran sought treatment for symptoms that were believed to be related to GERD.  The November 2009 MEB proceedings report diagnoses the Veteran with persistent severe esophagitis and notes an onset year of 2005.  

The December 2009 PEB report notes that the Veteran had esophagitis as a result of his esophageal stricture.  

The January 2010 occupational medicine examination report notes that the Veteran has given a history of acid reflux and of taking proton pump inhibitors in therapy for GERD with adequate management of it.  The January 2010 examination did not reveal any sign of active, acute, or chronic disease of the abdomen.  The examiner further noted that there was no evidence of abnormalities, by UGI.  There was also no anemia, and there were no findings of malnutrition.

Post-service evidence of a current disability also includes an October 2012 VA medical record noting that the Veteran is currently taking esomeprazole magnesium, or Nexium.  The October 2012 record also includes an assessment of GERD and notes that the Veteran takes protonix twice per day and carafate.  

Based on the above, the Board finds that entitlement to service connection for GERD is warranted.  In granting this claim, the Board acknowledges that the January 2010 occupational medicine examination report found no current findings of active, acute, or chronic disease.  Given, however, the severity of the Veteran's esophagitis just prior to separation, and given the evidence that he is currently being treated for GERD, the Board finds that service connection for GERD is warranted.


ORDER

Entitlement to an initial evaluation of 50 percent, but no higher, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.  

Entitlement to an initial compensable evaluation for thoracic disc space narrowing is denied.

Entitlement to an initial evaluation in excess of 40 percent for loss of left superior pectoralis muscle is denied.

Entitlement to an initial compensable evaluation for service-connected left knee spur is denied.

Entitlement to an initial compensable evaluation for service-connected right knee spurs is denied.

Entitlement to an initial compensable evaluation for left foot Achilles and plantar spurs is denied.

Entitlement to an initial compensable evaluation for a right foot Achilles spur is denied.

Entitlement to an initial compensable evaluation for a bony density at the distal tip of the right index finger, status post near severance, is denied.

Entitlement to an initial evaluation in excess of 20 percent for status post surgical mandible fracture with titanium plate fixation and therapeutic dental extractions with residual compromised dental function and pain due to radical neck surgery and chemotherapy/radiation, is denied.  

Entitlement to an initial compensable evaluation for right eye corneal scar and bilateral eye floaters is denied.

Entitlement to an initial 50 percent rating, but no higher, for residual surgical neck scars, status post radical neck excision of squamous cell carcinoma, is granted, subject to the laws and regulations governing the payment of monetary benefits.  

Entitlement to an initial compensable evaluation for residual chest scar, status post pectoral flap transposition surgery, is denied.

Entitlement to an initial compensable evaluation for vocal cord paralysis is denied.

Entitlement to an initial compensable evaluation for laryngeal stenosis is denied.

Entitlement to an initial 30 percent evaluation, but no higher, for speech impairment as a residual of squamous cell carcinoma of base of tongue with loss of one-third of the tongue is granted, subject to the laws and regulations governing the payment of monetary benefits.  

Entitlement to a separate 10 percent evaluation, but no higher, for loss of sense of taste as a residual of squamous cell carcinoma of base of tongue with loss of one-third of the tongue is granted, subject to the laws and regulations governing the payment of monetary benefits.  

Entitlement to an initial evaluation in excess of 30 percent for esophageal stenosis is denied.

Entitlement to an initial compensable evaluation for bilateral hearing loss is denied.

Entitlement to service connection for BPH is granted.  

Entitlement to service connection for calcified nodules of the right lung is granted.

Entitlement to service connection for a left hand disability, claimed as osteoarthritis, is denied.

Entitlement to service connection for status post left fifth finger extensor tendon rupture is denied.

Entitlement to service connection for a right elbow disability, claimed as osteoarthritis, is denied.

Entitlement to service connection for radiodermatitis of the face is denied.

Entitlement to service connection for sinusitis is denied.

Entitlement to service connection for GERD is granted.


REMAND

The Veteran has also requested a higher initial rating for his service-connected degenerative disc disease of the cervical spine, status post resection radical neck and oral cavity.  This disability is currently assigned a 10 percent rating as degenerative arthritis of the spine under 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012).  The relevant rating criteria under this diagnostic code contemplate limitation of flexion; limitation of combined ranges of motion in all directions; and muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

As noted above, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2012).  See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995).

The January 2010 VA examination report notes flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, right rotation to 40 degrees, and left rotation to 60 degrees.  However, while this record does note that weakness had a major impact on the Veteran's range of cervical spine motion, it does not quantify this additional functional impairment in terms of degrees of lost motion.  Without this information, the Board is not able to adequately apply the relevant rating criteria.  Therefore, a remand for a new VA examination is necessary before this disability may be properly rated.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  Arrange for the Veteran to undergo a VA examination to determine the severity of his service-connected cervical degenerative disc disease, status post resection radical neck and oral cavity.  The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail.  

The examiner should list the range of motion of the Veteran's cervical spine in all directions.  After reviewing the claims folder, obtaining a history of complaints from the Veteran, and conducting a thorough examination of the Veteran, the examiner should respond to each of the following inquiries:

a.  Does the cervical spine exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms)?

b.  Does pain significantly limit functional ability during flare-ups or when the cervical spine is used repeatedly over a period of time (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups)?

c.  Please identify any neurological findings related to the service-connected cervical spine disability and fully describe the extent and severity of those symptoms. 

3.  After the development requested above has been completed, again review the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.  

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