Citation Nr: 1318314	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  04-27 143	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for residuals of the submandibular gland excision.

3.  Entitlement to service connection for a skin rash, to include as pursuant to the provisions of 38 C.F.R. § 3.317. 

4.  Entitlement to service connection for headaches, to include as pursuant to the provisions of 38 C.F.R. § 3.317.

5.  Entitlement to an initial compensable rating (evaluation) for service-connected gastroesophageal reflux disease (GERD).

6.  Entitlement to an initial compensable rating (evaluation) for service-connected retrograde ejaculation.

7.  Entitlement to an initial compensable rating (evaluation) for service-connected left index finger laceration.

8.  Entitlement to an initial rating (evaluation) in excess of 20 percent for service-connected L5-S1 fusion.

9.  Entitlement to an initial compensable rating (evaluation) for service-connected right ear tympanoplasty with chronic otitis media prior to July 17, 2007.

10.  Entitlement to an initial rating (evaluation) in excess of 10 percent for service-connected right ear tympanoplasty with chronic otitis media from July 17, 2007.  

11.  Entitlement to an initial compensable rating (evaluation) for the service-connected right knee disability prior to December 13, 2007.

12.  Entitlement to an initial rating (evaluation) in excess of 10 percent for service-connected right knee disability from December 13, 2007.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant (Veteran)


ATTORNEY FOR THE BOARD

C. Ferguson, Counsel


INTRODUCTION

The Veteran had active service from June 1981 to June 2001.  
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.  

In an August 2009 rating decision, the RO granted an increased disability rating of 10 percent for the Veteran's right ear tympanoplasty with chronic otitis media effective July 17, 2007, as well as an increased disability rating of 10 percent for the right knee disability effective December 13, 2007.  Despite the partial increase awarded by the RO, the claims remain in controversy because the Veteran is not in receipt of the maximum benefit allowable.  See A.B. v. Brown, 6 Vet. App. 35 (1993). 

In May 2011, the Veteran presented testimony relevant to the appeal at a Board hearing held before a Veterans Law Judge (VLJ) at the RO in Los Angeles, California.   A transcript of the hearing is of record.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VA employee who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and 
(2) the duty to suggest the submission of evidence that may have been overlooked.  

Prior to the Board hearing, the VLJ discussed the case with the representative and agreed to hold the record open for sixty (60) days in order to allow time to submit additional evidence in support of the appeal.  See Board hearing transcript, page 11.  The VLJ initially allowed the representative to identify the issues on appeal during the course of the hearing in order to better direct the Veteran's testimony.  During the course of the hearing, the representative asked the Board to consider certain regulations pertinent to the service connection claims and initial rating claims and specifically stated that service connection was based on having a current disability or diagnosis.  See Board hearing transcript, pages 3, 12; see also Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant had demonstrated actual knowledge of the information and evidence necessary to establish the claim).  The VLJ later clarified the issues and posed several questions of the Veteran in order to elicit additional testimony pertinent to the claims.  In consideration of the foregoing, the Board finds that the VLJ complied with the requirements of 38 C.F.R. § 3.103(c)(2).  

In a February 2013 letter, the Veteran was notified that the VLJ who conducted the May 2011 Board hearing had retired and was no longer with the Board.  The Board advised the Veteran of his hearing options and informed him that the Board would assume that he did not want another hearing and would proceed with appellate review if he did not respond within thirty (30) days to the letter.  The Veteran did not respond to the February 2013 letter.   

In January 2012, the Board denied service connection for residuals of a right hand fracture and granted service connection for left knee osteoarthritis.  The Board remanded the issues of service connection for residuals of a submandibular gland excision, bilateral hearing loss, irritable bowel syndrome, a skin rash, and headaches, as well as the issues of increased initial ratings for GERD, retrograde ejaculation, left index finger laceration, a low back disability, chronic otitis media, status post right ear tympanoplasty, and a right knee disability for further evidentiary development, as explained in greater detail below.       

In the January 2013 rating decision, service connection was established for chronic diarrhea with a noncompensable (i.e., zero percent) rating effective July 1, 2001 and a 30 percent disability rating effective April 9, 2012, a residual scar on the abdomen and lumbar spine with a 10 percent disability rating effective July 1, 2001, and right ear hearing loss with a noncompensable (i.e., zero percent) disability rating effective July 1, 2001.  In light of the full grant of the benefits sought, the Board finds that the previously remanded issues of service connection for irritable bowel syndrome and right ear hearing loss have been fully resolved in the Veteran's favor and are no longer before the Board.    
	
The Board has considered whether a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Because the record shows that the Veteran has been employed throughout the rating period, the Board finds that the issue is not raised.  See, e.g., December 2010 VA primary care note (stating that the Veteran is employed) and April 2012 VA headaches examination report (noting that the Veteran was employed as an analyst).  

The issues of entitlement to: 1) service connection for a skin rash; 2) service connection for headaches; 3) an initial rating in excess of 20 percent for the service-connected lumbosacral spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's account of military noise exposure is credible.

2.  The Veteran does not suffer from a left ear hearing impairment as defined by VA regulation.
 
3.  The Veteran has a residual scar from the submandibular gland excision.  

4.  The service-connected GERD is manifested by occasional dysphagia and intermittent epigastric distress of lesser severity.  

5.  The Veteran does not have deformity of the penis with the current retrograde ejaculation.

6.  Resolving the reasonable doubt in favor of the Veteran, the left index finger laceration residuals, which are manifested by symptoms of numbness and pain in the finger associated with radial digital nerve deficit produced by applying pressure to the area of the residual scar, are analogous to a scar that is painful on examination.   

7.  The Veteran's right ear tympanoplasty with chronic otitis media is not shown to have been manifested by active infection or purulent discharge for the portion of the rating period prior to July 17, 2007.

8.  The Veteran's right ear tympanoplasty with chronic otitis media was manifested by chronic purulent discharge and chronic otitis media for the portion of the rating period from July 17, 2007.  

9.  For the entire rating period (i.e., prior to December 13, 2007 and from December 13, 2007), the Veteran's right knee disability is manifested by occasional instability.  

10.  For the portion of the rating period from December 31, 2007, the Veteran's right knee osteoarthritis is manifested by pain on flexion, pain with McMurray testing, mild effusion on the right, tenderness over the patella on physical examination of the right knee, and mild degenerative changes.  


CONCLUSIONS OF LAW

1.  Left ear hearing loss was not incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).

2.  A residual scar from the submandibular gland excision was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 
38 C.F.R. §§ 3.159, 3.303 (2012).

3.  The criteria for an initial 10 percent rating for GERD have been approximated for the entire rating period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.27, 4.118, Diagnostic Code 7399-7346 (2012).

4.  The criteria for an initial compensable evaluation for service-connected retrograde ejaculation have not been met or approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.115b, Diagnostic Code 7599-7522 (2012).

5.  Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent rating for left index finger laceration residuals have been approximated for the entire rating period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.118, Diagnostic Code 7804 (prior to October 23, 2008).

6.  The criteria for an initial compensable rating for right ear tympanoplasty with chronic otitis media has not been met or approximated for the portion of the rating period prior to July 17, 2007.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.27, 4.87, Diagnostic Code 6211-6200 (2012).

7.  The criteria for an initial rating in excess of 10 percent for right ear tympanoplasty with chronic otitis media has not been met or approximated for the portion of the rating period from July 17, 2007.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.27, 4.87, Diagnostic Code 6211-6200 (2012).

8.  The criteria for an initial 10 percent rating for occasional right knee instability have been approximated for the entire rating period (i.e., prior to December 13, 2007 and from December 13, 2007).  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.27, 4.71a, Diagnostic Code 5299-5257 (2012).

9.  The criteria for an initial rating in excess of 10 percent for right knee osteoarthritis with painful motion has not been met or approximated for the portion of the rating period from December 13, 2007.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.27, 4.71a, Diagnostic Code 5003 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  

Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a)  and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; 
(2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In the August 2001 notice letter sent prior to the initial denial of the service connection claims, the RO apprised the Veteran of the information and evidence necessary to substantiate the claims, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf.  In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claims.  The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims.  The RO further advised that VA may be able to pay the Veteran from the date his claim was received if the requested information or evidence was received within one year from the date of the letter and VA decided that he was entitlement to benefits, which adequately addresses the element of effective date.  

Although the element of degree of disability was not addressed in the August 2001 notice letter, such notice deficiency is harmless error.  Service connection for a residual scar from the submandibular gland excision is being granted, and the error will be addressed when effectuating the award of benefits.  The other service connection claims adjudicated herein are being denied for reasons explained below and no disability rating will be assigned.  Also, the Veteran through the representative has demonstrated knowledge of how disability ratings are assigned.  See April 2013 Appellant's Post-Remand Brief.  For these reasons, the Board finds that the August 2001 notice letter adequately satisfied VCAA notice requirements with respect to the service connection claims and no further notice is needed.    

Regarding the initial rating claims, the Veteran is challenging the initial disability ratings assigned following the grant of service connection for GERD, retrograde ejaculation, left index finger laceration, right ear tympanoplasty with chronic otitis media, and a right knee disability in the June 2003 rating decision.  The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007).  Furthermore, under 38 C.F.R. § 3.159(b)(3)(i), there was no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case.  For these reasons, the Board finds that no further notice, beyond that afforded in the context of the original claims for service connection, is needed under the VCAA.  

Regarding VA's duty to assist in claims development, the RO afforded the Veteran with medical examinations in connection with the claims in February 2003, March 2003, April 2003, December 2007, April 2012, and May 2012.  Collectively, the medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the claims decided herein.  The medical examiners took a thorough history of the disabilities from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment.  The medical examiners had adequate facts and data regarding the history and condition of the disabilities.  See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran).  The medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on his daily life and performed a thorough physical evaluation of the Veteran, to include x-rays.  There has been no allegation or indication that there has been a material change in condition since the examination for any of the disabilities decided herein.  For these reasons, the Board finds that the collective medical examination reports are adequate for deciding the Veteran's service connection and initial rating claims, and there is no need for further medical examination of the claims decided herein.

In January 2012, the Board remanded the issues on appeal in order to obtain any outstanding treatment records pertinent to the claimed disabilities, schedule the Veteran with medical examinations, and obtain medical opinions in connection with the appeal.  The Board directed the AMC to readjudicate the issues when the ordered development had been completed.  Upon review of the record, the Board notes that additional VA treatment records have been added to the Veteran's Virtual VA file.  The Veteran was also afforded with medical examinations in connection with the appeals in April 2012 and May 2012.  Following completion of the ordered development, the claims were subsequently readjudicated; therefore, the Board finds that there has been substantial compliance with the prior Board remand orders. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). 

As explained above, the VA medical examinations and medical opinions are adequate for the claims decided herein.  Although the May 2012 VA oral and dental examiner did not adequately address whether the Veteran's right ear tympanoplasty with chronic otitis media aggravated the claimed condition in rendering the requested medical opinion, there is no need to obtain further medical opinion.  The probative and competent evidence of record shows that the Veteran does not currently suffer from residuals of the submandibular gland excision other than a residual scar; therefore, a remand for a supplemental medical opinion addressing aggravation by the service-connected right ear disability is not necessary.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).     

The Veteran's complete service treatment records and post-service treatment records adequately identified as relevant to the appeal have been obtained and are associated with the record.  The additional treatment records found in the Veteran's Virtual VA folder have been considered by the AMC in the first instance.  See January 2013 SSOC.  The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the claims decided herein.  In view of the foregoing, the Board will proceed with appellate review. 

It is the Board's responsibility to evaluate the entire record on appeal.  See 
38 U.S.C.A. § 7104(a) (West 2002).  The Board has thoroughly reviewed all the evidence in the record.  The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

Service Connection

Service Connection Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).   As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

As explained below, the Veteran does not currently have a left ear hearing impairment for VA purposes or suffer from residual disability from the submandibular gland excision other than a residual scar.  The Veteran's current diagnosis of eczema is not listed under 38 C.F.R. § 3.309(a) as a "chronic disease".  Therefore, the analysis of chronicity and continuity under 38 C.F.R. § 3.303(b) is not applicable in this case.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service Connection Analysis for Left Ear Hearing Loss

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

In this case, the Veteran contends that he currently suffers from hearing loss due to military noise exposure.  The DD Form 214 identifies the primary military occupational specialty of infantryman.  The service treatment records show that the Veteran was exposed to hazardous noise areas during active service.  See, e.g., DD Form 2215 (showing that the Veteran was exposed to hazardous noise and issued ear plugs).  Thus, because the Veteran is competent to report exposure to loud noise during service, and the account is consistent with the contemporaneous service medical evidence, as well as the circumstances of his service, the Board finds the account of military noise exposure to be credible.       

Nonetheless, the weight of the lay and medical evidence is against finding that the Veteran suffers from a left ear hearing loss due to military noise exposure.  At the February 2003 VA audiological examination, the Veteran demonstrated pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
LEFT
25
10
10
10
10

Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  The audiometric results and speech recognition score as demonstrated at the February 2003 VA audiological examination do not meet the criteria for a left ear hearing impairment as defined by VA regulation.  

Although the audiometric data from the December 2007 ear disease examination are not available for review, the VA examiner noted in the examination report that the Veteran's hearing was within normal limits and there was no functional ear impairment currently.  This evidence similarly weighs against finding that the Veteran has a left ear hearing disability as defined by VA regulation.

More recently, at the April 2012 VA audiological examination, the Veteran demonstrated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
20
15
25
10
0

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  Thus, the Veteran was not shown to have a left ear hearing impairment as defined by VA regulation at the April 2012 VA audiological examination.    

Upon review of the Veteran's post-service treatment records, the Board notes that there are no findings of a left ear hearing disability.  In fact, the treatment records similarly show that the Veteran does not suffer from left ear hearing loss.  See, e.g., July 2011 VA audiology progress note (noting a previous diagnosis of "unilateral conductive hearing loss"); March 2011 VA otolaryngology consult note (noting the presence of conductive hearing loss in the right ear and hearing within normal limits in the left ear).  

In addition to the medical evidence discussed above, the Veteran's lay statements weigh against finding a current left ear hearing impairment as defined by 38 C.F.R. § 3.385.  At the Board hearing, the Veteran stated that his treating audiologist had recommended a hearing aid only for the right ear and twice identified the left ear as his "good ear" during the course of the hearing.  See Board hearing transcript, pages 7-8, 20.  While objective medical evidence is needed to determine whether the Veteran meets the criteria for left ear hearing loss as defined by VA regulation, the Veteran's hearing testimony generally tends to support the medical evidence, which does not show a left ear hearing disability.    

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997).  In the absence of evidence of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In this case, the overall evidence of record does not show that the Veteran currently suffers from a left ear hearing loss as defined by VA regulation; therefore, that holding is of no advantage.  Therefore, in consideration of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for left ear hearing loss is not warranted.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection Analysis for Submandibular Gland Excision Residuals

The Veteran contends that he currently suffers from residuals of a submandibular gland excision and seeks service-connected compensation benefits on such basis.  

In this case, the service treatment records show that, in June 1987, the Veteran was diagnosed with submandibular gland sialadenitis with radiographic concretion and treated with Keflex, an antibiotic.  The Veteran later underwent a submandibular gland excision in 1989 secondary to blockage.  See June 1992 periodical service examination report.  Thus, because the existence of a disease in service is not in dispute, the Board will now consider whether the Veteran currently suffers from residuals of the submandibular gland excision that occurred during service.  

The evidence shows that the Veteran has a residual scar from the submandibular gland excision.  When the Veteran initially underwent medical examination in April 2003, the VA medical examiner noted that the Veteran had a small scar under the submandibular area but the skin lesion was not motion-limiting or unattractive in any way or grossly identifiable.  Later, at the May 2012 VA oral and dental examination, the VA medical examiner checked "Yes" when asked if the Veteran had any scars related to the submandibular gland excision.  Because there is evidence of a small residual scar associated with the Veteran's submandibular gland excision, the Board finds that service connection for the residual scar is warranted.     

However, after review of the lay and medical evidence of record, the Boards finds that the weight of the evidence is against finding that the Veteran currently suffers from residuals of the in-service submandibular glandular excision other than the residual scar.  Indeed, the April 2003 VA medical examiner specifically wrote that the Veteran had a history of right submandibular gland resection that had occurred while on active duty; however, there were no sequelae left from the injury.  The April 2003 VA medical opinion is based on the Veteran's reported medical history, as well as a physical examination, and is of great probative value and weighs against finding that the Veteran currently suffers from residual disability from the in-service submandibular glandular excision.    

The May 2012 VA oral and dental examination report similarly weighs against finding that the Veteran has residual disability from the submandibular glandular excision that took place during service.  Indeed, the VA examination report shows that the Veteran reported that he had not had any problems after the surgery and only had a slightly dry mouth but had no concerns.  Additionally, no residual disability from the Veteran's submandibular gland excision was shown on physical examination.  The VA medical examiner specifically checked "No" when asked if there were any pertinent physical findings, complications, conditions, signs and/or symptoms (other than the scar) related to the diagnosis of right submandibular gland sialadenitis made in the 1980s.  Because the May 2012 VA medical examiner considered the physical findings and the relevant medical history to include the in-service surgery and prior examinations, and the opinion is consistent with other medical evidence of record, the medical opinion is also of great probative value.  

Although the Veteran competently reported at the Board hearing that he had difficulty with saliva production and flow, as well as dry mouth, as a result of the submandibular glandectomy, the Veteran, as a lay person, is not competent to attribute such symptomatology to a residual disability resulting from the submandibular gland excision; therefore, the opinion is afforded little to no probative value.  As stated above, the VA medical examiners did not find that the Veteran currently suffered from any residuals due to the submandibular gland excision, and there is no evidence to the contrary of record.  This evidence far outweighs the Veteran's unsubstantiated lay assertion that he currently has residual disability from the in-service submandibular gland excision.  

Thus, service connection is warranted for the residual scar from the submandibular gland excision that occurred during service; however, there are no other residuals shown.    

Disability Evaluations

Disability Rating Legal Criteria

Disability evaluations are determined by the application of the VA 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 their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.  Although pain may cause a functional loss, pain itself does not constitute functional loss.  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.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Governing regulations include 
38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of a veteran's claim is to be considered.  In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2.

Initial Rating Analysis for GERD

The Veteran's GERD is currently evaluated as noncompensable as an unlisted disease rated by analogy to hiatal hernia under the hyphenated diagnostic code 7399-7346.  38 C.F.R. § 4.27.  Under Diagnostic Code 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The maximum schedular rating of 60 percent is warranted when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114, Diagnostic Code 7346. 

After review of the lay and medical evidence of record, the Board finds that the disability picture more closely approximates the schedular criteria for a 10 percent rating under Diagnostic Code 7346.  The Board recognizes that the Veteran reported improved GERD symptoms since the 2000 Nissen fundoplication and repeatedly stated that he did not require any medical treatment for symptoms of GERD at the VA medical examinations performed in February 2003, December 2007, and April 2012.  The April 2012 VA medical examiner also specifically checked "No" when asked if the Veteran had any signs or symptoms due to esophageal conditions.  Nonetheless, at the February 2003 VA medical examination, the Veteran reported pain in his mid-epigastric area after eating too much and when pressure was put on the area.  The Veteran also told the February 2003 VA medical examiner that he had a slight problem with swallowing his food (i.e., dysphagia).  At the subsequent December 2007 VA medical examination, the Veteran continued to complain of occasional dysphagia, reported current intermittent symptoms of GERD which were not as severe as they had been before the 2000 Nissen fundoplication, and objectively demonstrated tenderness in the epigastrium on examination.  At the April 2012 VA medical examination, the Veteran reported having residual epigastric pain with physical pressure applied to the area, and objectively demonstrated abdominal tenderness and guarding with palpation to the epigastric area.  He reported having had symptoms of heartburn that had resolved after being taken off medicine for treatment of neuropathy.  

The Board notes that the April 2012 VA medical examiner did not provide an explanation for the discrepancy between the Veteran's repeated complaints of epigastric distress and the objective demonstration of abdominal tenderness on examination and the examiner's conclusion that the Veteran did not have any signs or symptoms due to GERD.  While the evidence shows that the Veteran's symptoms GERD have improved since the 2000 surgery, the evidence does not establish that the symptoms have resolved, particularly, in light of the Veteran's continued complaints of intermittent symptoms of epigastric distress and occasional dysphagia.  As the reported symptoms have not been attributed to another gastrointestinal disability, the Board has considered the symptoms in evaluating the Veteran's initial rating appeal for GERD.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, the evidence shows that the Veteran demonstrates intermittent epigastric distress and occasional dysphagia due to GERD, which are two of the symptoms contemplated in the 30 percent schedular criteria under Diagnostic Code 7346.  Also, the Veteran has competently and credibly stated that the GERD symptoms are less severe than they had been prior to the 2000 surgery.  In consideration of the foregoing, the Board resolves reasonable doubt in the Veteran's favor in finding that the criteria for a 10 percent schedular rating under Diagnostic Code 7346 have been approximated for the entire rating period.  

The Veteran, however, is not entitled to an even higher schedular rating for GERD.  As stated above, the Veteran's GERD is manifested by only occasional dysphagia and intermittent epigastric distress.  The Veteran's admission that the epigastric distress is only intermittent is highly probative and weighs against finding that there is persistently recurrent epigastric distress, as required for the next higher 30 percent schedular rating.  The Veteran has also repeatedly stated that he does not require medical treatment for GERD at this time.  The Veteran's statements weigh against finding that GERD symptomatology is productive of considerable impairment of health.  At the April 2012 VA medical examination, the Veteran reported that the symptoms of heartburn resolved after being taken off of medication for treatment of neuropathy; therefore, the complaints of heartburn during the period were not related to GERD.  The Veteran has repeatedly denied having experienced regurgitation at VA medical examinations during the period.  At the December 2007 VA medical examination, the Veteran only reported a "history" of nausea several times daily, epigastric distress several times daily, and heartburn several times daily, which is supported by the service medical evidence.  When specifically reporting current symptoms relevant to the rating period, the Veteran has repeatedly told VA medical examiners that he only experienced GERD symptoms on an intermittent basis and the symptoms had improved since the 2000 surgery.  The treatment records relevant to the rating period contain no contrary findings.  For these reasons, the Board finds that the Veteran's GERD disability picture does not approximate the schedular criteria for a disability rating higher than 10 percent under Diagnostic Code 7346.
 
The Board has further considered whether the initial rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321.  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, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria.  If those criteria are not inadequate, the analysis does not need to proceed any further.

In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the currently assigned 10 percent rating.  As stated above, the Veteran's GERD is significantly improved since the 2000 surgery, and GERD is manifested by occasional dysphagia and intermittent epigastric distress.  The 10 percent rating under Diagnostic Code 7346 specifically considers GERD (as analogous to hiatal hernia) with two or more of the symptoms for the 30 percent evaluation of less severity.  In this case, the Veteran demonstrates two of the symptoms for the 30 percent schedular rating with less severity; therefore, the Board finds that manifestations of the Veteran's disability are fully contemplated in the currently assigned 10 percent rating under Diagnostic Code 7346.  There is no additional functional impairment related to GERD alleged or shown during the rating period.  For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's GERD, and referral for consideration of extraschedular rating is not necessary.
  
Initial Rating Analysis for Retrograde Ejaculation

The Veteran's retrograde ejaculation is currently evaluated as noncompensable as a disability analogous to penile deformity with loss of erectile power under the criteria found at 38 C.F.R § 4.115b.  The Board notes that there are no criteria provided for a noncompensable evaluation under Diagnostic Code 7522.  In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). 

In order for the Veteran to receive the next higher evaluation of 20 percent under Diagnostic Code 7522, the evidence must show that he has deformity of the penis with loss of erectile power.  38  C.F.R. § 4.115b, Diagnostic Code 7522 (2012).  In this case, the evidence does not depict such a disability picture.  Indeed, the lay and medical evidence of record does not show deformity of the penis associated with the Veteran's current retrograde ejaculation.  For example, at the March 2003 VA medical examination, the Veteran denied having any trauma or surgery to the penis, and no penile deformity was shown on physical examination.  More recently, when the Veteran underwent further medical examination in April 2012 pursuant to the Board's remand order, the VA medical examiner wrote that the penis had not been examined per the Veteran's request; however, the Veteran reported normal anatomy with no penile deformity or abnormality.  Treatment records relevant to the rating period show no deformity of the penis.  In consideration of the foregoing, the Board finds that the service-connected retrograde ejaculation is properly evaluated as noncompensable, and a higher rating is not warranted.  38 C.F.R. §§ 4.31, 4.115b, Diagnostic Code 7522 (2012). 

The Board has further considered whether the initial rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321.  
In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the schedular noncompensable rating.  As discussed above, there is no evidence of penile deformity, which is required for a compensable schedular rating under Diagnostic Code 7522.  While the schedular criteria under Diagnostic Code 7522 do not specify the symptomatology or criteria for a noncompensable rating, a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31.  The Board also notes that, at the March 2003 VA medical examination, the Veteran stated that the retrograde ejaculation had not affected his occupation or daily activities.  His complaint during the course of this appeal is that the service-connected retrograde ejaculation has caused difficulty in getting his wife pregnant.  The reported symptomatology and related functional impairment are already being compensated through the award of special monthly compensation for loss of use of a creative organ.  See June 2003 rating decision (awarding special monthly compensation from July 1, 2001).  In consideration of the foregoing, the Board finds that manifestations of the Veteran's disability are fully contemplated in the currently assigned noncompensable rating under Diagnostic Code 7522.  For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's retrograde ejaculation, and referral for consideration of extraschedular rating is not necessary.

Initial Rating Analysis for Left Finger Laceration Residuals

The Veteran's left finger laceration residuals are currently evaluated as noncompensable under the hyphenated diagnostic code 7802-8514.  38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case reveals that Diagnostic Code 7802 is assigned for the scar associated with the original service-connected injury and Diagnostic Code 8514 is assigned for paralysis of the musculospiral nerve (i.e., radial nerve) as the residual condition.  38 C.F.R. § 4.27.  The Veteran's right hand is the dominant extremity; therefore, the left hand is the minor extremity.  See, e.g., April 2012 VA back examination report.      

During the pendency of the claim/appeal, the rating criteria for evaluating skin disorders, to include scars, were revised.  See 73 Fed. Reg. 54,708-12 (Sept. 23, 2008).  The effective date of the revisions is October 23, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date.  In this case, the Veteran filed the original service connection claim before October 23, 2008; therefore, the revised criteria do not apply.  Although the amendment allows for a veteran to request a review of a scar disability under the revised criteria irrespective of whether such veteran's disability has increased since the last review, no such request has been made in this case.  See 77 Fed. Reg. 2909-10 (Jan. 20, 2012). 

For the minor arm, Diagnostic Code 8514, paralysis of the musculospiral nerve (radial nerve), provides a 20 percent evaluation where there is mild or moderate incomplete paralysis; and a 40 percent evaluation is provided for severe incomplete paralysis.  A 60 percent disability rating requires complete paralysis with drop of the hands and fingers, perpetual flexion of the wrist and fingers, the thumb adducted falling within the line of the outer border of the index finger; inability to extend the hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of the wrist; supination of hand, extension an flexion of elbow weakened, the loss of synergic motion of extensors impairs hand grip; total paralysis of the triceps.  38 C.F.R. § 4.124a, Diagnostic Code 8514.

In this case, the evidence shows that the Veteran's left index finger demonstrates residual radial digital nerve deficit.  See February 2003 VA medical examination report.  After undergoing a VA medical examination for peripheral nerves in December 2007, the VA medical examiner diagnosed "[l]ocal trauma to the radial aspect of the distal index finger with subsequent numbness to the radial aspect of the distal phalanx and intermittent disagreeable pressure-related phenomena in the finger probably related to mechanical pressure on a small neuroma or normally healed distal nerve."  The Board observes, however, that the schedular criteria for paralysis of the radial nerve contemplate nerve impairment affecting the hand, wrist, and multiple fingers and the functional impairment resulting therefrom, rather than one finger.  The evidence shows that the Veteran's radial digital nerve deficit only involves the left index finger and does not result in impairment to other fingers of the left hand or the left hand as a whole.  The Veteran does not demonstrate any of the symptomatology contemplated in the schedular criteria for paralysis of the radial nerve under Diagnostic Code 8514; therefore, the Board finds that the left index finger disability is properly rated as noncompensable under that diagnostic code.  38 C.F.R. § 4.31 (2012).  

The Board additionally notes that the Veteran is not shown to have any limitation of motion or ankylosis of the index finger to warrant the assignment of a 10 percent rating under Diagnostic Code 5225 (for ankylosis of the index finger) or Diagnostic Code 5229 (for limitation of motion of the index finger).  For example, at the February 2003 VA medical examination, the Veteran had normal range of motion of the distal interphalangeal (DIP) joint from 0 to 90 degrees.  Also, the April 2012 VA medical examination report reveals that there was no limitation of motion, to include with flexion and extension, or evidence of painful motion for the finger on examination.  There was no additional limitation of motion on repetitive use.  While there was pain with gripping and grabbing demonstrated, it resulted in no limitation of motion of the finger.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).         

At the February 2003 and December 2007 VA medical examinations, the Veteran demonstrated decreased sensation over the radial aspect of the distal finger pad consistent with the previous injury.  Also, at the December 2007 VA medical examination, palpation of the residual scar located transversely across the distal finger was uncomfortable, and tapping of the scar and region immediately proximal to the scar produced pain that, at times, extended distally to the tip of the finger.  Although the evidence does not show that the scar itself is painful, the tapping of the scar and the area around the scar produced pain at the December 2007 VA medical examination.  The Veteran has consistently complained of pain and/or numbness in the distal aspect of the index finger throughout the rating period, and there is no indication that the complaints are not credible, particularly in light of medical findings showing residual radial nerve deficit in the left index finger.  In consideration of the foregoing, the Board finds that manifestations of the radial nerve disability (i.e., pain and numbness in the index finger due to radial nerve deficit) are analogous to, and more closely approximate, the schedular criteria for a painful residual scar for the entire rating period; therefore, an initial rating of 10 percent under Diagnostic Code 7804 is warranted.  See 38 C.F.R. § 7.118, Diagnostic Code 7804 (prior to October 23, 2008).

The Board notes that the maximum rating available under Diagnostic Code 7804 is 10 percent.  The Veteran's residual scar is not shown to be of the size or location or to cause limitation of motion to warrant evaluation under any of the other diagnostic codes pertaining to the scar.  38 C.F.R. § 4.118, Diagnostic Codes 7800-7803, 7805 (prior to October 23, 2008).             

The Board has considered whether the initial rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321.  In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the schedular 10 percent rating.  As discussed above, the Veteran's left index finger demonstrates radial digital nerve deficit manifested by decreased sensation over the radial aspect of the distal finger pad and pain produced on tapping of the residual scar and region near the scar.  While the schedular criteria under Diagnostic Code 7804 do not specifically contemplate pain and numbness related to radial nerve deficit, the Board considered the Veteran's complaints of pain and numbness involving the index finger and found that the manifestations more closely approximated the schedular criteria for a painful residual scar under Diagnostic Code 7804.  Although the Veteran told the February 2003 VA medical examiner that the finger bothered him after prolonged typing on the computer causing him to have to take breaks and flex and extend his fingers to rest them; the April 2012 VA medical examiner found that the finger disability did not impact the Veteran's ability to work.  As the April 2012 VA medical opinion is the only opinion that specifically addresses the disability's impact on the Veteran's ability to work, it is of great probative value.  The Board also notes that the Veteran is in receipt of a 10 percent disability rating for the residuals associated with the left index finger laceration.  The rating schedule, which was designed as a guide for evaluating the average impairment in earning capacity as a result of disability, provides for no more than a 10 percent rating for ankylosis of the index finger or limitation of motion of the index finger.  Thus, the symptoms and functional impairment related to the Veteran's left finger disability are adequately compensated by the 10 percent disability rating under Diagnostic Code 7804.  In consideration of the foregoing, the Board finds that manifestations of the Veteran's disability are fully contemplated in the currently assigned noncompensable rating under Diagnostic Code 7804.  For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's left finger laceration residuals, and referral for consideration of extraschedular rating is not necessary.

Initial Rating for Right Ear Tympanoplasty with Chronic Otitis Media

The Veteran's right ear disability is currently evaluated as noncompensable prior to July 17, 2007 under the hyphenated diagnostic code 6211-6200.  The right ear disability is evaluated as 10 percent disabling from July 17, 2007 under the hyphenated diagnostic code 6211-6200.   38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case reveals that Diagnostic Code 7802 is assigned for perforation of the tympanic membrane as the service-connected injury and Diagnostic Code 6200 is assigned for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) as the residual condition.  38 C.F.R. § 4.27.  

Under Diagnostic Code 6200, a maximum 10 percent disability rating is warranted for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination).  A noncompensable rating is not provided.  38 C.F.R. § 4.31. 

Prior to July 17, 2007

In this case, the evidence does not show that the Veteran's right ear disability more closely approximates the criteria for the maximum 10 percent rating under Diagnostic Code 6200 for this portion of the rating period.  The evidence does not show that the Veteran had any drainage from the right ear during the period.  Indeed, at the February 2003 VA medical examination, the Veteran's tympanic membrane was clear, and there was no active ear disease or infection of the middle or inner ear.  This evidence weighs against finding that the Veteran had any infection or drainage during the period.  

Other evidence of record further weighs against finding that the Veteran's right ear disability was manifested by infection or drainage during this portion of the rating period.  A July 2007 private treatment record reveals that the Veteran himself told a private treating medical provider that he had a history of chronic otitis media as a child and had a perforation in 1987 with tympanoplasty repair and had had no problems with the ears until approximately one month before when he was diagnosed with a left ear infection treated with Zithromax.  He stated that he came back for treatment of the right ear when it had suddenly begun to drain copiously.  The Veteran's statement to a treating medical provider is highly probative because he is likely to report accurately the history of symptomatology and onset of current symptomatology when seeking medical treatment.   

In light of the evidence discussed above and the absence of any contrary findings relevant to this portion of the rating period in the record, the Board finds that an initial compensable rating for the Veteran's right ear disability is not warranted.  

From July 17, 2007 

Based on the private medical evidence showing right ear drainage of purulent material on July 17, 2007 and continued drainage for many months thereafter, the maximum disability rating of 10 percent was awarded for the Veteran's right ear disability under Diagnostic Code 6200.  The maximum disability rating available under Diagnostic Code 6210 for chronic otitis externa and Diagnostic Code 6211 or perforation of the tympanic membrane is 10 percent; therefore, a higher initial evaluation is not available under either of those diagnostic codes.  Additionally, the Veteran is not shown to have peripheral vestibular disorder, Meniere's syndrome, loss of auricle, or malignant neoplasm of the ear to warrant a higher schedular rating under any other potentially applicable diagnostic code pertaining to diseases of the ear.  38 C.F.R. § 4.87, Diagnostic Codes 6204-6409.  The Veteran is separately rated for right ear hearing loss; therefore, any diagnostic codes directing evaluation of hearing impairment are not applicable.  38 C.F.R. § 4.14 (2012).  For these reasons, the Board finds an initial rating greater than the currently assigned 10 percent rating for the right ear disability is not warranted.

The Board has considered whether the initial rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321.  In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the staged rating for the right ear disability.  During the portion of the rating period prior to July 17, 2007, the Veteran was not shown to have any complaints, findings, or treatment related to the right ear disability; therefore, the noncompensable schedular rating adequately compensates any associated symptomatology or functional impairment.  Regarding the portion of the rating period from July 17, 2007, the evidence shows chronic purulent drainage from the right ear.  The 10 percent rating under Diagnostic Code 6200 specifically contemplates suppuration (i.e., the formation or discharge of pus).  Thus, the symptoms and functional impairment related to the Veteran's right ear disability are adequately compensated by the 10 percent disability rating under Diagnostic Code 6200 for this portion of the rating period.  In consideration of the foregoing, the Board finds that manifestations of the Veteran's right ear disability are fully contemplated in the currently assigned ratings (i.e., the staged rating) under Diagnostic Code 6200.  For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's right ear disability, and referral for consideration of extraschedular rating is not necessary.
        
Initial Rating Analysis for Right Knee Disability

Prior to December 13, 2007

The Veteran's right knee disability is currently evaluated as noncompensable prior to December 13, 2007 under the hyphenated diagnostic code 5299-5257.  38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case reveals that the disability is an unlisted disease rated by analogy to other impairment of the knee manifested by recurrent subluxation or lateral instability.   

Diagnostic Code 5257 provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability.   

In order for the Veteran to receive the next higher 10 percent under Diagnostic Code 5257, the evidence must show that the service-connected right knee disability has slight impairment manifested by recurrent subluxation or lateral instability.  The Veteran told the February 2003 VA medical examiner that he occasionally had instability of the right knee.  Although the Veteran objectively demonstrated a stable knee on examination and there is no objective evidence of instability during this portion of the rating period, the Veteran is competent to report having occasional instability of the knee, and there is no clear indication that the account of occasional instability is not credible.  Therefore, the Board finds the criteria for an initial rating of 10 percent under Diagnostic Code 5257 for slight impairment of the right knee manifested by occasional instability is met.     

The evidence does not show that a higher rating of 20 percent is warranted for moderate impairment of the knee manifested by lateral instability or recurrent subluxation.  At the February 2003 VA medical examination, the Veteran has reported only occasional instability of the knee and denied having any popping, locking, or effusions involving the right knee.  He also stated that he had never received any steroid shots or had any surgical treatment for the knee.  Physical examination of the right knee showed no quad atrophy, patellar grind, effusion, or focal tenderness.  The demonstrated range of motion was from 0 degrees to 140 degrees, which was within normal limits.  The Veteran's knee was stable to lateral and valgus stressing, and the anterior and posterior drawer tests were negative.  This evidence weighs against finding that the impairment resulting from the Veteran's right knee disability is any more than a slight impairment. 

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under diagnostic Codes 5003 and 5257.  VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997).  The General Counsel  subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59.  VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998).  The General Counsel further held that separate ratings could also be provided for limitation of knee extension and flexion.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

In this case, the Veteran is diagnosed with possible patellofemoral arthritis during this portion of the rating period with subsequent evidence confirming the presence of arthritis; however, a separate rating under Diagnostic Code 5260 or Diagnostic Code 5260 for limitation of motion or based on x-ray evidence of arthritis and painful motion under 38 C.F.R. § 4.59 is not warranted.  The Veteran is not shown to have limitation of flexion or extension to a compensable degree.  Also, the February 2003 VA medical examiner noted that the Veteran's March 2002 x-ray of the knee had been normal; therefore, the diagnosis of "possible" patellofemoral arthritis was speculative and no definitive x-ray evidence of arthritis was shown.  Furthermore, while the Veteran reported right knee pain, no painful motion was demonstrated on examination.  

A higher or separate rating is not available under other potentially applicable diagnostic codes pertaining to the knee.  The evidence does not show that the Veteran's right knee is manifested by ankylosis, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, removal of symptomatic semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258-5259, 5262-5263 (2012).    

From December 13, 2007

The RO resolved reasonable doubt in the Veteran's favor in finding that a 10 percent rating for the right knee disability was warranted based on evidence of a painful joint objectively demonstrated at the VA medical examination conducted on December 13, 2007.  The date of the examination is the effective date of the 10 percent rating.  

Although the Veteran's painful right knee joint was rated under hyphenated diagnostic code 5299-5257 by the RO; the disability is more appropriately rated under Diagnostic Code 5003 for right knee osteoarthritis with painful motion on flexion in this case.  Butts v. Brown, 5 Vet. App. 532, 538 (1993).

Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 

Under Diagnostic Code 5260 provides for a 20 percent rating where there is flexion limited to 30 degrees. A 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. 

In this case, the Veteran demonstrated a range of flexion from 125 degrees to 135 degrees on VA medical examinations performed during this portion of the rating period, to include consideration of Deluca factors.  Thus, the Board finds that the Veteran's limitation of knee flexion is not limited to the degree required for a higher evaluation under Diagnostic Code 5260 for the rating period.  Although he is shown to have some limitation of right knee flexion at the medical examinations conducted during the period, it is not to the degree required for the assignment of a higher evaluation. 

The Board will next consider whether the Veteran is entitled to a separate rating under Diagnostic Code 5261 for limitation of leg extension.  Diagnostic Code 5261 provides for assignment of a noncompensable rating for extension limited to 5 degrees, a 10 percent rating when there is evidence of extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, and higher evaluations for more severely limited extension.

The evidence in this case does not support the assignment of a separate rating under Diagnostic Code 5261 for limitation of leg extension for the period. In order for the Veteran to receive a separate rating for the knee disability under Diagnostic Code 5261, the evidence must show that he had right leg extension limited to 10 degrees or greater during the period; however, the evidence shows that the Veteran was able to fully extend the right knee to 0 degrees throughout the rating period.   

As noted above, the Veteran has been awarded a separate 10 percent disability evaluation for complaints of occasional instability of the right knee for the portion of the rating period prior to December 13, 2007.  Although the Veteran demonstrated a stable right knee at the December 2007 and April 2012 VA medical examinations, there is no indication that the Veteran's prior complaints of occasional instability are not credible or that the reported symptomatology had resolved.  In consideration of the foregoing, the Board finds that the 10 percent rating for occasional instability under Diagnostic Code 5257 also applies to the portion of the rating period from December 12, 2007.  VAOPGCPREC 9-98 (1998).  

In order for the Veteran to be awarded the next higher rating of 20 percent under Diagnostic Code 5257, the evidence must show that the disability picture more closely approximates moderate impairment of the right knee manifested by recurrent subluxation or lateral instability.  

After review of the lay and medical evidence relevant to the period, the weight of the evidence is against finding that the Veteran's right knee is manifested by moderate impairment of the right knee with recurrent subluxation or lateral instability.   For example, at the December 2007 VA medical examination, the Veteran complained of pain with the right knee with flares two to three times per week and stated that he did have popping, locking, and swelling associated with the flare-ups.  The Veteran also objectively demonstrated pain with McMurray testing, mild effusion on the right, and tenderness over the patella on physical examination of the right knee.  Nonetheless, the Veteran demonstrated a full range of motion with full extension and flexion from 0 degrees to 135 degrees.  The VA medical examiner noted that the Veteran's range of motion was not limited by pain, weakness, fatigability, lack of endurance following repetitive use or flares.  See 38 C.F.R. § 4.59.  The Veteran's knee was stable to anterior, posterior, varus, and valgus stress testing.  The Veteran was diagnosed with "mild" osteoarthritis of the right knee.  This evidence weighs against finding that the impairment resulting from the Veteran's right knee disability is any more than a slight impairment.

The April 2012 VA medical examination report further weighs against the finding that the Veteran's right knee disability more closely approximates moderate impairment with recurrent subluxation or lateral instability.  At the VA medical examination, the Veteran reported that he had increased pain that decreased his range of motion making it difficult to walk or bend the knees during flare-ups.  On physical examination, the Veteran demonstrated flexion to 130 degrees and extension to 0 degrees with no objective evidence of painful motion.  The Veteran only demonstrated an additional 5 degree loss on flexion (flexed to 125 degrees) during repetitive-use testing and showed no loss on extension during repetitive-use testing.  The VA medical examiner noted that the Veteran had less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing, as well as tenderness or pain to palpation for joint line or soft tissues of the knee.  The Veteran continued to demonstrate a stable right knee during joint stability tests, and the VA medical examiner specifically checked "No" when asked if there was evidence or history of recurrent patellar subluxation/dislocation.  The April 2012 x-ray taken as part of the VA medical examination showed "mild degenerative changes" of the right knee.  Thus, this evidence shows that the Veteran's right knee disability amounts to no more than a slight or "mild" degree of impairment during this portion of the rating period.  There are no findings to the contrary shown in the Veteran's treatment records relevant to this portion of the rating period.  For these reasons, the Board finds that the disability picture of the right knee does not more closely approximate the schedular criteria for a 20 percent initial rating under Diagnostic Code 5257.       

A higher or separate rating is not warranted under other potentially applicable diagnostic codes pertaining to the knee.  The evidence does not show that the Veteran's right knee is manifested by ankylosis, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, impairment of the tibia and fibula, or genu recurvatum.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262-5263 (2012).  Although the April 2012 VA medical examiner noted a past meniscal tear and meniscectomy in 2006, the maximum disability rating available under Diagnostic Code 5259 for removal of symptomatic semilunar cartilage is 10 percent.  The Veteran is already in receipt of a 10 percent rating for the right knee disability; therefore, a higher rating under Diagnostic Code 5259 is not available.  

The Board has considered whether the initial rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321.  In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the staged rating for the right knee disability.  

During the portion of the rating period prior to December 13, 2007, the Veteran had complaints of pain associated with the right knee disability that produced no impairment in range of motion to a compensable degree.  The Veteran's complaints of occasional instability are the basis for the award of a 10 percent rating for the entire rating period.  Although a meniscectomy of the right knee was reportedly performed during this portion of the rating period, the current evidence of record does not show that the Veteran had any symptomatology or related functional impairment for a compensable rating during the period.  In January 2012, the Board remanded the issue, in part, to allow the Veteran the opportunity to provide additional information and evidence regarding treatment for the disability.  The Veteran did not respond to the January 2012 letter asking for additional information regarding any medical treatment for the right knee, to include any private treatment.  The VA treatment records added to the record include no details regarding the meniscectomy that reportedly occurred in 2006.  See April 2012 VA medical examination report.  The Veteran's representative stated in January 2013 that they had no additional evidence regarding the Veteran's appeal and asked for the case to be forwarded to the Board immediately for adjudication.  In consideration of the foregoing, the Board finds that the noncompensable schedular rating for the right knee disability adequately compensates any associated symptomatology or functional impairment for the right knee for this portion of the rating period.  

Regarding the portion of the rating period from December 13, 2007, the evidence shows pain with McMurray testing, mild effusion on the right, and tenderness over the patella on physical examination of the right knee.  The Veteran's right knee is also manifested by mild degenerative changes.  The overall disability picture, which contemplates factors such as pain and swelling and any functional impairment related thereto, is found to more closely approximate slight knee impairment.  The 10 percent rating under Diagnostic Code 5257 contemplates occasional instability such that a slight degree of knee impairment is shown.  The separate 10 percent rating under Diagnostic Code 5003 contemplates the Veteran's arthritis and associated painful motion.  The Board also observes that the April 2012 VA medical examiner checked "No" when asked if the Veteran's knee disability impacted his ability to work and commented that the Veteran had a sedentary position at work.  Thus, the symptoms and functional impairment related to the Veteran's right knee disability are adequately compensated by the 10 percent disability rating under Diagnostic Code 5003 for this portion of the rating period.  In consideration of the foregoing, the Board finds that manifestations of the Veteran's right knee disability are fully contemplated in the currently assigned staged rating (i.e., 10 percent under Diagnostic Code 5257 and the separate 10 percent rating under Diagnostic Code 5003) for the portion of the appeal period from December 13, 2007.  For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's right knee disability, and referral for consideration of extraschedular rating is not necessary.
   


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ORDER

Service connection for left ear hearing loss is denied.  

Service connection for a residual scar from the submandibular gland excision is granted.  

An initial rating of 10 percent for GERD is granted for the entire rating period, subject to the laws and regulations governing the payment of monetary awards.

An initial compensable rating for retrograde ejaculation is denied.

An initial rating of 10 percent for left index finger laceration is granted for the entire rating period, subject to the laws and regulations governing the payment of monetary awards.

An initial compensable rating for right ear tympanoplasty with chronic otitis media prior to July 17, 2007 is denied.  

An initial rating in excess of 10 percent for right ear tympanoplasty with chronic otitis media from July 17, 2007 is denied.  

An initial 10 percent rating for occasional right knee instability prior to December 13, 2007 and from December 13, 2007 (i.e., the entire rating period) is granted, subject to the laws and regulations governing the payment of monetary awards.  

An initial rating in excess of 10 percent for the right knee osteoarthritis with painful joint motion from December 13, 2007 is denied.  





REMAND

After reviewing the record, the Board finds that additional development is necessary before proceeding with appellate review regarding the issues of service connection for a disability manifested by headaches, service connection for a skin rash, and a higher initial rating for the lumbosacral spine disability.   

Service Connection for Headaches

In January 2012, the Board remanded the issue of service connection for headaches, in pertinent part, to schedule the Veteran for a medical examination to determine whether the Veteran has chronic disability manifested by headaches and, if so, whether the disability is consistent with a clinically known diagnosis or due to undiagnosed illness.  The Board directed the VA examiner to provide an opinion, for any known clinical diagnosis manifested by headaches, on whether it was at least as likely as not that the disability was incurred during service.  

Pursuant to the Board's remand order, the Veteran underwent a medical examination for headaches in April 2012.  The VA medical examiner noted that the Veteran reported a history of headache that had elements of both tension and migraine headaches.  The VA medical examiner further wrote that it sounded like a combination of multiple factors such as stress, diet, hormones, sensory stimuli, and change in environment precipitated his headaches, with stress being the most likely factor.  However, the VA medical examiner did not provide an opinion on whether the Veteran's disability manifested by headaches was consistent with a clinically known diagnosis or was otherwise due to an undiagnosed illness or medically unexplained chronic symptom illness.  The VA medical examiner also did not provide an opinion on whether the disability was incurred during service.  For these reasons, the Board finds that the April 2012 VA medical examination report is inadequate and a supplemental medical opinion is needed.  See Stegall v. West, 11 Vet. App. 268 (1998).    



Service Connection for a Skin Rash

In January 2012, the Board remanded the issue of service connection for a skin rash in order to provide the Veteran with a medical examination and obtain a medical opinion on the nature and etiology of the Veteran's claimed skin disability.  The Board directed the VA medical examiner to determine whether the Veteran had a chronic disability manifested by skin rash and, if so, whether state whether the disability was consistent with a clinically known diagnosis or was otherwise due to an undiagnosed illness.  The Board further directed the VA medical examiner to provide an opinion on the likelihood that the Veteran's skin rash, if attributed to a known clinical diagnosis, was incurred during service.  

Pursuant to the Board's remand order, the Veteran underwent a medical examination in April 2012.  In the diagnosis section of the examination report, the VA medical examiner wrote that the Veteran had "undiagnosed itchy dry skin"; however, the VA medical examiner later opined that, given the Veteran's history, he most likely had eczema of the hands.   Thus, the appropriate diagnosis for the Veteran's claimed skin disability, to include whether the Veteran's skin rash is attributable to an undiagnosed illness, is not clear from the VA medical examination report.  Additionally, the Veteran's VA treatment records include recent complaints of skin lesions and other potential diagnoses of a current skin disability.  See August 2012 VA primary care note (including assessments of acne of the chest and neck versus rosacea or folliculitis and pearly skin lesion on the right side of the chest).  This evidence should be considered by the VA medical examiner in determining the nature of the Veteran's current skin disability.

The Board also observes that the VA medical examiner wrote that the rashes in the claims file all referred to rashes that were on the chest, back, and arms, and the noted etiology was heat rash or cholinergic urticaria.  The VA medical examiner then opined that the Veteran's current rashes did not appear to be related to the current complaint of rashes.  However, it does not appear that the VA medical examiner has considered all relevant entries in the service treatment records.  In addition to complaints of rash on the chest, back, and arms, the Veteran complained of rash involving the toes, neck, stomach, the body, and a genital rash during service.  In addition to cholinergic urticaria and heat rash, the skin rashes were attributed to assessments of rule out athlete's feet, allergic rash, stress urticaria, rule out tinea corporis, and questionable tinea cruris during the period from 1981 to 1999.  In consideration of the foregoing, the Board finds that further medical examination and a supplemental medical opinion is warranted.  See Stegall v. West, 11 Vet. App. 268 (1998).    

Initial Rating for L5-S1 Fusion

When the Veteran underwent the April 2012 VA medical examination performed pursuant to the Board's remand order, the VA medical examiner checked "No" when asked if the Veteran had radicular pain or any other signs or symptoms due to radiculopathy.  No neurological impairment was identified.  Review of the Veteran's VA treatment records, however, reveal that the Veteran has since told a VA primary care medical provider that he had had an outside EMG performed by a neurologist and his complaints of bilateral burning feet and radiating leg pain had been attributed to peripheral neuropathy caused by the back disability.  See July 2012 VA primary care note.  The Veteran's competent report that he has been diagnosed with peripheral neuropathy of the lower extremities indicates a material change of condition since the April 2012 VA medical examination, particularly regarding the neurological impairment associated with the low back disability.  Therefore, a remand for further medical examination is necessary.  See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991).      

Accordingly, issues of service connection for a disability manifested by headaches, service connection for a skin rash, and a higher initial rating for the lumbosacral spine disability are REMANDED for the following actions:

1.  After obtaining any necessary consent and authorization for release, obtain any outstanding treatment records pertaining to medical treatment for the Veteran's low back disability, to include any diagnosis and treatment for lower extremity radiculopathy from 2001 to the present.  Once obtained, the treatment records should be associated with the record. 

Any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e).

2.  Obtain a supplemental medical opinion from the April 2012 VA medical examiner who evaluated the Veteran's headache disability (or another appropriate medical professional, if the examiner is unavailable).  Another medical examination is not necessary unless needed to provide the requested opinion.  

a.  Based on review of the appropriate records, and prior examination of the Veteran, the examiner should provide an opinion on whether the Veteran has a chronic disability manifested by headaches and, if so, whether the disability is consistent with a clinically known diagnosis or is due to an undiagnosed illness or medically unexplained chronic multisymptom illness.

b.  If the headaches are attributed to a known clinical diagnosis, then the examiner should opine as to whether it is "at least as likely as not" (i.e., to at least a 50-50 degree of probability) that the disability was incurred during service, to include the documented complaints of, and treatment for headaches during service.

In reviewing the service treatment records, please consider the March 1998 service report of medical history showing that the Veteran checked "Yes" when asked whether he then had or ever had frequent or severe headache, as well as the May 1999 complaint of headaches.  

A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report.  If the examiner cannot answer any question posed without resorting to speculation, the examiner should so state, and explain why that is so. 

3.  Schedule the Veteran for appropriate medical examination for the skin disability. 

All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner must confirm that the record was reviewed in the examination report. 

a.  Based on review of the appropriate records, the examiner should provide an opinion on whether the Veteran has a chronic disability manifested by a skin rash and, if so, whether the disability is consistent with a clinically known diagnosis or is due to an undiagnosed illness or medically unexplained chronic multisymptom illness. 

b.  Based on review of the appropriate records, the examiner should state, for each diagnosis, whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any current skin disorder had its onset during, or is otherwise causally or etiologically related to, active military service.   

A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report.  If the examiner cannot answer any question posed without resorting to speculation, the examiner should so state, and explain why that is so

4.  After action (1) above has been completed, schedule the Veteran for a VA medical examination to assess the current nature and severity of his service-connected low back disability, to include any associated neurological impairment such as radiculopathy. 

All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must confirm that the record was reviewed in the examination report.

a.  Based on review of the appropriate records, the examiner should identify what symptoms the Veteran has manifested since the April 2012 VA medical examination that are attributable to his service-connected low back disability, to include range-of-motion findings. 

b.  The extent of any incoordination, weakened movement, and fatigability on use due to pain must also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination as well as on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 

c.  The examiner should consider the Veteran's complaints pertaining to the lower extremities and provide an opinion on whether the Veteran currently suffers from lower extremity radiculopathy and/or peripheral neuropathy due to his service-connected low back disability.  If so, the examiner must specify its date of onset. 

d.  The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected low back disability (and associated radiculopathy) and any non-service-connected disorders which may be found.  If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should so state in the examination report.

A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report.  If the examiner cannot answer any question posed without resorting to speculation, the examiner should so state, and explain why that is so.

5.  After any additional notification and/or development deemed necessary is undertaken, the issues of service connection for a disability manifested by headaches, service connection for a skin rash, and a higher initial rating for the lumbosacral spine disability should be readjudicated.  If any benefit sought on appeal remains denied, the Veteran and the representative should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues.  An appropriate period of time should be allowed for response by the Veteran and the representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

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

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


______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs