Citation Nr: 1319660	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  05-35 934	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for arthralgia of the skeletal joints. 

2.  Entitlement to service connection for muscle pain of the bilateral legs and feet. 

3.  Entitlement to service connection for right ankle strain. 

4.  Entitlement to service connection for right foot pain. 

5.  Entitlement to service connection for gastrointesintal disability, claimed as a stomach disorder. 

6.  Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. 

7.  Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. 

8.  Entitlement to an increased disability rating for degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling from April 30, 2004 to February 22, 2005 and from April 1, 2005 to October 4, 2005 and as 40 percent disabling from March 1, 2006.   

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


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty from April 1984 to September 1998. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2004, August 2004, and April 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In October 2009, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the Waco, Texas RO.  A transcript of the hearing has been reviewed and is of record. 

In June 2011 and September 2012, the case was remanded for further development. 

The Veteran's claim for psychiatric disability was initially adjudicated as limited to the diagnosis of PTSD.  In accordance with the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been recharacterized to encompass all acquired psychiatric disabilities diagnosed.   

The issues of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is 
addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Arthralgia of the skeletal joints is reasonably shown to be related to service.

2.  Myalgia, manifested by muscle pain of the bilateral legs and feet, is reasonably shown to be related to service.

3.  The Veteran is not shown to have a current right ankle disability.  

4.  The Veteran is not shown to have a current right foot disability.

5.  The Veteran is reasonably shown to have a functional gastrointestinal disorder, diagnosed as gastroparesis, related to service.  

6.  The Veteran is not shown to have a current respiratory disability.

7.  The Veteran's current depression is reasonably shown to have been caused, at least in part, by his service-connected low back disability.

8.  The Veteran's current PTSD has been aggravated by his service-connected low back disability.  

9.  From April 30, 2004 to February 22, 2005 and from April 1, 2005 to October 4, 2005, the Veteran's low back disability was not manifested by forward flexion to 30 degrees or less, ankylosis or incapacitating episodes requiring bedrest prescribed by a physician having a total duration of at least 4 weeks over 12 months.  

10.  From March 1, 2006, the Veteran's low back disability has not been manifested by unfavorable ankylosis or incapacitating episodes requiring bedrest prescribed by a physician having a total duration of at least 6 weeks over 12 months.  
   

CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for arthralgia of the skeletal joints are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012).

2.  The criteria for entitlement to service connection for myalgia are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012).

3.  The criteria for entitlement to service connection for right ankle disability are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012).

4.  The criteria for entitlement to service connection for right foot disability are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012).

5.  The criteria for entitlement to service connection for functional gastrointestinal disability are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012).

6.  The criteria for entitlement to service connection for respiratory disability are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2012).

7.  The criteria for entitlement to service connection for psychiatric disability, to include depression and PTSD, as secondary to service-connected low back disability are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2012).

8.  From April 30, 2004 to February 22, 2005 and from April 1, 2005 to October 4, 2005, the criteria for an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.71a, Diagnostic Code 5243 (2012).

9.  From March 1 2006, the criteria for an evaluation in excess of 40 percent for degenerative joint disease of lumbar spine are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.71a, Diagnostic Code 5243 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).   Proper VCAA notice must inform the Veteran 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.  See 38 C.F.R. § 3.159(b)(1).

May 2004, March 2005, March 2006 and June 2008 letters explained the evidence necessary to substantiate the claims herein decided and VA and the Veteran's responsibilities.  The letters also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, the March 2006 letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, after all of the notice was provided, the case was readjudicated a number of times, including by an August 2007 statement of the case (addressing service connection for PTSD and entitlement to a TDIU) and an August 2007 supplemental statement of the case (addressing the other issues on appeal).  Accordingly, the Veteran was not prejudiced by any error in the timing of the notice provided.  

With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, private treatment records, the reports of VA examinations and the assertions of the Veteran and his representative, including his October 2009 hearing testimony.  

Regarding the Veteran's claim for PTSD on a direct basis, the RO specifically considered whether attempts to verify the Veteran's reported stressors during service through contact with the Joint Services Records Research Center (JSRRC).  However, the RO determined that the Veteran had not provided sufficient information for such stressor verification to take place.  The RO appropriately included in the claims file an April 2007 memorandum outlining this formal finding, along with its verification efforts up until that point.  The Board finds that no further stressor development action by the RO is necessary.  

Regarding whether a specific examination or opinion was required to determine whether the Veteran has any current respiratory, independent right ankle or independent right foot disability related to service, as indicated in the analysis below, the existing evidence of record, including the previous VA examinations performed, are sufficient to decide these claims.  38 C.F.R. § 3.159(c)(4).  

Regarding a more current examination pertaining to the claim for increase for low back disability and regarding the claim for direct service connection for PTSD, the Veteran was scheduled for a VA psychiatric examination, a VA spine examination and a VA general medical examination, all to take place on July 28, 2011.  However, he failed to report for these examinations.  In a subsequent, September 2011 report of contact, the RO noted that it had contacted the Veteran due to his failure to report.  The Veteran indicated that he was not able to come to the examinations because he was having surgery on his shoulder.  He had attempted to call the VAMC to reschedule but was not able to reach a live person, only a recording.  He was advised that the examinations would be rescheduled.  

Subsequent VA records show that the examinations were rescheduled for late September 2011 and then November 2011.  However, the Veteran failed to report for these examinations as well.  Additional examinations were scheduled for December 14, 2011 but the Veteran once again failed to report.

In a July 2012 letter, the Veteran reiterated that he missed the September 20011 examination because of his right shoulder surgery.  He also indicated that he had informed VA that he could not report for an examination in November 2011 due to having left shoulder surgery.  Then, when the VA examinations were scheduled for December 2011, the VA hospital sent him the new appointment date and time without asking him on what date he could go or if he was healthy enough to report.  Thus, as he was still recovering from the shoulder surgery, he was also unable to make it to these VA examinations.  Pursuant to the September 2012 remand, new examinations were scheduled for November 26, 2012.  However, the Veteran failed to report and has not provided any good cause reason for doing so or indicated a desire to reschedule the examinations.  Accordingly, as good cause to reschedule the most recently scheduled VA examinations has not been shown, the Board finds that VA has met its duty to assist in affording the Veteran with VA examinations in regard to the claims for service connection for PTSD, for an increased rating for low back disability and for entitlement to a TDIU.     
The Board also notes that in response to an August 2011 inquiry, the Social Security Administration (SSA) indicated that they currently either did not have a medical file pertaining to the Veteran or were unable to locate the medical record.  As there is no indication that further development will lead to obtaining such documentation, the Board finds that VA has met its duty to assist with respect to these records.

Regarding the Veteran's hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).   Here, during the Veteran's October 2009 hearing, all parties agreed as to the issues on appeal, including the issues herein decided.   The parties also discussed the evidence contained in the record.  Additionally, the Board's subsequent remands further instructed the RO/AMC to obtain additional records and to afford the Veteran with specific VA examinations to address the likely etiology of his claimed psychiatric disability and to address the current nature and severity of his service-connected lumbar spine disability.   There is no indication the Veteran has any additional evidence to submit or that there is any additional evidence for VA to obtain in relation to the claims herein decided.  Thus, the Board finds that the Board's duties under Bryant have been met.  Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claims. 

The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claims.  No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claims.




III.  Analysis

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).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also 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).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a).  A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

The law also provides for service-connected compensation for Persian Gulf Veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  That is, if not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more by December 31, 2016.  38 C.F.R. § 3.317(a)(1)(i).  See also 76 Fed. Reg. 81,834, 81,835 (interim final rule December 29, 2011). 

A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War.  See 38 C.F.R. § 3.317(e)(1).  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e)(2).

Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended.  38 U.S.C.A. §§ 1117, 1118.  Per these changes, the term 'qualifying chronic disability' was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  38 C.F.R. § 3.317(a)(2)(i).

If probative evidence exists that the Veteran's disability pattern is either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, including but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases), then service connection must be granted for a Gulf War illness.  See 38 C.F.R. § 3.317(a)(2)(i) and (ii). 

Effective August 15, 2011, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was again amended.  Specifically, an explanatory Note was added to 38 C.F.R. § 3.317(a)(2)(i)(B)(3).  See 76 Fed. Reg. 41,696 (July 15, 2011).  This Note states that functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia.  These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 

For purposes of this presumption, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii). 

However, regulations clarify that there must be "objective indications of a qualifying chronic disability," which include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(1) and (3).  A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period.  The sixth month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  38 C.F.R. § 3.317(b).

With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service.  Gutierrez  v. Principi, 19 Vet. App. 1, 8-9 (2004).  That is, under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, the symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of "direct service connection," VA cannot impose a medical nexus requirement.  Further, lay persons such as the Veteran or his spouse are competent to report objective signs of illness such as joint pain or fatigue.  Gutierrez at 9-10. 

To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006).  The Board must explain its selection of an analogous Diagnostic Code.  38 C.F.R. § 3.317(a)(5).    

Compensation shall not be paid under 38 C.F.R. § 3.317  for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(a)(7).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372   (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").   

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102.

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).





A.  Orthopedic Disabilities

The service treatment records show that in August 1989, the Veteran complained of pain in both calves for the past three days.  Physical examination showed bilateral calf pain on extension.  The diagnostic assessment was possible pulled muscles.  

A July 1994 progress note shows that the Veteran stepped in a hole while running.  After he finished the run, he noticed swelling.  He sought medical evaluation and an X-ray showed a cortical irregularity in the anterior corner of the tibia.  Physical examination showed moderate edema laterally, moderate ecchymosis laterally and a nontender anterior distal tibia.  There was also pain with inversion.  The diagnostic impression was grade I+ sprain of the right ankle and a soft cast was recommended.  An August 1994 follow up progress note indicates that the ankle was nontender with no ecchymosis or edema.  The diagnostic impression was resolved ankle sprain and the Veteran was advised to wear an ace wrap when active.  In November 1994, the Veteran reported persistent pain when running and that the ankle was not stable.  Physical examination showed pain with inversion and questionable laxity.  The diagnostic assessment was status post ankle sprain with possible disruption of the ligaments.  

A November 1994 progress note shows that the Veteran was seen for follow-up care for his right ankle.  He stated that his ankle pain was about the same and he was given ankle exercises to do.  He was instructed to return for a follow up appointment in January 1995. 

On his May 1998 report of medical history at separation, the Veteran indicated that he currently and/or previously had broken bones, foot trouble, cramps in his legs and swollen or painful joints.  He also indicated that he did not know if he had had a trick or locked knee.   He affirmatively indicated that he had had knee pain for the past 6 years.  At his May 1998 separation examination, musculoskeletal functioning was found to be normal. 

At a June 2004 VA general medical examination, the Veteran reported that he was taking over the counter Tylenol and applying Ben Gay for control of arthralgia and myalgia.  He exhibited a normal gait.  Pertinent diagnoses included generalized arthralgia of unknown etiology and myalgia pain in the muscles of both legs of unknown etiology. 

At a June 2004 VA muscles examination, the Veteran reported that the onset of his pain in both leg muscles dated back to sometime in the mid 80s.  He indicated that he was seen for the condition at least a few times during service.  However, the Veteran was only able to find one documented incident.  The Veteran reported that after service, he began working as an electronic technician for the Post Office.  He did all kinds of repair work on the machines.  He indicated that the pain in the legs would come and go.  It had been precipitated at work by standing and walking and sometimes at night he would wake up in pain.  The pain was cramping in nature and localized to the calves of both legs.  When he experienced the pain during work, he had to sit down and this interfered with his job.  

Physical examination showed 5/5 muscle strength in all muscle groups of the lower extremities.  There was no loss of muscle function.  The Veteran did not have any difficulty with walking and did not have any difficulty with lying down or sitting down for the examinations.  Joint function was not affected.  Lab testing was largely normal except for a slightly elevated uric acid level.  The examiner diagnosed the Veteran with myalgia in both legs of unknown etiology.  There did not appear to be any muscle weakness on examinations.  There did appear to be a mild functional impairment, as during episodes of the myalgia the Veteran could not do his occupational duties and had to sit down and rest.  As the Veteran was seen for this condition in service, it was at least as likely as not service connected.  

At a June 2004 VA joints examination, the Veteran reported generalized joint pain and a specific right ankle problem.  Concerning the right ankle, the examiner noted that the Veteran was diagnosed with the right ankle sprain in service in 1994.  

The Veteran complained of generalized arthralgia that had begun somewhere around 1994 or 1995.  He indicated that he did not see any doctor for the pain during service.  He reported stiffness of all the joints in the morning, which lasted 1 to 2 hours and would get better after a hot shower.  He also felt fatigue from the arthralgia and reported flare ups about three times per month, including due to exposure to cold weather.  He noted that he did have a motor vehicle accident in the early 1990s after the Gulf War ended.  However, there was no focal injury from the accident.  He reported that during the days that he did have flare ups of pain, he would take the day off from work.  

Physical examination of the upper extremities was essentially unremarkable with no limitation of any range of motion.  Physical examination of the hip joints showed limited range of motion due to back pain.  Examination of the knee joints showed complete range of motion with crepitation on palpation.  Examination of the ankle joints also showed complete range of motion with no acute deformity found.  The diagnoses were generalized arthralgia of unknown etiology and history of right ankle sprain with no current functional impairment.  

A December 2004 VA rheumatology examination showed that the Veteran reported joint pains around the shoulders and hands if he was very active.  He also had occasional pains in the feet if he stood for too long.  Additionally, his primary pain was in his back with persistent neuropathy in the left leg.  Regarding the peripheral joints, he reported no swelling, redness or warmth and he denied any major morning stiffness.  He did not note any other significant problems.  

Physical examination showed completely normal range of motion of the upper and lower extremities with no limitations in any areas.  Strength and reflexes were normal.  No instability or synovitis was noted.  The lungs were clear, heart sounds were normal and the abdomen was soft and benign.  Knee and ankle X-rays were completely normal.  The examiner noted that the Veteran had some aches and pains in the joints that seemed to be secondary to overuse and perhaps very early osteoarthritis.  The examiner did not believe that the Veteran currently had any inflammatory disease.  

In a February 2005 statement, the Veteran indicated that since injuring the right ankle in service, his right foot no longer touched the ground/floor the same way as his left because he had developed calluses on the heel and on both sides of the bottom of his right foot right where his toes began while his left foot had almost no trace of calluses.  He indicated that when he walked, he had to walk short distances because his foot would start to hurt around his ankle and become sore.  

At a December 2005 VA Gulf War examination, the Veteran reported that he was experiencing continuous pain in the joints and that he was constantly sore.  He indicated that he had difficulty grasping objects.  He reported pain in the legs, knees, ankles, shoulders, hands, wrists and neck.  The Veteran did not report any right foot symptoms.  He also specifically reported coldness of the lower extremities along with bilateral calf pain.  

Physical examination showed that the Veteran had an abnormal, slow and halting gait, which impaired walking.  Examination of the abdomen was unremarkable.  Muscle examination showed 4/5 muscle strength of the upper and lower extremities with muscle spasm in the lower back. These abnormalities were noted to be secondary to back pain.  Examination of the feet was normal.  There was a 1/2 to 1 inch difference in the circumference of the left mid thigh as compared to the right.   Neurological examination showed decreased dull sensation to the dorsal aspect of the left foot.  The pertinent diagnoses were generalized arthralgia with complaint of joint pain and some decrease in range of motion of the majority of joints examined with no abnormal lab results and myalgia with complaints of calf and foot muscular pain but no abnormal physical findings or abnormal lab results.  The examiner found that the Veteran had some aches and pains in the joints that seemed to be secondary to overuse and perhaps very early osteoarthritis.  The examiner did not believe that the Veteran had any inflammatory disease.  

At a December 2005 VA joints examination, the Veteran reported pain in the legs, knees, ankles, shoulders, hands, wrists and neck.  He also had constant back pain.  He reported constant pain and numbness in the left leg.  He reported that his joint pain was constant and severe.  He noted that he sprained his right ankle in July 1994.  

Physical examination showed that the Veteran had a slow gait.  Range of motion of the right ankle was 20 degrees dorsiflexion and 40 degrees plantar flexion.  There was no additional limitation of motion on repetitive use.  A right ankle X-ray showed that bones, joints and soft tissues were normal.  The pertinent diagnosis was generalized arthralgia of unknown etiology, probably overuse.  

An April 2006 VA neurology progress note shows that the Veteran was exhibiting a headache that was thought to be due to multiple issues, including anxiety/depression and sleep disorder.  He also had a procedure coming up for his back pain related issues and it was noted that the headaches may have been part of a syndrome of fibromyalgia.  

Private medical records from April 2006 to September 2007 show ongoing treatment primarily for right shoulder pain but also for overall body pain.  In April 2006, the Veteran was thought to have fibromyalgia syndrome.  However, it was noted that other illnesses that might mimic these symptoms needed to be ruled out.  In May 2006, the Veteran reported pain all over his body.  Range of motion of the joints was full.  The pertinent diagnosis was fibromyalgia syndrome. 

At an April 2008 VA examination, the Veteran reported that the onset of muscle pain in the bilateral legs and arthralgia was in the 1990s.  He indicated that he had been treated with injections to both knees and shoulders with the last injection four months previously.  He reported constant pain and intermittent stiffness to the ankles, knees and shoulders.  He reported current symptoms of unexplained fatigue, sleep disturbance, headache, constipation, depression, anxiety, difficulty concentrating and musculoskeletal symptoms.  He indicated that the symptoms were constant or nearly so and were exacerbated by bad weather and insufficient sleep.  The reported musculoskeletal symptoms included widespread musculoskeletal pain, stiffness, muscle weakness, myalgia, arthralgia and decreased exercise tolerance.  He reported symptoms in the back of both arms and on both sides of the body.  

Regarding muscular symptoms, the Veteran reported generalized fatigability and weakness.  He also reported pain and stiffness in the knees, ankles and shoulders, along with constant lower back pain.  He reported intermittent bilateral hand pain, with overall decrease in strength and dexterity of the hands.  The Veteran used his cane frequently.  

Physical examination showed an antalgic gait.  There was 4/5 motor strength in the bilateral upper and lower extremities with no sensory or reflexive abnormalities noted.  Range of motion of the right ankle was 20 degrees dorsiflexion and 30 degrees plantar flexion.  There was no limitation of motion after repetitive use.  
Examination of the feet did not show any abnormal findings.  Examination of the hands was also unremarkable.  Additionally, pulmonary examination was completely normal and abdominal examination was unremarkable.  The pertinent diagnoses included chronic pain syndrome, generalized arthralgia, myalgia and mild osteoarthritis of the right shoulder.  It was noted that there were no abnormal lab results.  Regarding the myalgia, the examiner noted that the Veteran complained of calf and foot muscular pain but that there were no abnormal physical findings or abnormal test results.  Regarding the arthralgia, the examiner noted that there was some decrease in the range of motion of the majority of the joints tested and no abnormal lab results except finding of osteoarthritis of the right shoulder.  Also, a rheumatology consultation had been completed previously.  

The examiner found that the Veteran did not meet the VA criteria for fibromyalgia as he had no tender points.  He indicated that the Veteran suffered from chronic pain syndrome, generalized arthralgia and myalgia.    

Private medical records from July 2008 to August 2008 show that the Veteran was diagnosed with inflammatory arthropathy and then rheumatoid arthritis.  He was treated with methotrexate injections.  A July 2008 ultrasound of the right ankle showed that there was slight fluid accumulation on the lateral aspect, bony irregularity on the anterior aspect of the talus and tortuous vessels noted on the medial aspect.  July 2008 X-rays of the feet and ankles showed cystic changes over the first metacarpal joint on the right.  Soft tissue swelling and juxtarticular osteopenia was noted along the metatarsophalangeal joints and the tarsal bones.  There was no evidence of a calcaneal spur.  The ankle joints were unremarkable otherwise but there was soft tissue swelling.  The conclusion was findings compatible with inflammatory arthropathy.  

During the October 2009 Board hearing, the Veteran testified that he been diagnosed with the fibromyalgia.  He felt like a lot of his joint difficulties began because of working on vehicles and snow in cold weather during service.  He indicated that during service, he did not receive any medical attention for the generalized joint or muscle problems.  He just did things like use Ben Gay and tried to keep the muscles and joints warm.  

Regarding the Veteran's claimed arthralgia of the skeletal joints, the evidence does show currently diagnosed disabilities manifested by this symptomatology, as the Veteran has been diagnosed with chronic pain syndrome, generalized arthralgia and arthropathy.  Also, the Veteran has been noted, at least in December 2005, to have some reduction of motion in the affected joints.  Additionally,  the June 2004 VA general medical examination and June 2004 VA joints examination, along with the December 2005 VA joints examiner, found that this underlying disability was of unknown etiology, suggesting that it could qualify for service connection under 38 C.F.R. § 3.317(a)(2)(B)(2) (i.e. as an unexplained chronic multisymptom illness similar to fibromyalgia).  The December 2004 VA examiner and the December 2005 VA examiners did find that the disability either "seemed to be due to overuse" or was "probably due to overuse", thus providing an actual explanation for the underlying disability.  However, in so doing, they did not indicate whether or not that overuse was service-related.  The Board notes that the Veteran spent a full 14 years of his adult life in the military, more time than he spent in the adult workforce.  He has also testified that he began having the underlying joint pains in service and that they have continued ever since, a matter on which he is competent to testify.  Additionally, the Board does not find a basis for finding his testimony not credible.  Consequently, reasonable doubt may be resolved in the Veteran's favor as to whether at least some of the cited "overuse" occurred in service.  38 C.F.R. § 3.102.  Accordingly, either on the basis of the presence of a current unexplained multisymptom illness similar to fibromyalgia or on the basis of a direct relationship between the Veteran's service and the current disability, service connection for arthralgia of the skeletal joints is warranted.   

The Board notes that the Veteran was also at one time thought to have "fibromyalgia syndrome" and that fibromyalgia is a disease that is specifically referred to in the regulatory provisions pertaining to service connection for undiagnosed Gulf War related illness.  However, the Board finds that the weight of the evidence is against the Veteran actually having fibromyalgia.  In this regard, although earlier VA and private treatment records show a diagnosis of "fibromyalgia syndrome", the April 2008 VA examiner specifically found that the Veteran did not meet the VA criteria for fibromyalgia as he had no tender points.  Given this more specified diagnostic analysis and the lack of any contrary findings, including in the prior VA and private medical records, indicating that the Veteran does have the requisite tender points necessary to render the fibromyalgia diagnosis, the weight of the evidence is against a finding that the Veteran actually has this disease.  Thus, service connection for fibromyalgia is not warranted.    (The Board also notes that service connection for fibromyalgia was previously denied by a July 2008 rating decision, which the Veteran did not appeal).  

In regard to the claimed muscle pain of the bilateral legs and feet, the Veteran has received a diagnosis of myalgia, or "muscle pain."  Additionally, the June 2004 VA examiner did note at least mild functional impairment.  Consequently, the myalgia may be considered a disability for VA compensation purposes.   Additionally, the June 2004 VA muscles examiner specifically found that it was at least as likely as not that the myalgia was service-connected, noting that the Veteran was seen for the problem in service.  There is no medical opinion to the contrary (i.e. an opinion indicating that the myalgia is not service-related).  Instead, the other medical opinions of record have simply found that the myalgia is of unknown etiology.  Accordingly, the evidence is at least in equipoise as to whether the current myalgia is related to service and service connection for the disability is warranted.  The Board notes that the Veteran does have lower extremity symptomatology associated with service-connected low back disability in the form of left lower extremity radiculopathy.  This disability is already service-connected, however, and as explained above, is not currently on appeal.  

Regarding the right ankle, the medical evidence does not show that the Veteran has been diagnosed with any current right ankle disability.   In this regard, the June 2004 VA examiner specifically found that the Veteran had no current functional impairment of the right ankle.   Also, the December 2005 VA examination specifically showed a normal right ankle X-ray and the examiner did not find any right ankle abnormalities nor render any diagnosis concerning the ankle.   Similarly, the April 2008 VA examiner did not find any right ankle abnormalities nor render any diagnosis concerning the ankle.  The examiner did find that right ankle plantar flexion was limited to 30 degrees, a finding that suggests some level of limitation of motion.  38 C.F.R. § 4.71a, Plate II.  Also, the December 2005 VA examiner did find that right ankle dorsiflexion was limited to 40 degrees, a finding that, in and of itself, could suggest very slight limitation of motion.  However, neither examiner concluded that their dorsiflexion finding was indicative of any underlying current disability of the right ankle.  Additionally, a July 2008 private ultrasound of the right ankle showed that there was slight fluid accumulation on the lateral aspect of the right ankle, a bony irregularity on the anterior aspect of the talus and tortuous vessels noted on the medial aspect.  However, these findings were specifically related to the Veteran's generalized arthropathy/arthralgia, which as explained above, is now separately service-connected.  Accordingly, they do not provide a basis for finding that the Veteran has a current, underlying right ankle disability.  

Further, even if an underlying, current right ankle disability were present, there is no indication that it is related to service.  In this regard, there is no medical evidence indicating any relationship between any current ankle problems and the Veteran's military service.  To the contrary, the service treatment records simply show that the Veteran experienced a right ankle sprain in July 1994 that continued to bother him in November 1994 but then was not shown to bother him thereafter, with the May 1998 separation examination showing that the lower extremities were normal.  Thus, no chronic right ankle disability was shown in service.  Then, post-service, there is no medical evidence of any right ankle problems until 2004, some 6 years after separation from service.  A lengthy interval of time between service and initial postservice manifestation of a "disability" for which service connection is sought is, of itself, a factor against a finding that the disability was incurred or aggravated in service.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).   The Veteran does allege that he has a current underlying right ankle disability related to service.  However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue of whether any current right ankle disability is related to the Veteran's service falls outside the realm of common knowledge of a lay person such as the Veteran.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007))."   Accordingly, as neither a current right ankle disability nor a nexus between any such disability and military service are shown, service connection for such disability is not warranted.  38 C.F.R. §§ 3.303, 3.655; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Similarly, the Veteran is not shown to have any underlying disability of the right foot.  In this regard, none of the VA examiners of record have diagnosed any underlying disability of the right foot, with the December 2005 VA general medical examiner specifically indicating that an examination of the feet was normal.  Although right foot pain has been noted, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).  Additionally, while the  July 2008 X-rays of the feet showed some objective findings (cystic changes over the first metacarpal joint on the right, soft tissue swelling and juxtarticular osteopenia along the metatarsophalangeal joints and tarsal bones), these findings have been associated with the Veteran's now service-connected generalized arthropathy/arthralgia.  Accordingly, they do not provide a basis for finding that the Veteran has any separate underlying disability of the right foot.  The Veteran has also alleged that he has developed calluses on his right foot due to the right ankle injury in service but there is no indication that these calluses constitute an underlying disability of the right foot.  See e.g. Sanchez-Benitez, 13 Vet. App. 282, 285 (1999).

Further, there is no indication that any current right foot problems, other than the generalized arthralgia, are related to service.  Moreover, the specific issue of whether the Veteran has any other current right foot disability manifested by right foot pain (aside from the arthralgia)  related to his service falls outside the realm of common knowledge of a lay person such as the Veteran.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007))."  Accordingly, in the absence of a current, separate underlying right foot disability and the absence of a nexus between any such disability and service, service connection for such disability is also not warranted.  

Respiratory Disability

The service treatment records show that in August 1996, it was noted that the Veteran was being seen for follow up after treatment from a civilian hospital to remove stitches.  The Veteran had been in a car accident.  He reported that he continued to have symptoms of chest pain.  When he would take a deep breath, his chest and neck would hurt.  Also, since the accident he had had a constant headache.  His symptoms were slowly getting better but the main problem was when he initiated deep breaths.  He reported that this would actually make his whole body hurt.  A CT scan of the chest had been negative.  The Veteran did have a chest contusion with laceration of the left forehead, cheek and posterior scalp.  The diagnostic impression was motor vehicle accident with contusion/laceration.   

On his May 1998 report of medical history at separation, the Veteran indicated that he had not had previous shortness of breath, chronic cough, asthma or tuberculosis.  He also indicated that he did not know if he had previously had pain or pressure in his chest.  

At his May 1998 separation examination, all systems, including the lungs, chest and heart, were found to be normal. 

An October 2002 VA chest X-ray showed that the lungs were well-aerated and clear bilaterally.  The costophrenic sulci were clear and the cardiac silhouette was normal for size.  The trachea was midline and the bony structures were normal.  

At a June 2004 VA general medical examination, cardiovascular examination showed arrhythmia but it was noted that the Veteran did not have a cardiac condition.  Examination of the abdomen was unremarkable, as was a neurological examination.  Laboratory testing was essentially normal.   There was a slightly elevated uric acid level.  

The pertinent diagnosis was history of a positive tuberculosis skin test in service with subsequent normal chest X-rays. 

In a June 2004 statement, the Veteran noted that he had never been "officially diagnosed with asbestos exposure."  However, he felt that his breathing problems were caused by this because the barracks he lived in were full of asbestos and the shops he worked in were also filled with it.  Thus, he requested a compensation and pension examination concerning whether his current breathing problems were asbestos-related.  

A February 2005 private chest X-ray produced a diagnostic impression of negative radiograph of the chest.  Similarly a September 2005 chest X-ray produced a diagnostic impression of no active disease.  

At a December 2005 VA Gulf War examination, the Veteran reported that he suffered from a wheeze, chest pain and dyspnea on moderate exertion.  Pulmonary examination showed that palpation was normal and auscultation and percussion were normal in both the left and right chest.  The examiner did not render any pulmonary diagnosis.  

An October 2006 VA ambulatory care progress note shows that the Veteran did not report any shortness of breath, cough or sputum.  

A March 2007 private progress note shows that the Veteran was seen for chest pain.  The pain was recurrent, retrosternal and felt like someone was standing on his chest.  It was noted that the Veteran had a flat affect, which made evaluation somewhat difficult.  Review of systems showed that there was no cough that was consistent with post nasal drip or mild sinusitis.  There was no dyspnea on exertion.  Physical examination showed that the chest was clear to auscultation bilaterally with good air entry.  There were no wheezes or rhonci.  Examination of the heart was unremarkable, as was stress testing.  The diagnostic impression was no evidence of significant cardiovascular disease.  

The evidence does not show that the Veteran has any current respiratory disability.  In this regard, there is no evidence of any abnormal chest X-rays, the December 2005 VA examiner did not find any pulmonary abnormalities, the Veteran did not report any shortness of breath, cough or sputum during an October 2006 VA ambulatory care visit and the March 2007 private physician upon examining the Veteran, specifically found that there was no dyspnea on exertion; that the chest was clear to auscultation bilaterally with good air entry and that there were no wheezes or rhonci.  Also, no respiratory problems were found during an earlier June 2004 VA medical examination.  There is no medical evidence to the contrary (i.e. medical evidence tending to indicate that the Veteran does have a current respiratory disability).  The Veteran has indicated that he feels he does have current breathing problems, including a wheeze, chest pain and dyspnea on moderate exertion, which he attributes to asbestos exposure during service.  Although the Veteran is competent to report that he experiences breathing problems, given the consistent negative medical findings, including the physicians' direct findings and the negative chest X-ray findings, the weight of the evidence is against the presence of any current underling respiratory disability.  Notably, the March 2007 private medical record does show that the Veteran was experiencing chest pain.  As noted above, however, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez, 13 Vet. App. 282, 285 (1999). Accordingly, service connection for respiratory disability is not warranted.  

Stomach Disability

A November 2000 private progress note shows that the Veteran was seen for a follow up visit following an ER visit for abdominal pain.  It was noted that he had been diagnosed with gastritis vs. peptic ulcer disease and placed on Pepcid.  He took the medication for 4 days but stopped it due to loose stools.  His pain was improved but he still had an anxious feeling in his stomach with low grade nausea.  There was no blood in the stool.  The diagnostic assessment was probable gastritis.  

An October 2001 private progress note shows that the Veteran was still experiencing stomach discomfort that was worse when he ate greasy foods.  He was not taking any medication.  The diagnosis was gastritis and the Veteran was given samples of Nexium.  

At a June 2004 VA digestive examination, the Veteran reported that he was stationed in the Persian Gulf for from September 1990 to March 1991 for altogether six months.  He was stationed along the border of Saudi Arabia and toward the end of the war he did enter Iraq.  He was mainly a mechanic, fixing any of the vehicles that did not work.  His gastrointestinal symptoms started in 1992 although he was not able to give the exact month.  He was not sure whether he was ever seen in the service for this condition.  He indicated that he did not seek any treatment after service until around 2002 when a physician in the private sector prescribed Nexium for him.  However, he discontinued this medication because he did not feel it relieved his symptoms too much.  He complained of bloating and heartburn and indicated that he experienced pain toward the epigastrium, as well as the lower part of the chest wall.  He denied any constipation, diarrhea, nausea or vomiting.  He noted that eating greasy and oily foods aggravated the symptoms whereas eating light foods and taking over the counter Tums relieved the symptoms.  Physical examination was unremarkable except that the Veteran appeared to have a small metallic ring in the umbilicus.  The diagnostic assessment was dyspepsia with no radiographic evidence of peptic ulcer, gastroesophageal reflux (GERD) or gallstones.  The examiner found that it was more likely than not that the condition was not related to service as there was no documentation of digestive condition in the service medical records.  Also, the examiner was not familiar with any connection between dyspepsia and Gulf war related illness.  

In a June 2004 letter, the Veteran's wife indicated that she noticed that he had become sensitive to food after he returned from service, which had never been a problem for him before.  He would get symptoms of bloating, stomach cramping, diarrhea and gas.  These symptoms had persisted and worsened over the years. 

At a June 2004 VA general medical examination, the Veteran indicated that he thought he had lost about 15 pounds over the past year but did not know why he had lost that much weight.  He felt that it may have been attributed to his gastrointestinal symptoms.   Examination of the abdomen was unremarkable, as was a neurological examination.  Laboratory testing was essentially normal.
The pertinent diagnosis was gastroesophageal reflux disease without any radiographic confirmation.

At a December 2005 VA Gulf War examination, the Veteran reported current gastrointestinal symptoms including constipation, heartburn and melena.  He indicated that he had to strain during bowel movements and that it felt like the rectum would prolapse.  He also reported pain with the bowel movements.  Examination of the abdomen was unremarkable.   

A March 2007 private progress note shows that the Veteran was seen for symptoms of vomiting and reflux.  Given the severity of the symptoms an espophagogastroduodenoscopy (EGD) was recommended.  The Veteran was preliminarily diagnosed with constipation and hematochezia.  An April 2007 gastric emptying study showed no evidence of gastric reflux but that the Veteran had abnormal gastric emptying half-time equal to 300 minutes.   A subsequent June 2007 note indicates that the Veteran had noticed a remarkable improvement in his gastrointestinal symptoms after taking an antibiotic (erythromycin).  He had less constipation, although this was still somewhat of a problem.  The diagnostic assessments were idiopathic gastroparesis and constipation.  

During the October 2009 Board hearing, the Veteran testified that he never sought treatment for the indigestion he experienced in service.  He used over the counter medication to treat the problem and he was currently doing this as well.  He reported that he experienced gas and bloating and would feel nauseated.   He reported that he had been found to have gastritis in the past.  

The Veteran alleges that he experienced stomach problems during service and that these problems have continued up until the present.  He is competent to make such a report.  Notably, on his report of medical history at separation, he reported that he had not had "frequent" indigestion.  However, this does not mean that he did not experience some indigestion.  Also, as he indicated that he "did not know" whether he had had stomach, liver or intestinal trouble, this does not rule out him experiencing such trouble.  Additionally, he was seen for stomach problems relatively soon after service in November 2000 so there is not a large gap between his separation from service and the first post-service medical evidence of stomach problems.  Accordingly, the Board does not find a basis for finding non-credible the Veteran's report of experiencing stomach problems during service.  

The June 2004 VA examiner did find that the Veteran's stomach problems, diagnosed at that time as dyspepsia, were less likely than not related to service.  However, there is no indication that the examiner considered the Veteran's reported history of experiencing stomach problems during service.  Instead, the examiner simply drew his conclusion based on the Veteran not being seen by medical personnel for the problem during service.  

Subsequently, in April 2007, the Veteran was affirmatively diagnosed with idiopathic gastroparesis, along with constipation.  This was based on a past history of vomiting and reflux and an abnormal gastric emptying study.  The Board finds that the Veteran's idiopathic (i.e. with no identifiable cause) gastroparesis amounts to a functional gastrointestinal disorder (See 38 C.F.R. § 3.317(a)(2)(i)(B)(3)), as its cause has remained unknown.  Additionally, although it is not entirely clear how long he has suffered from this disability, during the June 2004 VA examination, he did report weight loss and was noted to have reported heartburn (i.e. symptoms of GERD) and during the December 2005 VA examination he reported very specific symptoms of constipation, along with heartburn.  Additionally, during the October 2009 hearing, he reported that he continued to experience abdominal symptoms, including gas, bloating and nausea.   All of these symptoms are consistent with gastroparesis.  See http://www.mayoclinic.com/health/gastroparesis/DS00612/DSECTION=symptoms. 

Consequently, resolving reasonable doubt in the Veteran's favor, the Board finds that the gastroparesis can be considered chronic.  See also McClain v. Nicholson, 21 Vet. App. 319 (2007), indicating that a chronic disability is subject to service connection as long as it is demonstrated at some point during the appeal period.  Accordingly, service connection for a functional gastrointestinal disorder, diagnosed as idiopathic gastroparesis, is warranted.  



Psychiatric Disability

Along with the general requirements for service connection, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred.  38 C.F.R. 
 § 3.304(f).    

If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f) (2005).  If, however, VA determines either that the Veteran did not engage in combat with the enemy or that he or she did engage in combat, but that the alleged stressor is not combat related, then his or her lay testimony, in and of itself, is  generally not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain service records or other evidence that corroborate his or her testimony or statements.  See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  See also Cohen, 10 Vet. App. 128, 142 (1997).

A revision to 38 C.F.R. § 3.304(f)(3), however, provides that if a stressor claimed by a Veteran is related to fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(3).


At a June 2004 VA general medical examination, the Veteran reported some memory problems, insomnia and psychiatric symptoms.  Additionally, he indicated that his family members were reporting that he had issues with anger control.  The pertinent diagnosis was symptoms suggestive of PTSD.  

A November 2004 VA psychological evaluation shows that the Veteran reported no prior mental health treatment.  He indicated that he had problems getting stressed out a lot, problems trusting people and a feeling that he wanted to be left alone.  He reported difficulty with sleep.  He indicated that his wife thought that he was somewhat paranoid and reported that he would awaken easily.  The Veteran reported that his appetite was not particularly good.  He preferred isolating and had no close friends.  He was employed as an electronics technician for the Post Office and had interpersonal difficulties at work.  He had had some passing suicidal ideations without any plan or intent.  The Veteran was not homicidal.  He indicated that he would get upset at work about being unable to change things.  He said that he had had a couple of incidents that made him very angry within the past week.  

It was noted that the Veteran was in the Persian Gulf War as a squad leader, close to the front lines.  He remembered seeing a lot of combat and seeing body bags.  He had bad memories of this.  He did not like to talk about his military experiences.  Clinical testing showed a level on the Mississippi scale, which was predictive of PTSD.  He endorsed persistent re-experiencing of trauma through sometimes having nightmares and very frequently becoming distressed and upset if something happened that reminded him of the military.  He also endorsed persistent avoidance of stimuli related to the military as well as numbing of emotional responsiveness.  He indicated that he would always to try and stay away from anything that would remind him of military trauma and that he was never able to get emotionally close to others, never enjoyed the company of others and never felt comfortable in a crowd.  Very frequently, it seemed that he had no feelings.  He tended not to laugh or cry at the same things that other people did.  He had lost many of the interests that he had had before the military.  

He endorsed symptoms of increased arousal.  He indicated that he had trouble falling and staying asleep.  He also had trouble concentrating on tasks.  He had an exaggerated startle response.  He endorsed persistent symptoms of distress and impairment in social/occupational functioning.  Before the military, he had had close friends and he did not have such friends currently.  He had had difficulty maintaining his job.  He felt misunderstood by others, including family.  He had had a hard time talking about his military experience.  He indicated that he just wanted to be left alone.  

Mental status examination showed that motor activity was somewhat retarded, speech was soft and behavior was constricted.  Affect was tearful and blunted and mood reflected PTSD.  The Veteran did report more difficulty concentrating and learning new material, which was probably related to the significant stress he was experiencing.  The diagnosis was PTSD.  

During an April 2005 Veteran's Center intake session, the Veteran was noted to have a flat blunted affect and tense motor activity.  He reported a recent weight change, sleep disturbance, low energy level and suicidal thoughts.  He indicated that when he came to Saudi Arabia during service he was confused and scared.  He noted that he worked in recovery and repair of equipment and that he was attached to a heavy tank unit.  He could not remember the amount of time he was exposed to combat.  He reported stressors of exposure to enemy burnt bodies after firing, destroyed tanks and burning buildings.  None of his buddies were killed or seriously wounded and he did not experience any physical injuries as a result of war zone service.  He reported that he was exposed to hostile fire and to casualties when he went into Iraq.  His feelings after leaving the combat zone and returning to the U.S. included feeling angry, tired and confused.  

Currently, the Veteran reported that he could not trust anyone and could not relax.  Security was a concern and he had problems with anger and control.  He reported that "he did not like anything anymore."  The examining social worker commented that the Veteran had been exposed to traumatic events while in the Persian Gulf.  Subsequent Veteran's Center progress notes show that the Veteran received ongoing counseling from April 2005 to March 2006.  In April 2005, a counselor found that it appeared that the Veteran was having issues with his past war trauma that had begun to show itself in the form of memory problems and poor control at home.  In October 2005, the Veteran reported that he had had another back surgery but that it was not as successful as expected.  In November 2005, he reported that on one occasion while deployed in Saudi Arabia, his vehicle broke down.  He and a fellow servicemember were forced to spend the night in the desert with just one magazine between them, which left him terrified.  He also recounted that he thought about people he had trained who ended up being POWs during the Gulf War.

A June 2005 VA psychiatric outpatient evaluation shows that the Veteran reported that he was not coping well with problems at work at the Post Office.  He had worked there for five years and said that he felt threatened at work because his co-workers talked to each other about beating other people up and he also thought they talked about him when he was not around.  He felt uncomfortable around people in general and did not trust anyone.  He felt constantly as if he were in danger.  

He reported that his mood was generally angry and indicated that he would be interested in receiving medication.  He indicated that he did not sleep well, only a few hours per night and only when he was really tired.  He had low energy and low motivation to do things.  He did not socialize, even with his family.  He admitted to fleeting suicidal thoughts at times but denied entertaining the thoughts or making any plans.  He denied homicidal thoughts.  He indicated that he had nightmares about the Gulf War about two times per month.  He had also had intrusive memories, which he avoided talking about.  He also avoided news of the current war on television.  He indicated that he was far less sociable than he was before the Gulf War.  He reported that he was in Combat in the Gulf war, indicating that he started out as a mechanic but was eventually training others in combat skills and coordinating field exercises for training in combat.  

Mental status examination showed that the Veteran was alert and cooperative but guarded.  His mood was angry and his affect was constricted.  He reported that he occasionally had auditory hallucinations of gunfire or the sound of tanks but these were rare.  There were no overt delusions but the Veteran was quite suspicious of others.  He admitted to passing suicidal thoughts at times but denied plans to harm himself.  He denied homicidal ideation.  He was oriented X 3.  The diagnoses were PTSD, chronic and major depression secondary to PTSD.  

VA mental health progress notes from 2005 to 2008 show continued mental health treatment.  Diagnoses included PTSD and depression.  

At a December 2005 VA Gulf War examination, the Veteran reported memory loss, speech difficulty, psychiatric symptoms, difficulties with interpersonal relationships, depression, loss of control/violence potential, sleep impairment and confusion.  He was tearful at times during the examination and seemed depressed with a flat affect.  

At a March 2006 private psychological evaluation, the Veteran reported depressive symptoms related to his physical pain, functional limitations and traumatic experiences in the military.  He perceived his pain as causing significant disruption in virtually all activities of daily living and work-related activities, including interfering with mood, normal work relations with other people, sleep and enjoyment of life.  The examining psychologist noted that the Veteran reported a significant degree of overall psychological distress, characterized primarily by depression and symptoms related to traumatic experiences while in the military.

An April 2006 Certification of Health Care Provider for Family and Medical Leave act purposes shows that a treating VA psychiatrist reported that the Veteran was being treated for depression and for PTSD.  The psychiatrist indicated that the PTSD was related to military experiences and that the depression was related to the PTSD and also to the Veteran's painful back condition.  The Veteran had required periodic visits with the psychiatrist for medication management and with a counselor for psychotherapy to help him cope with his traumatic experiences and with his pain.  The psychiatrist noted that the Veteran's psychiatric condition had begun in the early 1990s and that his mental condition would likely be chronic but would likely improve with treatment and with successful treatment of his pain.  The psychiatrist found that the Veteran was currently incapacitated because his pain level and his impending surgery had exacerbated his depression.  The psychiatrist expected that the mental state would improve after the surgery if it was successful in reducing his pain.  The psychiatrist noted that presently, the Veteran was unable to perform any type of work.  This was to be re-evaluated, however, after he recovered from his surgery.

In a November 2006 Certification of Health Care provider for FMLA purposes, the Veteran's private neurosurgeon indicated that the Veteran was suffering from chronic depression status post operative previous lumbar discectomy, fusion and spinal cord stimulator implant.  He was also suffering from continued low back pain with left leg pain (L5 radiculopathy).  The neurosurgeon found that the Veteran had been permanently disabled due to the lumbar procedures and his chronic depression.  

In an April 2007 stressor summary, the RO noted that the Veteran's reported stressors included reading about the death of a fellow serviceman he knew in the newspaper; stress in relation to being mobilized to Saudi Arabia and having to tell soldiers under his command that they would be o.k.; seeing body bags being offloaded upon his arrival to Saudi Arabia; hearing shots coming from inside the perimeter while on guard duty and discovering, along with a number of fellow soldiers, that a Lieutenant was pointing a gun at the person who was firing the rounds; apparently witnessing one soldier attacking another soldier with a knife; encountering other soldiers defecting; being stranded briefly with a fellow service member after a vehicle breakdown somewhere near the border of Saudi Arabia; a SCUD missile landing on a tent in a camp where he was stationed with the 507th Maintenance Company, killing several soldiers; and the occurrence of an explosion close to where he was stationed in Riyadh, Saudi Arabia.   

At a November 2008 VA outpatient psychiatric examination, the psychiatrist noted that the Veteran had diagnoses of depression and PTSD, complicated by severe back pain.  Currently, he had cognitive slowing, latency of response and poor recent memory, indicative of possible overmedication.  

The evidence reasonably shows that the Veteran's depression is due at least in part to the pain from his service-connected low back disability.  This is clearly exhibited by the April 2006 certification from his treating psychiatrist, which indicated that the Veteran's depression was related to the back condition and that he had required psychiatric medication and visits to a counselor to cope with this problem.  It is also reinforced by November 2006 certification by the private neurosurgeon, indicating that the Veteran was suffering from chronic depression secondary to his low back condition (i.e. status post operative previous lumbar discectomy, fusion and spinal cord stimulator implant).  Additionally, the November 2008 VA outpatient psychiatric examination report indicates that his depression is complicated by his low back pain.  Accordingly, service connection for depression as secondary to the service-connected low back disability is warranted.  

In regard to PTSD, the evidence reasonably shows that the Veteran has been diagnosed with the disability.  Although there are some notations in some of the examination reports appearing to indicate that the Veteran reported serving in combat, the evidence does not show that he had any actual combat service.  He has reported a number of non-combat stressor events, some of which appear to involve fear of hostile enemy activity.  However, there are no specific medical findings of record indicating that these reported stressor events resulted in PTSD, nor are there any specific medical findings of record indicating that any of these reported stressors are sufficient to support a diagnosis of PTSD.  Instead, the record simply contains more generalized diagnoses of PTSD.  As mentioned above, the Veteran was scheduled for a VA examination to more specifically assess the etiology of any current PTSD but failed to report without good cause.   Accordingly, in terms of direct service connection for PTSD, while the evidence of record contains a current PTSD diagnosis and reported non-combat stressor events in service, it does not contain specific evidence of a link between the reported stressor events and the current PTSD diagnosis' or specific evidence that any of the stressors reported by the Veteran, including those involving hostile enemy activity, are actually sufficient to support a diagnosis of PTSD. Consequently, service connection for PTSD on a direct basis is not warranted.

However, given that the Veteran has been consistently diagnosed with the disorder; given that the November 2008 outpatient psychiatrist found that the Veteran's PTSD was complicated by his service-connected low back disability; given that there is no evidence to the contrary (i.e. evidence tending to indicate that the PTSD is not aggravated by the low back disability) and resolving reasonable doubt in the Veteran's favor,  the evidence reasonably shows that the PTSD is aggravated by the Veteran's low back disability.   Consequently, service connection for PTSD on a secondary basis, due to aggravation, is also warranted.

Ratings for low back disability

Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

As the claim for increase is an appeal from the initial rating assigned, the possibility of staged ratings should be considered.  Fenderson v. West, 12 Vet. App. 119 (1999).  However, the Board finds that staged ratings are not warranted here, as the degree of impairment due to the low back disability has not varied significantly during the appeal period, other than the variation already reflected in the existing ratings assigned.    

Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 
38 C.F.R. § 4.7.

As explained above, the Veteran failed to report for a number of VA examinations scheduled in conjunction with his claim for increase and did not provide good cause for doing so in relation to the most recently scheduled examination.  When a Veteran fails to report for an examination related to a claim for increase, the claim is to be denied.  38 C.F.R. § 3.655.  Accordingly, as a matter of law, the Veteran's instant claim is denied.   See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
However, as explained below, even assuming the claim must be rated on the evidence of record, there is still no basis for awarding an increase.   

In a an August 2004 rating decision, the RO granted service connection for degenerative joint disease of the lumbar spine and assigned a 20 percent evaluation effective April 30, 2004.  The Veteran subsequently appealed the rating assigned.  In an August 2005 decision, the RO granted a temporary total rating for the disability from February 23, 2005 to March 31, 2005 based on surgery requiring convalescence.  A 20 percent rating was again assigned effective April 1, 2005.  In a January 2006 rating decision, the RO granted an increased (40 percent) rating for the lumbar spine disability effective December 7, 2005.  In an April 2007 rating decision, the RO granted a temporary total rating for surgery requiring convalescence effective from October 5, 2005 to February 28, 2006.  The 40 percent rating was continued effective March 1, 2006.  In a June 2007 rating decision, the RO granted a separate, 10 percent rating for left leg radiculopathy as a manifestation of the lumbar spine disability.  The Veteran did not appeal this decision.  Consequently, the consideration of whether there is any separate neurological impairment associated with the lumbar spine disability is not currently on appeal before the Board. 

Private progress notes from the Veteran's treating surgeon from May 2004 to February 2005 show ongoing treatment and evaluation of low back disability.  In May 2004, the Veteran was experiencing increased low back pain due to continued standing.  Sitting root test was mildly positive but there was no weakness or sensory loss.  The surgeon suspected that the Veteran was experiencing mechanical pain secondary to further degeneration at the L4-5 level.  In June 2004 it was noted that a repeat MRI had shown some foraminal entrapment at L4-5, which the surgeon suspected was due to progressive narrowing of the disc level.  The surgeon felt that the area should first be treated conservatively with some transforaminal steroids.  In August 2004, the Veteran had done significantly better after epidural steroid injections as well as physical therapy with stretching.  He had very few symptoms left.  The surgeon noted that because the Veteran did relatively light work, he did not think that surgery needed to be currently considered.  

In November 2004, the Veteran had apparently experienced marked worsening of his pain over the past several days, along with marked rigidity.  He was neurologically intact but was suffering from severe spasm.  The surgeon offered to admit him to the hospital for pain management but the Veteran wished to return home.  He was provided with a Medrol Dosepak and Percocet.  The surgeon suspected that the Veteran would require some type of stabilization surgery at the L4-5 level.  Three days later the Veteran was noted to be clearly improved.  The surgeon decided to proceed with an epidural steroid injection.  An MRI showed an obvious recurrent disc herniation with migration inferiorly at L4-5.  In January 2005, the Veteran continued to have significant pain though it was significantly improved compared to the pain he experienced prior to the epidural injections.  He continued to experience marked muscle spasms in his back and back pain.  He still had a significant degree of spasm in the paraspinal region as well as some mild weakness.  The surgeon felt that the Veteran would be best served by undergoing a stabilization procedure.  

In a June 2004 letter, the Veteran's wife indicated that she married the Veteran in 1991.  He had always complained of back problems.  His back would stiffen at times, which made it hard for him to move around.  There had been several incidents where his back had actually gone out and he was unable to move at all.  This resulted in him being bed-ridden for days until the pain medications and the muscle relaxants began to work.  Most recently, about 1 1/2 years previously, he had underwent back surgery.

Currently, the wife reported that the Veteran was experiencing severe leg cramping along with his back pain.  He was having a lot of trouble doing daily tasks like simply getting out of bed in the mornings, as his back was very stiff and not functioning properly. 

At a June 2004 VA spine examination, the Veteran reported chronic low back pain radiating into the left lower extremity.  He indicated that he experienced flare-ups of pain. sometimes lasting for a few hours, and sometimes for a few days.  The precipitating factors were usually bending down at work.  The alleviating factors were being put on light duty at work and abstaining from household chores.  

Physical examination showed that there appeared to be some loss of lumbar lordosis.  Range of motion was 40 degrees flexion, 5 degrees extension, 10 degrees left and right lateral flexion and 30 degrees right and left lateral rotation.  The Veteran did experience pain at the ends of the range of motion in all directions.  There was objective evidence of painful motion on repetitive use but there did not appear to be any fatigue, weakness or lack of endurance.  The diagnosis was degenerative joint disease of the lumbar spine.  The examiner found that the level of functional impairment from the disability appeared to be moderate.  

A December 2004 Department of Labor certification of medical provider form indicates that the Veteran had had a microdiscectomy L4-5 on the left in October 2002.  A repeat MRI then showed recurrent disc herniation with migration inferiorly at L4-5.  The physician was to proceed with steroid therapy by mouth and via epidural along with other pain medication.  It was possible that the Veteran might require surgery.  It was noted that the Veteran had been experiencing increasing back pain over the past 6 months.  

In a January 2005 letter, the private surgeon summarized the treatment the Veteran had received since October 2002.  He noted that the Veteran had initially been doing well after the October 2002 microdiscectomy.  He was seen again in November 2002 with some residual numbness on the left side and then again in January 2003, at which time he was released to full duty with no significant restrictions.  However, in May 2004, he experienced the increased pain in the back, as well as the left hip and bilateral buttocks.  An MRI was obtained along with X-rays, which revealed collapse at L4-5 with some foraminal entrapment.  The surgeon recommended transformational steroid injections and the Veteran underwent such injections in July 2004 and August 2004.  The Veteran then showed very few symptoms later in August 2004.  However, in November 2004, he returned with dramatic worsening of his pain over a period of several days.  He had markedly increased left radicular pain with marked rigidity.  Neurologically, he was intact but he had severe spasms.  He was prescribed pain medication (a Medrol Dose-Pak and Percocet), which clearly improved his symptoms.  His MRI showed an obvious recurrent disc herniation with migration inferiorly at L4-5.  Later in November 2004 and again on two occasions in December 2004, he received lumbar transforaminal blocks at L4-5.  However, he returned in January 2005 with continued symptoms.  Thus, it was recommended that the Veteran undergo a transforaminal lumbar interbody fusion at L4-5 with T-PLIF spacer grafts and instrumentation from L4 to the sacrum.

In a February 2005 statement, the Veteran indicated that his back had gotten worse to the point where he could not walk straight because it was listing to the left and he had a high degree of pain.  He reported that his back would go out often and that it would take several days of taking muscle relaxants, pain killers and several shots before the pain would be lowered to a tolerable level.  He noted that his surgeon had recommended another surgery, a spinal fusion, which he was going to undergo in the near future.  The back condition made it hard to do his job even though it was not very physical in nature.  The job did require him to bend over and squat down and sometimes his back would collapse while doing these movements, resulting in him requiring assistance to get back up.  

A February 2005 operative report shows that the Veteran underwent a transforaminal diskectomy and removal of recurrent disc decompression 4-5 left with transforaminal posterior lumbar interbody fusion 4-5 left with segmental instrumentation 4-5 bilaterally with lateral mass fusion L4 to L5.  The Veteran appeared to tolerate the procedure well.  

Private surgeon's progress notes from April 2005 to September 2005 show ongoing treatment and evaluation of lumbar spine disability.  On April 1, 2005, the Veteran had some tightness and tenderness over the paralumbar incisions.  Range of motion was restricted on forward flexion.  He was able to do heel toe walking without difficulty.  An X-ray showed that the L5-S1 disc was severely degenerative.  The diagnosis was low back pain with left leg radiculopathy.  The surgeon was not really sure whether the Veteran may have developed symptomatology at the L5-S1 distribution, which seemed a likely possibility.  The Veteran was asked to restrict his activities and was to be tried on a Medrol Dose Pak.   Later in April 2005, the Veteran was noted to be doing quite well, improving significantly after taking the Medrol Dose Pak.  Examination showed good strength.  The surgeon noted that he would be starting the Veteran on an exercise program and that the Veteran could return to light work within the following week or so.  In July 2005, it was noted that the Veteran appeared to have pain emanating from the fifth root or the L5-S1 facet.  The plan was to do an isolated L5-S1 nerve block to see if the pain was emanating from that area.  In September 2005, it was noted that the Veteran had an excellent response to an initial block done at L5.  Thus, the surgeon felt that decompression focally at L5-S1 on the left side was probably the best option for him.  

An August 2005 private pain medicine note shows that the Veteran received a left transforaminal pain block injection at L5.  It was noted that the Veteran's major pain was at L5 and that he was back working full time.  There was no weakness on examination.  

At a June 2005 VA spine examination, the Veteran initially reported that he could not walk.  However, he stood while reporting his medical history, walked into the examination room and was able to get on the examination table.  He also stated that he could not lean forward.  He indicated that his pain was less than 1 year previously and he was back at work with light duties at the Post Office.  He reported moderate flare-ups lasting 2 to 3 days occurring weekly.  He indicated that during the flare-ups he could walk but he could not bend over or sit down.  He reported fatigue, decreased motion, stiffness, weakness, spasm and pain.  He indicated that he was able to walk 1 to 3 miles.  

Examination of the spine showed that the Veteran's gait was antalgic.  There was mild lumbar flattening.  There was moderate guarding, moderate pain with motion and moderate weakness.  There was no spasm.  Active range of motion was 65 degrees flexion with pain beginning at 50 degrees, 20 degrees extension, 20 degrees left lateral flexion, 25 degrees right lateral flexion, 30 degrees left lateral rotation and 30 degrees right lateral rotation.  Passive range of motion findings were identical.  After repetitive use, flexion was additionally limited to 55 degrees predominantly due to pain.  The diagnosis was degenerative joint disease of the lumbar spine.  The disability affected the Veteran's occupational activities by resulting in lack of stamina and pain.  

On his October 2005 Form 9, the Veteran indicated that he continued to have persistent, often severe muscle spasms, with little relief.  

During the December 7, 2005 VA general medical examination, the examiner found that the Veteran's lumbar spine flexion was ankylosed at 15 degrees flexion, so he was unable to stand up straight.  Extension was thus fixed at -15.  Right and left lateral flexion were to 5 degrees and the Veteran could not rotate in either direction.  There was pain on all motion and repetitive motion was not possible due to the Veteran's pain.  The examiner noted that the Veteran's normal occupation was electrical technician and that he had lost 12 weeks of work in the last 12 months due to low back surgeries and pain.  

In a January 2007 letter, the Veteran's private treating surgeon indicated that most recently, the Veteran had undergone a spinal cord stimulator implant in May 2006.  He had also been seen the previously day with radicular pain over the previous 4 days and was prescribed a Medrol Dosepak.  

At a June 2007 VA spine examination, the Veteran reported moderate constant low back pain.  He indicated that he experienced weekly, severe flare-ups lasting 3 to 7 days.  He also indicated that during a flare-up he could not walk for long distances or complete home exercises for his back.  He reported that he could walk more than 1/4 mile but less than a mile.  

Physical examination showed pain with motion, tenderness and weakness of the lumbar spine.  Posture was stooped and the Veteran walked with cane with a slow, antalgic gait.  Lumbar lordosis was present.  Range of motion testing showed that flexion was to 12 degrees with pain beginning at 12 degrees.  After repetitive use, flexion was additionally limited to 5 degrees.  Extension was to 5 degrees with pain at 5 degrees.  There was no additional loss of motion after repetitive use.  Left lateral flexion was to 5 degrees with pain at 5 degrees.  There was no additional loss of motion after repetitive use.  Right lateral flexion was to 10 degrees with pain at 10 degrees.  There was no additional loss of motion after repetitive use.  Right and left rotation was to 10 degrees with pain at 10 degrees.  There was no additional loss of motion after repetitive use.  It was noted that the Veteran had retired in 2007.  The diagnosis was low back degenerative joint disease, postoperative status post spinal stimulator implantation.  The examiner found that the disability prevented the performance of chores, shopping and sports; severely limited exercise and traveling; moderately limited recreation, bathing and dressing; mildly limited feeding; and had no impact on toileting and grooming.  

During the April 2008 VA examination, range of motion of the lumbar spine was flexion to 15, extension to 0, left and right lateral flexion to 5 and left and right rotation to 10.  There was no limitation of motion after repetitive use except flexion was limited to 10 degrees due to fatigue.  

During the October 2009 Board hearing, the Veteran testified that he felt he deserved a higher rating for his low back disability because of incapacitating episodes.  He indicated that he had to sleep in a recliner and rarely would get out of bed.  He also indicated that he required assistance in showering, dressing and going to the bathroom.  He noted that he was not able to do any kind of work around the home or outside the home and was virtually homebound.  He indicated that he had been bedridden for 36 out of the last 52 weeks of the past year due to his low back problems.  On a good day, he would get up and walk a little because he needed the exercise to help his joints.  

In a July 2012 statement, the Veteran indicated that sitting down for long periods of time strained and collapsed his back, therefore resulting in excruciating pain.  He indicated that taking pain medications allowed him to walk on a day to day basis but made it difficult for him to answer questions effectively at his Board hearing.  He indicated that he could not get a decent night's sleep because of his low back pain.  He slept in a recliner rather than his bed because sleeping in a bed made his back stiffen and caused terrible pain in the shoulders, arms and neck.  Consequently, he took cat naps during the day and night in the recliner.  He also noted that his implanted back stimulator would be running out of power in the near future and was already to show signs of reduced power.  

Private physical therapy records from June and July 2012 show ongoing treatment for low back disability.  The records show severe limitation of flexion along with persistent pain and fatigability but do not show any ankylosis.  

2012 records from a private physician show some treatment and evaluation of low back pain.  In May 2012, the Veteran reported back pain radiating into the left lower extremities with spasms into the left leg.  He felt that the battery in his spinal stimulator needed to be replaced as it was no longer providing significant relief.  Lying in his recliner did reduce symptoms but he was having significant night pain.  Physical examination showed significant pain and limitation with attempted forward flexion and extension.  A May 2012 CT scan produced a diagnostic conclusion of status post placement of disc prosthesis with transpedicular fusion at L4-L5.  There was resection of the superior articulating facet on the left side and laminectomy at L4-L5.  The findings were worrisome for mild arachnoiditis.  There was no recurrent or residual herniation seen.  

The Veteran's service connected degenerative joint disease of the lumbar spine is evaluated under the general rating formula for diseases and injuries of the spine. 

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

Forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 

The General Rating Formula specifies that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  Note (2).  Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA.  Note (3).  The term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees.  Id., Notes (2) and (4). 

The Board notes that the Veteran has not been specifically found to be suffering from intervertebral disc syndrome (IVDS).  However, as he has been shown to have substantial lumbar spine degenerative disc disease, an alternative evaluation under the  formula for rating intervertebral disc syndrome based on incapacitating episodes under Code 5243 will also be considered.  Under this formula,  intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. 

Note 1 of this Diagnostic Code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 

From April 2004 to February 22, 2005 and from April 1, 2005 to October 4, 2005, the Veteran was not shown to have forward flexion of the lumbar spine to 30 degrees or less or to have ankylosis of the lumbar spine.  Instead, forward flexion was not shown to be limited to less than 40 degrees and there is no evidence of any ankylosis prior to October 4, 2005.  Accordingly, a rating in excess of 20 percent is not warranted.  

Regarding incapacitating episodes, although the Veteran has reported that his low back disability has required significant periods of bedrest, bedrest actually prescribed by a physician during the time frame in question is not shown.  Consequently, a rating in excess of 20 percent based on incapacitating episodes of four weeks or more within a year is not warranted.  

Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated.  38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995).  The Veteran was shown to have significant pain, requiring treatment with  both oral pain medications and injections.  However, the pain is not shown to result in significant additional functional loss.  In this regard, the June 2004 VA examiner did note additional limitation of motion due to pain but did not indicate that the limitation was compatible with forward flexion to 30 degrees or less or with favorable ankylosis.  To the contrary, the examiner found that the overall functional loss was best characterized as moderate, a finding compatible with assignment of the existing 20 percent rating.  Also, the subsequent June 2005 VA examiner specifically found that flexion was additionally limited to 55 degrees predominantly due to pain after repetitive use, a finding that is also compatible with the existing 20 percent rating.  There are not any other objective findings of record indicative of a higher level of functional loss from April 2004 to February 22, 2005 and from April 1, 2005 to October 4, 2005.

From March 1, 2006, there is no evidence that the Veteran's lumbar spine disability was manifested by unfavorable ankylosis.  Notably, the lumbar spine was found to be ankylosed during the December 2005 VA examination but the examiner did not find that it was ankylosed at an unfavorable angle (the examiner simply noted that it was ankylosed to 15 degrees forward flexion).  Also, there are no other findings of record showing ankylosis so it is not clear that the ankylosis found in December 2005, was more than a temporary phenomenon manifesting during a time when the Veteran was already receiving a 100 percent total temporary rating.  There is no evidence of record of ankylosis from March 1, 2006 forward.  Additionally, considering incapacitating episodes, although the Veteran has affirmatively reported low back pathology requiring frequent bedrest, there is no indication that such bedrest has been prescribed by a physician.  Accordingly, a rating in excess of 40 percent based on incapacitating episodes of 6 weeks or more within a year is not warranted.  

Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the veteran has functional loss beyond that currently compensated.  38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995).  In this regard, although flexion was shown to be limited to only 10 degrees after repetitive use during the April 2008 VA examination,  such a finding is still not compatible with the loss of function occurring with unfavorable ankylosis of the lumbar spine.  Additionally, there is no other evidence of record from March 1, 2006 showing functional loss compatible with unfavorable ankylosis.  Accordingly, assigning a higher rating on this basis is not warranted.  

The Board has also considered whether the Veteran's claim for increase for lumbar spine disability should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted for any of the time frames in question.  As explained above, the Veteran's symptomatology, including pain, stiffness, loss of motion and muscle spasm, is fully contemplated by the pertinent diagnostic criteria.  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.  See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). 




CONTINUED ON NEXT PAGE
ORDER

Service connection for arthralgia of the skeletal joints is granted.

Service connection for myalgia is granted.

Service connection for right ankle disability is denied.

Service connection for right foot disability is denied.

Service connection for functional gastrointestinal disorder, to include gastroparesis, is granted.    

Service connection for respiratory disability, to include as based on asbestos exposure, is denied.   

Service connection for psychiatric disability, to include depression and PTSD, is granted.   

From April 30, 2004 to February 22, 2005 and from April 1, 2005 to October 4, 2005, an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine is denied.

From March 1 2006, an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine is denied.


REMAND

Currently, the Veteran has been assigned a 40 percent rating for his service-connected low back disability and a 10 percent rating for his left lower extremity radiculopathy, leading to a combined 50 percent disability rating.  This rating does not meet the minimum schedular requirements for assignment of a TDIU.  38 C.F.R. § 4.16.  However, as the decision above has awarded service connection for psychiatric disability as secondary to the low back disability, digestive disability, arthralgia and myalgia, a remand is required so that the RO/AMC may consider whether the Veteran is unemployable due to this current combination of service-connected disabilities.  This consideration should include evaluation on a schedular basis, if after assignment of the ratings for the newly service-connected disabilities, the Veteran meets the pertinent schedular criteria.  It should also include evaluation of whether referral for extraschedular consideration is appropriate, if after assignment of the ratings for the newly service-connected disabilities, the Veteran does not meet the schedular criteria for assignment of a TDIU.  

On remand, prior to readjudicating the TDIU claim, the RO/AMC should afford the Veteran a VA medical examination and/or obtain a VA medical opinion concerning whether the Veteran is currently unemployable due to his service-connected disabilities.  If an examination is conducted, it should be conducted by a medical professional other that the nurse practitioner who performed the April 2008 VA examination.  Prior to arranging for the examination and/or opinion, the RO/AMC should update the record with any VA treatment records pertaining to the Veteran's service-connected disabilities from September 2008 to the present.  The RO/AMC should also ask the Veteran to identify all recent private sources of treatment or evaluation he has received for his low back disability, radiculopathy, psychiatric disability, digestive disability, arthralgia and myalgia and should secure copies of complete records of the treatment or evaluation (not already of record) from all sources appropriately identified.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should update the record with any VA treatment records pertaining to the Veteran's service-connected disabilities from September 2008 to the present.  

2.  The RO/AMC should also ask the Veteran to identify all recent private sources of treatment or evaluation he has received for his low back disability, radiculopathy, psychiatric disability, digestive disability, arthralgia and myalgia and should secure copies of complete records of the treatment or evaluation (not already of record) from all sources appropriately identified.

3.  After completing the above, schedule a VA examination by an appropriate medical professional, other than the nurse practitioner who conducted the April 2008 VA examination, to determine whether the Veteran is unemployable due to his service-connected disabilities (i.e. low back disability, radiculopathy, psychiatric disability, gastrointestinal disability, myalgia and arthralgia).  The following considerations will govern the examination:

a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims file. 

b.  After REVIEWING THE CLAIMS FILE and conducting an interview with, and an examination of, the Veteran, the examiner must  provide an opinion as to whether the Veteran is unable to secure or maintain substantially gainful employment by reason of the COMBINED EFFECTS of his service-connected disabilities (i.e. low back disability, radiculopathy, psychiatric disability, gastrointestinal disability, myalgia and arthralgia). ("Substantially gainful employment" means employment sufficient to obtain a living wage.) The examiner may take into account the Veteran's prior education and work experience but may not take into account the Veteran's advanced age or the effect of any non-service connected disabilities.

* If the examiner finds that consultation with another specialist is required to determine whether the Veteran is unemployable by reason of the COMBINED EFFECTS of his service-connected disabilities (if, for example, consultation with a mental health professional is required), such consultation must be achieved.

* If the examiner determines that an additional VA examination of the Veteran is required to answer the question posed by the Board, such an examination must be scheduled.

*If the Veteran does not report for the scheduled examination, the examiner should determine if the question whether the Veteran is unemployable due to his service-connected disabilities (posed in more detail above) may be answered without first examining the Veteran.  If so, the examiner should proceed and answer the question, according to the instructions provided herein.  

c. The examiner must identify and explain the medical basis or bases for all conclusions, with identification of the pertinent evidence of record.

4.  Readjudicate the issue of entitlement to a TDIU, including whether referral for extraschedular consideration is indicated.  If the benefit sought remains denied, provide the Veteran a SUPPLEMENTAL STATEMENT OF THE CASE and an appropriate period of time for response.  

Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

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

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



______________________________________________
KELLI KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs