Citation Nr: 1320006	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  08-23 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a rating higher than 20 percent for residuals of a lumbar spine (L1) fracture with osteoarthritis.

2.  Whether new and material evidence has been presented to reopen a claim for service connection for bilateral hearing loss.

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for a neck disability.

5.  Entitlement to service connection for a circulatory disorder of the lower extremities, to include deep vein thrombosis (DVT) and blood clots.


REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran had active duty from March 1969 to December 1972, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal and the Combat Infantryman Badge.  The Veteran had additional service in the National Guard. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO), which denied the benefits sought on appeal.

The claims of entitlement to service connection for a neck disability and a circulatory disorder of the lower extremities, to include DVT and blood clots, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Even considering pain and corresponding functional impairment, the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees; there is no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during any 12 month period nor ankylosis of the entire thoracolumbar spine.

2.  In an October 1973 rating decision, the RO denied the Veteran's claim of service connection for bilateral hearing loss, but he did not appeal the determination and the decision became final.

3.  The evidence received since the October 1973 rating decision that denied the Veteran's claim of service connection for bilateral hearing loss is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim.

4.  Bilateral hearing loss had its onset in service.


CONCLUSIONS OF LAW

1.  The criteria for a rating higher than 20 percent for lumbar spine (L1) fracture with osteoarthritis have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 

2.  The October 1973 rating decision that denied the Veteran's claim of service connection for bilateral hearing loss is final.  38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012).

3.  Evidence received since the October 1973 rating decision is new and material; the claim of entitlement to service connection for hearing loss is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

4.  Resolving all reasonable doubt in his favor, the Veteran's bilateral hearing loss is due to injury incurred in service.  38 U.S.C.A. §§ 1110, 1154(b), 7105(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(d), 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The notice requirements were accomplished in letters sent in April 2005 and September 2005.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).  Additionally, the claims were readjudicated in the November 2012 supplemental statement of the case.

The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained.  The Veteran's service treatment records, Virtual VA file, National Guard medical records, and private and VA treatment records have been obtained.  In addition, the Veteran has been provided with VA examinations in connection with his claims herein decided.  Finally, the Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.

Increased Rating Claim

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern 
is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04. 

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 

By a rating decision in April 1973, the RO granted service connection for residuals of a lumbar spine (L1) fracture with osteoarthritis and assigned a 10 percent disability rating, effective December 1972.  In April 2005, the Veteran submitted the current claim for a higher disability rating.  In a rating decision in March 2006, the RO increased the Veteran's disability rating for a lumbar spine disability to 20 percent.  The Veteran appealed for a higher rating.  

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243.  Intervertebral disc syndrome is rated pursuant to Diagnostic Code 5243, and may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The Veteran's service-connected lumbar strain is rated under the General Rating Formula (General Formula) for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5235 (2012). 

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  A 20 percent rating is warranted for 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.  A maximum rating in this case of 40 percent is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2012).  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an increased rating of 20 percent is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months.  Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). 

On VA examination in August 2005, the Veteran complained of low back pain.  The examiner noted a history of L1 fracture incurred when the Veteran was injured in Vietnam in combat.  The Veteran complained of stiffness, weakness and intermittent low back pain rated as 4 to 5 out of 10.  He related flare-ups in pain with additional limitation of motion occurring approximately twice a month and lasting 3 to 4 hours.  He denied any radicular symptoms.  The Veteran did not require use of assistive devices for ambulation.  He was able to walk approximately 3 miles.  He denied any bedbound episodes in the previous 12 months, although he had used 3 to 4 work sick days in the year preceding the examination.  The Veteran used medication to treat his low back symptoms.  On examination, there was tenderness over his left SI joint.  He had positive straight leg raise at 40 degrees.  Flexion was to 70 degrees, extension was to 20 degrees, lateral flexion was to 20 degrees, bilaterally, and bilateral rotation was to 20 degrees.  There was pain with all ranges of motion, as well as fatigue, weakness, and lack of endurance with repetitive testing.  X-rays of the lumbar spine revealed osteoarthritis.  

On VA spine examination in October 2010, the Veteran complained of constant aching back pain in the lower back with flare-ups once a month that last 1 to 2 weeks.  He denied treatment with medication or use of ambulatory assistive devices.  He was able to walk up to a mile and denied problems performing activities of daily living.  The Veteran denied any erectile, bladder or bowel dysfunction.  He was employed as an accountant.  Flexion of the lumbar spine was to 55 degrees, extension was to 30 degrees, right and left lateral bending was to 25 degrees, and right lateral rotation was to 50 degrees on the left lateral rotation was to 55 degrees.  There was an additional loss of motion of 10 to 15 percent with repetitive motion due to pain.  All major muscle groups in the lower extremities were 5/5 with no apparent dermatone sensory loss in either lower extremity.  Deep tendon reflexes were 4+ at the knees, and 2+ at the ankles.  There was minimal spasm and tenderness.  Straight leg raising was positive at 65 degrees.  X-rays revealed extensive and severe degenerative disc disease extending at all levels from L2-S1 with osteophytes and retrolisthesis at the L2-L3 level with anterior wedging at L2.  The examiner diagnosed severe spondylosis of the lumbar spine characterized as moderate to moderately severe in nature.  

The Veteran underwent a VA back examination in November 2012.  He reported treatment for the low back with NSAID medication as needed.  The Veteran required no assistive devices for ambulation.  The examiner noted diagnoses of low back pain due to aging, and an old healed mild L-1 compression fracture.  Forward flexion was to 90 degrees with onset of pain at 80 degrees, extension was to 15 degrees with onset of pain at 10 degrees, right lateral flexion was to 15 degrees with onset of pain at 5 degrees, left lateral flexion was to 20 degrees with onset of pain at 15 degrees, and lateral rotation was to 30 degrees, bilaterally, with onset of pain on the left at 20 degrees.  There was no additional limitation of motion following repetitive movement.  There was no evidence of localized tenderness or pain on palpation, guarding, or muscle spasms.  Muscle strength was 5/5 throughout the lower extremities and there was no muscle atrophy.  Deep tendon reflexes were 2+, and sensory examination was normal.  Straight leg raising was negative, bilaterally.  The Veteran denied radicular symptoms, and no signs or symptoms of radiculopathy were noted.  No neurological abnormalities were reported.  Intervertebral disc syndrome was not found on examination.  X-rays of the lumbar spine revealed arthritis with no vertebral fracture.  There was no residual from the old healed mild compression of L-1.  The examiner determined that the condition did not impact the Veteran's ability to work.  

Throughout appeal the evidence does not demonstrate, nor does the Veteran claim, that he was prescribed bed rest by a physician.  As such, the Veteran does not satisfy the criteria for an increased rating under Diagnostic Code 5243 for intervertebral disc syndrome because the record does not show documented periods of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician.  As such, the preponderance of the evidence is against a finding that the Veteran is not entitled to higher disability ratings based upon incapacitating episodes at any time throughout the period on appeal. 

As the Veteran is not entitled to an increased rating based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings based upon his combined orthopedic and neurological manifestations. 

Turning first to the orthopedic manifestations, the ranges of motion of the Veteran's lumbar spine, as shown on VA examination in August 2005, October 2010 and November 2012, fall at most within the requirements for a 20 percent rating: 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.  

In this regard, on VA examination in August 2005, while the Veteran complained of pain with all ranges of motion, flexion was to 70 degrees, extension was to 20 degrees, lateral flexion was to 20 degrees, bilaterally, and bilateral rotation was to 20 degrees.  Thereafter on VA spine examination in October 2010, the Veteran complained of constant aching back pain in the lower back with flare-ups once a month that last 1 to 2 weeks.  Flexion of the lumbar spine was to 55 degrees, extension was to 30 degrees, right and left lateral bending was to 25 degrees, and right lateral rotation was to 50 degrees on the left lateral rotation was to 55 degrees.  There was an additional loss of motion of 10 to 15 percent with repetitive motion due to pain.  In November 2012 forward flexion was to 80 degrees, extension was to 10 degrees, right lateral flexion was to 5 degrees, left lateral flexion was to 15 degrees, and lateral rotation was to 30 degrees on the right and 20 degrees on the left.  There was no additional limitation of motion following repetitive movement.  Limitation of flexion of the lumbar spine to 30 degrees or less is not shown.  38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012).  Thus, the General Rating Formula for Diseases and Injuries of the Spine cannot serve as a basis for an increased rating. 

As for neurological manifestations, x-rays of the lumbar spine revealed osteoarthritis and an old healed mild L-1 compression fracture with no residuals.  Additionally, disc disease was noted in October 2010.  While on VA examination in August 2005 and October 2010 the VA examiners noted positive straight leg raise, it was negative on examination in November 2012.  The Veteran has consistently denied radicular symptoms and no signs or symptoms of radiculopathy have been found.  He has also denied any erectile, bladder or bowel dysfunction.  The Veteran did not require use of assistive devices for ambulation.  While the examiner in October 2010 noted spasm and tenderness it was described as minimal and on subsequent examination in 2012 the examiner found no evidence of localized tenderness or pain on palpation, guarding, or muscle spasms.  Moreover, throughout the period on appeal, muscle strength was 5/5 throughout the lower extremities and there was no muscle atrophy.  Deep tendon reflexes were 2+, and sensory examination was normal.  In sum, no neurological abnormalities were reported.  

The Board finds that the findings in the medical records accordingly do not support a conclusion that the Veteran had radiculopathy, or that he had any other objective neurological symptoms related to his low back disability.  The Veteran is thus not entitled to an increased rating for his low back disability based upon consideration of any neurologic residuals because there are no independently ratable neurologic residuals shown or diagnosed by the treating and examining physicians. 

The Board has determined that the Veteran is entitled to no more than a 20 percent disability rating under any of the spinal rating criteria applicable.  Consideration has been given to the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45.  Although the Veteran has complained of flare-ups, they are not shown to result in limitation of function of a severity to warrant any higher rating.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Additionally, there are no objective neurological manifestations demonstrated or diagnosed by any physician.  Accordingly, the Board finds that the Veteran is not entitled to a separate rating for neurological manifestations. 

The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion.  38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board has considered the Veteran's complaints of pain, as well as all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to a rating greater than 20 percent.  However, the weight of the credible evidence demonstrates that the Veteran's low back disability does not warrant a rating higher than 20 percent. 

In conclusion, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 20 percent for the lumbar spine (L1) fracture with osteoarthritis.  The preponderance of the evidence is also against the assignment of any separate neurologic rating.  Therefore, the claim for higher ratings is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has considered the statements of the Veteran regarding the severity of the service-connected lumbar spine (L1) fracture with osteoarthritis.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). 

In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. 

Such competent evidence concerning the nature and extent of the Veteran's lumbar spine (L1) fracture with osteoarthritis has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the examinations.  The medical findings as provided in the examination reports directly address the criteria under which the service-connected disability is rated.  However, even considering the Veteran's credible reports regarding the impact of service-connected lumbar spine (L1) fracture with osteoarthritis on his ability to function and symptomatology, the findings of the examinations do not support the assignment of higher ratings or additional separate ratings.  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. 
§ 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

Here, the rating criteria for the Veteran's service-connected lumbar spine (L1) fracture with osteoarthritis reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, which have not been shown.  The medical evidence does not show that the Veteran's service connected disability causes unusual factors such as frequent hospitalizations or marked interference with employment beyond that contemplated by the rating schedule.  The rating criteria are therefore adequate to evaluate the Veteran's lumbar spine (L1) fracture with osteoarthritis and referral for consideration of extraschedular ratings is not warranted.

New and Material Evidence Claim

In a rating decision in an October 1973, the RO denied the Veteran's claim of service connection for defective hearing.  The RO determined that although defective hearing was noted in May 1972, subsequent competent medical evidence did not support a finding that hearing loss was present and examination findings in August 1973 were consistent with normal hearing.  After appropriate notice of this decision, the Veteran did not appeal, and no evidence pertaining to the issue was physically received by VA within one year of the October 1973 rating decision.  The October 1973 decision is therefore final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). 

In April 2005 the Veteran filed a claim to reopen, which was denied by the RO in a March 2006 rating decision.  The Veteran has appealed.

The October 1973 rating decision is the last final decision on the merits.  The claim decided therein is not subject to revision on the same factual basis.  38 U.S.C.A. 
§ 7104.  In order to reopen the claim, new and material evidence is needed.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 

As the application to reopen the claim was received in April 2005, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies.

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.   

At the time of the October 1973 rating decision the evidence consisted of service treatment records that noted normal hearing March 1969, with puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 15, 15, 15, and 15, bilaterally.  The Veteran's service treatment records show multiple injuries incurred when his armored personnel carrier (APC) hit a land mine in February 1970 while he was stationed in Vietnam.  A May 1972 Medical Board report documents bilateral sensorineural deafness following the explosion, along with a notation of H-3 permanent profile.  On separation examination the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 20, 5, 10, and 20, in the right ear, and 15, 10, 10, and 35 in the left ear.  The claims file also contained an August 1973 VA audiological examination that noted the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 0, 5, 0, and 20, in the right ear, and 5, 0, 5, and 15 in the left ear, with speech recognition was 96 percent in right ear and 100 percent in the left ear.

Evidence added to the record since the time of the last final decision includes National Guard treatment records, a VA hearing loss examination report in October 2011 and VA medical records that show treatment for and a diagnosis of bilateral hearing loss pursuant to the criteria for hearing loss under 38 C.F.R. § 3.385, as well as statements from the Veteran relating onset of hearing loss in service.  This evidence is new since it was not of record in October 1973 and material as it relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral hearing loss disability; namely, evidence of a currently diagnosed hearing loss disability under 38 C.F.R. § 3.385, along with statements from the Veteran relating onset of the condition in service.  As such, the evidence directly addresses the reason for the prior denial and must be presumed credible for the purpose of reopening the claim.  Justus, 3 Vet. App. at 512-13.  New and material evidence having been presented, the claim is reopened.  38 C.F.R. § 3.156(a); see also Shade. 




Service Connection for Bilateral Hearing Loss

The Veteran seeks service connection for a bilateral hearing loss due to injuries sustained as a result of a mine explosion while stationed in Vietnam.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz ).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).

The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz  is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz  are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385 (2012). 

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In this case, the medical evidence shows that the Veteran has bilateral hearing impairment as defined by VA regulation.  38 C.F.R. § 3.385.  Having determined that the Veteran currently has a diagnosis of bilateral hearing loss for VA disability purposes, the remaining question before the Board is whether there is nexus between the currently diagnosed hearing loss and his service.  

There was evidence of bilateral hearing loss during service.  The service treatment record contain a March 1969 audiological examination that recorded puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz  were 15, 15, 15, and 15, bilaterally.  The service treatment records document multiple injuries incurred when his APC hit a land mine in February 1970 while he was stationed in Vietnam.  He received combat awards and as such, exposure to loud noise is certainly consistent with the circumstances and conditions of the Veteran's service.  Thus, the Board finds that the Veteran was likely exposed to loud noise during military service as he has stated.  Moreover, a May 1972 Medical Board report noted bilateral sensorineural deafness following the explosion, along with a notation of H-3 permanent profile.  On separation examination the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 20, 5, 10, and 20, in the right ear, and 15, 10, 10, and 35 in the left ear.  There was a decrease in his hearing acuity when comparing the results of his exit and entrance examinations at 4000 Hertz in the right and left ears.

After service, an August 1973 VA audiological examination report reflects puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 0, 5, 0, and 20, in the right ear, and 5, 0, 5, and 15 in the left ear.  The Veteran's speech recognition was 96 percent in right ear and 100 percent in the left ear.  A December 1984 Army National Guard examination noted that the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, 5, 5, 5, and 45, in the right ear, and 5, 5, 5, 0, and 35 in the left ear.  A March 1991 examination report recorded audiometric findings consistent with hearing loss, as the puretone thresholds in decibels at the tested frequency of 4000 Hertz were 55 in the right ear and 60 in the left ear.  While subsequent audiometric testing produced varying results, the Veteran was diagnosed with high frequency hearing loss in April 1997, at which time the puretone thresholds in decibels at the tested frequency of 4000 Hertz were 60 in the right ear and 65 in the left ear.  

On VA audiological examination in October 2011 the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 20, 20, 25, 55, and 80, in the right ear, and 25, 25, 25, 50, and 80, in the left ear.  The Veteran's speech recognition was 92 percent in right ear and 96 percent in the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss tinnitus.  The examiner opined that while tinnitus was related to the in-service mine explosion, it was less likely as not that the Veteran's hearing loss was caused by or the result of an event in service because on VA examination in 1973 the Veteran's hearing was within normal limits.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 

In this case, the VA examination opinion is lacking with regard to the second and third inquiries.  The examiner made note of the Veteran's in-service acoustic trauma, but then provided a negative opinion that failed to consider findings of hearing loss by Medical Board reports in service, as well as the fact that the Veteran's hearing ability had progressed (i.e. worsened) during service, following the land mine explosion.  

There is no question the Veteran had service-related noise exposure when the mine exploded in such close range to him.  According to the Reeves case, the Board is required to apply the section 1154(b) presumption to whether the claimed injury occurred as well as the separate issue of whether the Veteran suffered the claimed ensuing disability while on active duty.  For example, once establishing that the claimed injury (acoustic trauma in this case) occurred, a Veteran would then only have had to show that the disability he incurred in service was a chronic condition that persisted in the years following active duty.  This basically establishes that the injury in service resulted in permanent disability.  See generally Reeves.

As already explained, competent lay evidence may establish the presence of observable symptomatology.  See Layno.  Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations.  Jandreau; see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Rucker and Layno.  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Buchanan at 1337. 

Bilateral hearing loss is the type of medical problem that is within the Veteran's ability to observe on his own.  Thus, his statements of the loss of hearing following in-service noise exposure, which then returned, but again subsequently progressively worsened over the years, are within his ability to state.  Further, he is also credible in his report of suffering not only acoustic trauma in service, but also the disability of bilateral hearing loss during service.  He has competently stated that he experienced hearing loss following loud explosion noise in service.  The Board has no reason to doubt the credibility of his statements.  Thus, there is competent and credible evidence that bilateral hearing loss occurred after in-service acoustic trauma.  As to continued hearing loss after service, the Veteran essentially indicates that the hearing loss condition continued and even worsened.

With regards to hearing loss, the record establishes the presence of hearing loss, post-service, according to the VA examination.  The VA examiner provided a negative opinion, but it was not supported by adequate rationale.  Conversely, the Veteran has provided specific information regarding when the hearing loss began during service, as well as the post-service progression.  As the Board finds that his statements are credible, they are ultimately probative and add favorable weight to the claim.  See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996).

The Board thus finds that the acoustic trauma in service, as conceded by VA in light of the Veteran's combat service, resulted in bilateral hearing loss, which, as a "disability" began during service.  See Reeves.  Since the Board also accepts that this disability continued thereafter, per the probative lay evidence, the Board finds that the acoustic trauma to the ears in service resulted in permanent disability by way of bilateral hearing loss.  Although there is a contradictory medical opinion as to the hearing loss, the Board concludes this opinion provide insufficient rationale.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Due to the incomplete nature of this examination report, the Board affords it less probative value than the lay evidence which has been found to be persuasive.  Therefore, while there is both evidence weighing for and against the Veteran's claim, the Board finds that the favorable evidence, at the very least, is just as probative as the evidence against the claim, if not more so.  Accordingly, service connection for bilateral hearing loss is warranted, especially with resolution of all reasonable doubt in the Veteran's favor.  38 C.F.R. § 3.102;see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). 


ORDER

A disability rating higher than 20 percent for lumbar spine (L1) fracture with osteoarthritis is denied.

New and material evidence to reopen claim of service connection for bilateral hearing loss has been presented, and the appeal is granted.

Service connection for bilateral hearing loss is granted.



REMAND

The Veteran contends that his cervical spine disability had onset in service when he was injured in February 1970 during combat in a land mine explosion in Vietnam.  He also reports that he developed a circulatory disorder of the lower extremities, to include recurrent DVT and blood clots, due to injuries incurred in combat. 

As noted above, the Veteran served in combat in Vietnam.  In cases where, as here, a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The Federal Circuit has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

As previously noted, the service treatment records show that the Veteran incurred multiple injuries when his APC hit a land mine in February 1970 while he was stationed in Vietnam.  However, the service treatment records from March 1969 to December 1972 do not show any complaints, findings or diagnoses pertaining to the neck.  An April 1999 x-ray of the cervical spine revealed degenerative joint disease.  A February 2004 National Guard retirement medical examination report in February 2004 recorded complaints of neck pain and degenerative joint disease of the cervical spine.  A September 2007 VA treatment note recorded a history of neck pain for 20 years that had worsened in recent months.  The Veteran denied injuring his neck in Vietnam.

The Veteran underwent a VA general examination in August 2005.  The Veteran reported onset of neck pain in February 1970, with progressive pain.  X-rays revealed spondylosis of the cervical spine manifested by decreased intervertebral distance.  The examiner diagnosed cervical spine spondylosis with mild impairment.  However, the examiner failed to opine as to the etiology of any cervical spine disorder found on examination.  The August 2005 opinion is further rendered inadequate as the examiner did not comment upon the Veteran's competent and credible reports of a continuity of symptoms during service and/or symptomatology of neck symptoms after separation.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion).  Once VA undertakes an examination, even if not required to do so, an adequate one must be produced.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Accordingly, in the absence of an opinion addressing the etiology of the Veteran's cervical spine condition, the Board finds that an additional VA examination is warranted.  38 C.F.R. §3.159(c)(4) (2012).

Next, the with regards to the claimed circulatory disorder affecting the lower extremities, the service treatment records from March 1969 to December 1972 do not show any complaints, findings or diagnoses pertaining to a circulatory disorder  of the lower extremities.  Private treatment records documented that the Veteran was hospitalized for DVT and blood clot of the right lower extremity in November 2000.  Venous Doppler of the right leg in August 2001 showed resolved DVT.  The Veteran's February 2004 National Guard retirement medical examination report noted a history of blood clots in the right leg.  An April 2005 clinical treatment note recorded an impression of varicose veins and stasis treated with support hose, along with a history of DVT.

On VA examination in August 2005, the examiner found no evidence of DVT and diagnosed right lower extremity DVT, resolved, with nil to mild impairment.  However, subsequent VA treatment records in February 2007 noted the Veteran's report of private treatment for blood clots the previous month, and a September 2007 clinical record noted continued treatment for DVT in the left leg.  As the Veteran's DVT/blood clots have apparently become manifest during the period on appeal, an opinion as to whether there is a nexus between claimed disability and service, to include any injuries therein, should be obtained.  See 38 U.S.C.A. 
§ 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Additionally, the Board notes that the Veteran has additional periods of service with the Alabama Army National Guard which have not been verified.  Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d).  Active duty training includes full-time duty in the Armed Forces performed by Reserves for training purposes.  38 C.F.R. § 3.6(c)(1).  Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active duty training, or from injury incurred or aggravated during inactive duty training.  38 U.S.C.A. §§ 101(24), 106, 1131.  However, the presumptions do not apply to active duty training or inactive duty training.  Biggins v. Derwinski, 1 Vet. App. 474 (1991).  On remand, the VA should make efforts to obtain all relevant military personnel records and other documentation that could potentially be helpful in resolving the Veteran's claims for service connection.  

Finally, relevant ongoing medical records should also be obtained, to include any VA treatment records.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  Also, the Veteran should be requested to provide any outstanding private medical records or authorize VA to obtain the records.

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of his claimed disabilities and the onset, chronicity and/or relationship between his cervical spine disability and circulatory disorder of the lower extremities and service.  The Veteran should be provided a reasonable amount of time to submit this lay evidence. 

2.  Contact the National Personnel Records Center and any other indicated agency or records repository, and: 

a) Request verification of the complete dates and types of the Veteran's service, whether it was active duty, active duty for training, inactive duty training, or active duty for special work. 

b) Request complete copies of the Veteran's service personnel records. 

If no service personnel records can be found, or if they have been destroyed or are otherwise unavailable, ask for specific confirmation of that.  Notify the Veteran as required.  Associate all documents obtained with the claims file.

3.  Obtain, either electronically or physically, all treatment records for treatment received at the VAMC, not already in the claims file.  All attempts to obtain these records must be documented in the claims file. 

4.  Request the Veteran to identify any sources of private treatment or evaluation relevant to the claims on appeal. Then, undertake appropriate efforts to attempt to obtain any indicated records.  The RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile.  All development efforts should be associated with the claims file.

5.  After the above development is completed, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology any cervical spine disorder and circulatory disorder of the lower extremities, to include recurrent DVT and blood clots, that may be present.  All necessary tests should be conducted.  
The claims folder should be reviewed and that review should be indicated in the examination report.  The rationale for all opinions should be provided.  Specifically, the examiner should provide the following information:

a) Diagnose any current cervical spine disorder and circulatory disorder of the lower extremities, to include recurrent DVT and blood clots.

b) State whether it is as likely as not that any cervical spine disorder found to be present began in or is otherwise related to the Veteran's period of active service, to include the documented February 1970 combat injury, or became manifest within one year of service discharge in December 1972.  

c) State whether it is as likely as not that any circulatory disorder of the lower extremities, to include recurrent DVT and blood clots, began in or is otherwise related to the Veteran's period of active service, to include the documented February 1970 combat injury.  The Board is cognizant that it is requesting that an examiner, who may find no current clinical evidence of circulatory disorder affecting either lower extremity, must still render a nexus opinion as to a prior diagnosis.  See McClain, supra.

The examiner should elicit from the Veteran a history of symptoms since service.  For purposes of the examination, the examiner should consider the Veteran's lay statements regarding the onset and continuity of symptomatology since discharge from service to be competent and credible.

4.  Then, readjudicate the claims.  If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond.  Then, return the case to the Board.

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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs