Citation Nr: 1323823	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  09-06 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for sinusitis.

2. Entitlement to service connection for a left forearm disorder.

3. Entitlement to service connection for a cervical spine disorder.

4. Entitlement to service connection for residuals of a right heel injury.

5. Entitlement to service connection for right hand neuropathy.

6. Entitlement to service connection for left hand neuropathy.

7. Entitlement to service connection for right ankle neuropathy.

8. Entitlement to service connection for left ankle neuropathy.

9. Entitlement to service connection for Raynaud's disease.

10. Entitlement to an initial rating in excess of 10 percent for degeneration of the posterior horn medial meniscus of the right knee.

11. Entitlement to an initial rating in excess of 10 for chondromalacia of the left knee.

12. Entitlement to an initial compensable rating for hemorrhoids.

13. Entitlement to an initial compensable rating for uterine fibroids.

14. Entitlement to an initial compensable rating for a headache disorder.

15. Entitlement to an initial compensable rating for a neck lipoma.

16. Entitlement to initial compensable ratings for three neck scars.

17. Entitlement to initial compensable ratings for C-section scars.

18. Entitlement to an initial compensable rating for metromenorrhagia.

19. Entitlement to an initial compensable rating for atopic dermatitis/eczema.

20. Entitlement to a compensable rating for anemia.

21. Entitlement to a compensable rating for a liver cyst.

22. Entitlement to an initial rating in excess of 20 percent for bladder instability for the period from April 1, 2008 to June 12, 2008.

23. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from August 1985 to March 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2008 and February 2009 rating decisions of the Roanoke RO.

In January 2013, the Veteran testified before the undersigned at a Central Office hearing. A transcript of this hearing is in the claims file.

An April 2013 statement from the Veteran's representative waived initial consideration by the Agency of Original Jurisdiction (AOJ) of additional evidence submitted.

The  issues of service connection for a stomach disorder, asbestos related lung problems, and a right shoulder disorder and increased ratings for tinnitus and the thoracolumbar disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issues of service connection for Raynaud's disease, sinusitis, and bilateral hand and ankle neuropathy and higher ratings for bilateral knee disorders, hemorrhoids, a cervical spine disorder, lipoma, skin disorder, bladder disorder, and PTSD with depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The Veteran is shown to have had a muscle strain in the left forearm during service, but she is not shown to have a current left forearm disorder that is causally or etiologically related to her military service.

2. The Veteran is shown to have had a foreign body removed from the heel of her right foot and a plantar fasciitis/heel spur during service, but she is not shown to have a current right heel disorder that is causally or etiologically related to her military service.

3. Throughout the appeal the Veteran's headaches were frequent, but they improved with treatment; at no time was she shown to have characteristic prostrating attacks that averaged one in 2 months over the past several months.

4. Throughout the appeal, each of the Veteran's 3 neck scars did not have one or more characteristic of disfigurement; was not painful on examination; unstable; or cause limitation of function of the neck.

5. Throughout the appeal, each of the Veteran's 2 C-section scars was not unstable, painful on examination, deep, cause limitation of motion, or cover an area of 929 sq. cm. or greater.

6. Throughout the appeal, the Veteran's anemia was asymptomatic and her hemoglobin was not 10 gm or less.

7. Throughout the appeal the Veteran's liver cyst was asymptomatic and did not cause any liver dysfunction or impairment.

8. From April 1, 2008 to September 2, 2010, the Veteran's metromenorrhagia was manifested by pain and irregular or heavy bleeding that was not controlled by treatment.

9. The Veteran's last menstrual cycle was on September 1, 2010.

10. Beginning September 2, 2010, the Veteran's metromenorrhagia was not manifested by pain or irregular or heavy bleeding and did not require treatment.

11. Throughout the appeal, the Veteran's uterine fibroids did not involve symptoms that required continuous treatment.


CONCLUSIONS OF LAW

1. The criteria to establish service connection for a left forearm disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012).

2. The criteria to establish service connection for residuals of a right heel injury are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012).

3. The criteria for an initial compensable rating for headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.124a, Diagnostic Code (Code) 8100 (2012).

4. The criteria for initial compensable ratings for 3 neck scars are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.118, Codes7800, 7803, 7804, 7805 (2012).

5. The criteria for initial compensable ratings for 2 C-section scars are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.118, Codes 7801, 7802, 7803, 7804, 7805 (2012).

6. The criteria for an initial compensable rating for anemia are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.117, Code 7700 (2012).

7. The criteria for an initial compensable rating for a liver cyst are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.114, Codes 7311, 7312, 7343, 7344 (2012).

8. From April 1, 2008 to September 2, 2010, the criteria for an initial 30 percent rating for metromenorrhagia are met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.116, Code 7699-7629 (2012).

9. The criteria for an initial compensable rating beginning September 2, 2010 for metromenorrhagia are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.116, Codes 7699-7629 (2012).

10. The criteria for an initial compensable rating for uterine fibroids are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.116, Code 7613 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

As the May 2008 and February 2009 rating decisions on appeal granted service connection for headaches, uterine fibroids, metromenorrhagia, neck scars, C-section scars, anemia, and a liver cyst, and assigned disability ratings and effective dates for the awards, statutory notice served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The question of whether a further VCAA letter for such "downstream" issues is required was also addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this opinion, the General Counsel held that, in such circumstances, a Statement of the Case (SOC) was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the necessary SOCs were issued in January 2009 and December 2010. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).

Regarding the service connection claims, a January 2008 pre-decisional letter provided the Veteran with notice in accordance with the law. This letter informed her of the evidence and information necessary to substantiate her claims, the information required of her to enable VA to obtain evidence, and the assistance that VA would provide. She was given notice regarding disability ratings and effective dates of awards consistent with the holding in Dingess. 

VA made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are associated with her claims file, and VA has obtained all pertinent/identified records that could be obtained. She was afforded VA examinations and while the Veteran through her representative asserted during the hearing that the examinations were inadequate the Board finds that they were adequate for rating the disabilities. See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

Regarding the increased rating claims, the representative's concerns were that the April 2012 VA examination did not address flare-ups. In general, VA may consider several factors, to include flare-ups, in conjunction with the rating criteria for musculoskeletal disabilities that are at least partly rated on the extent there is limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The April 2012 VA examination addressed the Veteran's scars, liver cyst, skin disability, and gynecological disability, none of which are musculoskeletal disabilities. Apart from this factor, the record indicates that the claimed flare-ups do not warrant increased ratings. The mere periodic manifestation of a disorder during a "flare-up" is not dispositive as to the question of whether a new examination is warranted. Voerth v. West, 13 Vet.App. 117   (1999). 
 
 For reasons discussed in the remand below, the Veteran is entitled to additional examinations to ascertain the current severity of her skin disorder and lipoma as well as service-connected disabilities on appeal.

The representative also stated that no narratives were provided. However, the  examination questionnaires completed by the examiner for each disability adequately covered the history of the disabilities, to include current symptoms. In addition, a section was provided to note any findings not already included in the form and included a remarks section for any additional comments. The examiner noted no additional findings and determined that no additional comments were needed. Given the thoroughness of the questionnaires, it is unclear what additional information was needed. Since the representative failed to state what specific information was missing in the examination report that required a narrative there is no basis for finding that a narrative was necessary or that the absence of one was either prejudicial to the Veteran or rendered the examination inadequate.

The representative objected to the fact that one examiner addressed multiple disabilities and that he was not a specialist or Board certified. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions and able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Thus, there is no requirement that a specialist is needed in each and every situation. In this case, the examiner was a licensed physician; therefore, he was qualified to conduct a VA examination. Furthermore, none of the disabilities addressed in the examination were so complex as to require a specialist. Therefore, the examiner was competent to conduct the examinations.

Regarding the service connection issues, the representative found error in that no opinions were offered. The April 2012 VA examination did not address the issues involving service connection claims. However, as to the claimed left forearm and right heel disorders, they were previously the subject of a VA examination and no pathology or disability was found. However, the Board finds that remaining service connection issues require additional examinations because the prior examinations are inadequate to decide the claims. Therefore, those issues are addressed in the remand below.

The Veteran was also provided with a Central Office Board hearing in January 2013. Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97.

Importantly, the Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability with regard to several claims on appeal in that case, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA medical examination report, and there was no indication that the appellant had any additional information to submit. Therefore, the Court concluded that any deficiencies in the hearing under section 3.103(c)(2) did not prejudice those claims. Id.  

Here, the undersigned Veterans Law Judge (VLJ) noted the issues on appeal at the beginning of the hearing. During the hearing, all of the issues decided below were sufficiently addressed. Any areas not discussed by the VLJ were addressed by the Veteran's representative, therefore, there was no need to elicit any additional testimony. The VLJ also advised the Veteran to obtain statements from her physicians that addressed the 3-prongs of service connection in order to help substantiate her claims. Regarding the increased rating claims, the VLJ engaged the Veteran in discussions regarding the symptoms associated with the disabilities and criteria in rating disabilities. Based on testimony elicited by the Veteran's representative, it appears there was actual knowledge of the type of evidence and information that potentially could be advantageous to her claims.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). 

The Board finds that the hearing officer's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the hearing that was provided. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The Veteran has not alleged that there were any deficiencies in the Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. There is no indication that the appellant had any additional information to submit. Therefore, the Board finds that any deficiency in the hearing was non-prejudicial. See id. 

VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. 

II. Service Connection Claims

Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

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, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

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

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 three-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, 21 Vet. App. at 308 (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. 38 C.F.R. § 3.159(a). 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. 

See 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, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Specifically, 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, supra (concerning varicose veins); Jandreau, supra (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, laypersons have also 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). 

The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b) ) (internal quotation marks omitted). 

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) (2012).

After determining the competency and credibility of evidence, the Board must 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. 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"); Caluza, 7 Vet. App. at 511-512. 

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. Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). 

A. Left Forearm Disorder 

The Veteran asserts she has chronic pain in the forearm and fingers, which she believes is associated with tendonitis, arthritis, contractures, carpal tunnel syndrome, or a nerve disorder. See the July 2008 notice of disagreement (NOD). Because the Veteran is not shown to have a current left forearm disorder, her claim for service connection will be denied.

The threshold criterion for service connection is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

The Veteran's service treatment records reflect left forearm complaints, but there is no post-service evidence of a disorder upon which to base a claim of service connection. A September 2003 service treatment record notes her complaints of arm pain, itching, and constant throbbing of the left forearm. There was no tingling or edema, but there was slight tenderness of the forearm. The assessment was muscle strain. On October service 2007 examination and November 2007 retirement medical assessment there were no complaints or findings of a left forearm disorder. On February 2008 pre-discharge VA examination, the Veteran had no left forearm complaints and on examination there was no tenderness to palpation. No evidence of pathology was found. There are also no post-service treatment records that relate to the claimed disability.

Although she reported left forearm pain during the course of the appeal there was no evidence of a disorder and pain alone without a diagnosed or identifiable underlying malady or condition is not a disability for VA purposes. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). She also does not have a diagnosis of any of the disorders she attributed to her pain. In the absence of evidence of pathology, there is no competent evidence of a current left forearm disability.

Based on this record, the Veteran is not shown to have a current disability of the left forearm at any time during the appeal. 

The Veteran is competent to report her symptoms, which in this case is left forearm pain. However, complaints of pain are not evidence of a disability; therefore, they are insufficient to establish a diagnosis. The medical records do not contain any clinical evidence of a current disability of the left forearm. The Veteran was advised of the type of evidence needed to substantiate her claim, but the most fundamental requirement, which is evidence of a current disability, is absent from the record. She has provided no evidence of a current disorder involving the left forearm. Without proof a current disability there can be no valid claim of service connection. Boyer, supra; Brammer, supra.

Under the circumstances, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The claim for service connection is denied.


B. Residuals of a Right Heel Injury 

The Veteran contends she has a current right heel disorder as a result of having a foreign body removed from her foot in service. In January 2013, she testified that an object became stuck in her foot while serving in Korea in 1989. Surgery was performed in Seoul to remove the object, which she believed was a piece of glass or some other type of foreign object. Her current right heel complaint was having an unusual sensation, described as a shock, tingling, or discomfort. See pages 35 and 36 of the hearing transcript.

The Veteran's service treatment records include a December 1989 request for consultation and shows the Veteran complained of right plantar foot pain. She reported having pain for 2 months. There was a small callused area on the heel of the right foot. X-rays revealed the presence of a foreign body. In January 1990, a consult report noted she had pain for 3 months and that the foreign body was removed. On January 1990 service examination, the foot was noted as abnormal since the Veteran had a heeling surgical scar on the right medial heel. A July 1998 service record notes her complaints of right foot heel/ball pain and decreased range of motion. There was objective evidence of tenderness and the assessment was plantar fasciitis/heel spur. 

The October 2007 service examination contained no complaints or findings of a right heel problem.  However, the November 2007 retirement medical assessment shows the Veteran reported having foot pain, but no further information was provided.

On February 2008 pre-discharge VA examination, the Veteran did not have any right heel complaints and there was no objective evidence of pain to palpation. No abnormality was found to offer a diagnosis.

Although the Veteran testified to having an odd sensation in her foot, the October 2007 service and February 2008 pre-discharge VA examinations found no objective evidence of pathology to provide a right heel diagnosis. Post-service treatment records from August 2008 to June 2012 are silent for any complaints, findings, or diagnosis of a right heel disorder.

Although the Veteran is competent to report the symptoms she experiences, there is simply no object evidence of right heel findings or pathology. As noted previously, pain alone without a diagnosed or identifiable underlying malady or condition is not a disability for VA purposes. Sanchez, supra. The Veteran was advised of the type of evidence needed to substantiate her claim, but the most fundamental requirement, which is evidence of a current disability, is absent from the record. She has provided no evidence of a current disorder involving the right heel. Without proof a current disability there can be no valid claim of service connection. Boyer, supra; Brammer, supra.

Under the circumstances, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Service connection is denied.


III. Increased Rating Claims

Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 

When rating a service-connected disability, the entire history of the disorder must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Regulations require that, where there is a question as to which of two evaluations is to 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3.

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, supra. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany, supra. 

Merits of the Claims

A. Chronic Headache Disability

The Veteran contends her service-connected headaches should be assigned a 10 or 20 percent rating because they were severe and interfered with her concentration at work. See the June 2008 NOD and February 2009 substantive appeal. 

On February 2008 pre-discharge VA examination, the Veteran reported having long standing headaches since 1998. The pain was more constant, not sharp, and in the top of her head and forehead, which she treated with Motrin. Since 2003, the headaches were more frequent and they were currently almost daily. She also had them when she awoke in the morning, but they improved with medication or with tea with sugar. She denied nausea, visual complaints, focal weakness, or numbness during headaches, but her balance felt off at times during episodes. When she went to a clinic at the Pentagon, she was given flonase for sinus disease, which cleared up the headache at that time. She did not seem to miss work due to headaches.  

On September 2008 QTC VA examination, the Veteran complained of daily headaches that she associated with her anemia.

A July 2012 treatment record indicates the Veteran has had temple aches since she had a fall earlier that month, but this was related to TMJ.

In January 2013, the Veteran testified that her headaches were often and that they also occurred with excessive bleeding and anemia. See hearing transcript pages 15 and 17. She also had pain in her jaw and the side of her face associated with her headaches.

The Veteran's headache disorder is rated by analogy under Code 8199-8100. 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). When an unlisted disease is encountered, rating by analogy is permitted pursuant to 38 C.F.R. § 4.20 (2012). The Veteran's disorder is rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Id. 

Under Diagnostic Code 8100, a noncompensable (0 percent) rating for migraine headaches is warranted with less frequent attacks. A 10 percent rating is in order for migraine with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum evaluation of 50 percent is awarded when migraine is characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. 

The regulations do not define the term "prostrating," but "prostration" is defined as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1554 (31st ed.2007).

Throughout the appeal, the Veteran has not described her headaches in a manner that indicated they were ever prostrating. In her June 2008 NOD, September 2008 statement, and February 2009 substantive appeal, she stated her headaches were severe, but did not indicate they were prostrating. She also stated she sometimes missed work due to her headaches. During her January 2013 hearing, she stated that when she had headaches at work she placed a "warmie" on her head to ease the pain. See page 18 of the hearing transcript. Her headaches while frequent and significant at times appeared to respond well to treatment and were not shown to be prostrating.

Although the Veteran has not been afforded a recent VA examination, the length of time since the last examination is not the determinative factor in deciding whether re-examination is needed. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83; VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). 

The description of her headaches since the February 2008 examination does not suggest her headaches have materially worsened, especially to the point where they were productive of prostrating attacks. In the absence of evidence suggesting an average of one prostrating attacks in 2 months, a preponderance of the evidence is against the claim for an initial compensable rating. The benefit-of-the-doubt doctrine does not apply and the claim is denied.

B. Three Neck Scars

The Veteran contends the 3 service-connected neck scars, residuals of excised lipomas, should be assigned a 30 percent rating (10 percent for each scar). She asserted that the scars were productive of disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, abnormal texture, and limitation of neck motion. See the June 2008 NOD and February 2009 substantive appeal. 

The criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4). As to the post-October 2008 criteria, these amendments only apply to claims filed on or after October 23, 2008. A claimant may also specifically request consideration under the amended criteria, irrespective of whether the disability has worsened since the last review. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4). 

In this case the Veteran's claim was received prior to October 2008 and she did not request her service-connected scars be rated under the revised criteria, therefore, the criteria prior to October 23, 2008 apply.

Under the former criteria for Diagnostic Code 7800, an 80 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement; a 50 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement; a 30 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement; and a 10 evaluation is warranted with one characteristic of disfigurement. 

The 8 characteristics of disfigurement, for the purpose of evaluation under §4.118, are: 
Scar 5 or more inches (13 or more cm.) in length; 

scar at least one-quarter inch (0.6 cm.) wide at widest part; 

surface contour of scar elevated or depressed on palpation; 

scar adherent to underlying tissue; 

skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); 

skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); 

underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.);

and skin induration and inflexible in an area exceeding 6 square inches (39 sq. cm.). 

Unretouched color photographs are taken into consideration when evaluating under these criteria. 38 C.F.R. § 4.118, Code 7800 (prior to October 23, 2008). 

Under Diagnostic Code 7803, superficial unstable scars are assigned a 10 percent rating. Note 1 states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 states a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7803 (prior to October 23, 2008).

Under Diagnostic Code 7804 superficial scars painful on examination are assigned a 10 percent rating. Note 1 states a superficial scar is one not associated with underlying soft tissue damage. Note 2 states in this case, a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See 38 C.F.R. § 4.68 on the amputation rule). 38 C.F.R. § 4.118, Code 7804 (prior to October 23, 2008).

Under Diagnostic Code 7805, other scars are rated based on limitation of function of the effected part. 38 C.F.R. § 4.118, Code 7805 (prior to October 23, 2008).

On February 2008 pre-discharge VA examination, the Veteran was noted to have had 3 lipomas with the last one being excised in April 2007. The examination revealed unremarkable, bleak, linear surgical scars on the right posterior neck. Each scar was approximately 2 to 2.5 cm long.

On September 2008 VA examination, the examiner noted there were scars on the neck that were depressed and measured about 2 cm by .2 cm. The scars had hypopigmentation of less than six square inches. However, there was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hyperpigmentation, abnormal texture, inflammation, or edema. There was a third neck scar located on the posterior neck that measured about 3 cm by .2 cm. It had hypopigmentation of less than 6 square inches. As to these scars, there was also no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, or abnormal texture.

On April 2012 QTC VA examination, the examiner found the Veteran had scars on the neck that were not painful, productive of frequent loss of covering of skin over the scar, or unstable. The sizes of the scars were as follows: Scar 1 was 2.5 x .1 cm; scar 2 was 2.0 x .1 cm; and scar 3 was 2.5 x .1 cm. The scars were not elevated, depressed, or adherent to underlying tissue, and there was no missing underlying soft tissue. There was no abnormal pigmentation or texture of the neck. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scars did not cause limitation of function. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with the scars such as muscle or nerve damage. The scars did not impact her ability to work.

In January 2013, the Veteran testified that the scars frequently itched and were irritated, but they did not ooze and they were completely healed. See page 24 of the hearing transcript.

Because none of the scars were painful on examination, unstable, or had any of the characteristics of disfigurement, a compensable rating is not warranted. Despite the Veteran's statements that her scars had many of the characteristics of disfigurement, the VA examinations consistently contradicted her and showed that none of the characteristics were present. Given the experience and training of the examiners, the objective medical findings are more probative in this matter in determining the manifestations of the scars. The Board has found the Veteran not credible and less probative in regard to her contentions about manifestation of her neck scars due to their inconsistency with the other evidence of record. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also 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").  VA cannot ignore a veteran's testimony simply because the veteran is an interested party, but his personal interest may affect the credibility of the evidence.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The preponderance of the evidence is against assigning compensable ratings for the Veteran's 3 service-connected neck scars. The benefit-of-the-doubt doctrine is not applicable and the claims are denied. Gilbert, supra.

C. Two C-Section Scars

The claim involving the Veteran's 2 C-section scars was also received prior to October 2008 and since the Veteran did not request consideration under the revised criteria, the former criteria noted above will be applied.

In addition to the scar codes already noted, Diagnostic Codes 7801 and 7802 are addressed since they relate to scars due to other causes, not of the head, face, or neck. Under Code7801, scars that are deep or cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) warrant a 10 percent rating. 38 C.F.R. § 4.118, Code 7801. Higher ratings are available for scars in larger areas. A deep scar is one associated with underlying soft tissue damage. Id. at Note (2).

Under Code 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a 10 percent rating. 38 C.F.R. § 4.118, Code 7802.

The Veteran contends her 2 C-section scars should be rated 20 percent disabling because the scars were deep, caused limitation of motion, exceeded 144 square inches, had deep scar tissue with underlying soft tissue damage, caused pain, and had keloid formation, hyperpigmentation, abnormal texture, and edema. See the March 2009 NOD.

On September 2008 VA QTC examination, the Veteran reported that the scars did not cause any functional impairment. The examination revealed a scar located on suprapubic area that was level and measured approximately 14 cm by .1 cm. The scar had hypopigmentation of less than 6 square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hyperpigmentation, abnormal texture, inflammation or edema. 

In January 2013, the Veteran testified that the scars were healed and did not ooze.

Because the 2 C-section scars were not painful on examination, unstable, deep, or cause limitation of motion, and did not cover an area of at least 39 sq. cm., a compensable rating is not warranted. Although the Veteran offered statements to the contrary, these are not credible and less probative than examination findings since her statements are inconsistent with examination findings. See Caluza, supra; Madden, supra; Cartwright, supra. 

Since the preponderance of the evidence is against assigning compensable ratings for the 2 service-connected C-section scars, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. Gilbert, supra.

D. Anemia

The Veteran contends her anemia should be assigned an initial 20 percent rating because she experienced light-headedness, headaches, fatigue, bleeding, weakness, difficulty exercising, shortness of breath, rapid heartbeat and chest pain associated with her anemia. She stated that even though she took vitamins with iron and her test results were good, she was still tired and fatigued and missed work as a result.

The Veteran's anemia is rated under Diagnostic Code 7700, which provides ratings for hypochromic-microcytic and megaloblastic anemia, such as iron deficiency and pernicious anemia. Anemia with hemoglobin 10gm/100ml or less, asymptomatic, is rated noncompensably (0 percent) disabling. Anemia with hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability or headaches, is rated 10 percent disabling. Anemia with hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, is rated 30 percent disabling. Anemia with hemoglobin 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months), is rated 70 percent disabling. Anemia with hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling. A Note to Diagnostic Code 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. 38 C.F.R. § 4.117.

On September 2008 QTC VA examination, the Veteran reported her medical history and indicated the anemia was associated with lightheadedness, headaches, easy fatigability, weakness, bleeding easily, chest pain, and lack of energy. The symptoms she reported as not responsive to treatment were fatigue and shortness of breath. She indicated she was on continuous treatment to control the condition because it was chronic as long as heavy bleeding continued. 

The VA examination revealed there were no signs of anemia. Complete blood count  (CBC) testing was within normal limits with only some insignificant abnormalities. The hemoglobin level was 14.3 g/dL and the hematocrit level was 42.9 percent. The diagnosis was anemia with good response to therapy. The examiner noted subjectively the Veteran took daily vitamins with iron. Objectively, the examiner indicated the Veteran's fatigue was more likely attributed to her anxiety and depression rather than anemia. He stated her anemia was under control.

On April 2012 QTC VA examination, the examiner noted the Veteran had anemia due to bleeding from fibroids and that it was not currently a problem. The Veteran did not have an anemic condition. There was no current condition, complications, and/or residuals of anemia. There were no recurring infections, thrombocytopenia, polycythemia vera, sickle cell anemia or other pertinent findings. Blood tests revealed a hemoglobin level of 144 and platelet count of 248. There was no functional impact due to her anemia.

Despite multiple complaints the Veteran associated with her anemia, the record shows her anemia was successfully treated and asymptomatic, and hemoglobin levels were within normal limits. The September 2008 VA examiner stated that some of the Veteran's remaining symptoms were likely due to other causes. In light of their training and medical experience, both examiner's opinions that the anemia was not symptomatic is more probative than the Veteran's statement. 

Since the preponderance of the evidence is against a compensable rating for anemia, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. Gilbert, supra.

E. Liver Cysts

The Veteran contends that her liver cyst should be assigned an initial 20 percent rating because it was palpable and produced symptoms based on its size. See the March 2009 NOD. 

The disability is rated under Diagnostic Code 7344 for benign neoplasms, exclusive of skin growths. The rating schedule requires this disability be rated under an appropriate diagnostic code depending on the predominant disability or the specific residuals after treatment. 38 C.F.R. § 4.114, Code 7344. 

The other Diagnostic Codes pertaining to the liver are Code 7311 for residuals of liver injury, Code 7312 for cirrhosis of the liver, and Code 7343 for malignant neoplasms of the digestive system. See38 C.F.R. § 4.114.

Diagnostic Code 7311 provides that residuals of liver injury are to be rated separately dependent on the specific residuals. Adhesions of peritoneum are to be rated under Diagnostic Code 7301.

In August 2008, the Veteran reported a history of symptoms associated with her liver cyst. She indicated her liver condition caused easy fatigue, abdominal pain, nausea and vomiting, urinary infections and overactive bladder. The cyst on the liver specifically caused pain and discomfort in the upper right abdomen. She stated it was detected on a physical and that the pain was caused by wear and tear of fluids and the flow of urine. The abdominal pain was frequent and occurred 2/3 of the year; the severity of symptoms was reported as functional but unable to go to work. 

On September 2008 QTC VA examination, the examiner indicated the liver cyst did not cause easy fatigability, GI disturbances, nausea and vomiting, loss of appetite, arthralgia, or jaundice and the condition did not cause incapacitation. There was no current treatment and no functional impairment as a result of the cyst. Liver function tests were normal. She did not require abdominal tapping for her liver condition and it did not cause a coma or periods of confusion. She was not receiving any treatment for the cyst and she did not have a history of a liver transplant. The diagnosis was liver cyst, which was an incidental finding. Palpation of the abdomen did not reveal any liver enlargement. There were no objective factors found by the examiner and the Veteran did not have any other liver problems such as hepatitis, liver malignancy, or cirrhosis. The Veteran did not have any functional impairment due to this disability.

An August 2010 treatment record notes the Veteran's complaints of discomfort in her upper right abdomen. An ultrasound revealed her liver was normal in size, contour, and echogenicity. There was no evidence of cholecystitis.

On April 2012 QTC VA examination, the examiner noted that continuous medication was not needed to control the Veteran's cyst. There were currently no signs or symptoms attributable to chronic or infectious liver disease. There was no Hepatitis C diagnosis or incapacitating episodes in the past 12 months due to a liver condition. The Veteran did not have any signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis. She was not a liver transplant candidate, there was no injury to the liver, and there were no scars associated with treatment for the disorder. No imaging studies or liver biopsies were performed and the disability did not impact her ability to work.

In January 2013 the Veteran testified that she had pain but she did not know if it was related to the liver cyst. She said when it was biopsied previously she was told that it could affect her digestive system. She was not receiving treatment for the cyst. See hearing transcript pages 29-31.

Despite the Veteran's complaints, the VA examiners have not attributed any symptoms to the Veteran's liver cyst. Aside from the presence of a cyst, the record is absent clinical documentation of other findings, symptoms, manifestations, or impairment associated with the cyst. Since there is no symptoms or impairment due to the cyst there is no basis to assign a compensable rating for her service-connected liver cyst under any of the Diagnostic Codes noted that relate to the liver. 

Since the preponderance of the evidence is against assigning an initial compensable rating, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. Gilbert, supra.

f. Uterine Fibroids and Metromenorrhagia

Because uterine fibroids and metromenorrhagia are gynecological issues they will be addressed together. The Veteran contends a 30 percent rating should be assigned for her uterine fibroids. In her June 2008 NOD she reported having pain and heavy bleeding due to her fibroids as well as pelvic pain and abdominal, pelvic, and low back pressure. She also reported that because she took Motrin for her headaches it caused her to have heavier, prolonged, and painful menses with spotting in between menstrual cycles. The Veteran also contends her metromenorrhagia should be assigned a 20 percent rating because she continued to have pain and heavy menstrual bleeding; unbearable bloating; spotting and bleeding between menstrual cycles; and abdominal, pelvic, and low back pressure. See the March 2009 NOD.

On March 2008 VA gynecological examination, it was noted the Veteran was diagnosed with fibroids in 1998 after complaining of menorrhagia and dysmenorrheal for one year. She had no specific treatment for this other than Motrin and she was placed on birth control pills in 2004, which initially decreased the bleeding. She reported that her menses have become more irregular with intramenstrual bleeding during the past 3 to 4 months. Her pain sometimes caused her to miss work and it was usually 5 to 6/10 in severity. She used approximately 10 pads a day on her heaviest day. Her uterus was approximately 8 to 10 weeks in size, irregular. There were no adnexal masses. A rectal examination confirmed the above findings. A pelvic ultrasound revealed a subserosal fibroid left upper body posteriorly with normal endometrium and ovaries (the fibroid measured 3.6 cm).

An August 2008 medical history notes the Veteran reported a history of heavy and irregular menstrual bleeding, pelvic pain, and pelvic pressure. On September 2008 QTC VA examination, she reported having heavy bleeding for 10 years that was not controlled by treatment. She complained of pelvic pain and pressure. She currently used birth control pills but symptoms of frequent pressure, pain, bloating, vomiting, and heavy bleeding were not responsive to therapy or treatment. She reported having to leave work 4 to 5 times a month due to heavy bleeding. The pelvic examination revealed a uterus of normal size with no palpable masses, abnormal discharge, or undue tenderness.

A June 2012 treatment record indicates the Veteran was in menopause and had not had a menstrual cycle since September 1, 2010.

On April 2012 QTC VA gynecological examination, the examiner noted the Veteran had a history of severe bleeding. Her current symptoms associated with the condition were intermittent pain and pelvic pressure. There was no constant pain, irregular menstruation, frequent or continuous menstrual disturbances, or other signs and/or symptoms. She did not receive treatment for symptoms and there were no findings of any diseases, injuries, and/or adhesions of the reproductive organs. There was no treatment or medication for symptoms related to reproductive tract conditions. The Veteran had not had a hysterectomy or uterine prolapsed. The signs of uterine fibroids were pain and pressure; there was no adhesion, marked displacement or enlargement, irregular menstruation, frequent or continuous menstrual disturbance. There was no fistula or endometriosis or tumors or neoplasm or scars. The only gynecological diagnosis she had was uterine fibroids, which had no impact on ability to work.

In a March 2013 statement, the Veteran indicated she had an ultrasound in February 2013 at Fort Belvoir that showed she still had a uterine fibroid. Although this ultrasound record is not in the claims file, the presence of a fibroid is not in dispute. It is not prejudicial to decide the claim without the record because disability is rated based on manifestations and continuous treatment rather than the presence of a fibroid.

The Veteran's uterine fibroids are rated under Diagnostic Code 7613, which relates to disease, injury, or adhesions of the uterus. This disability, in turn, is rated under the General Rating Formula for Disease, Injury, or Adhesions of the Female Reproductive Organs. 38 C.F.R. § 4.116. Under the formula, symptoms that do not require continuous treatment warrant a noncompensable rating, and a 10 percent rating is assigned for disease, injury, or adhesions of the uterus where symptoms require continuous treatment. Id. A 30 percent rating is warranted where symptoms cannot be controlled by continuous treatment. Id. 

The Veteran's metromenorrhagia is rated by analogy under Diagnostic Code 7629. Under this code, a 10 percent rating is assigned for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. A 30 percent rating is assigned where there is pelvic pain or heavy or irregular bleeding not controlled by treatment. A maximum 50 percent rating is assigned for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. 38 C.F.R. § 4.116.

The Veteran's metromenorrhagia is assigned a staged rating based on the evidence of record. See Fenderson, supra. This disability, which involves uterine bleeding, is shown to warrant a compensable rating of 30 percent from April 1, 2008, the day following her separation from service, to September 1, 2010. Throughout this period the Veteran was shown to have heavy or irregular bleeding that was treated continuously with birth control pills, and the pain and heavy bleeding were unresponsive to treatment. Since she has been post menopausal with her last menstrual cycle on September 1, 2010, a compensable rating is not warranted as of September 2, 2010 due to the absence of heavy bleeding and no longer needing birth control pills to treat the disability. The April 2012 VA examination indicates she only has pelvic pressure, but not pain, and occasional spotting. She also no longer had a diagnosis of metromenorrhagia at that time. In the absence of irregular or heavy bleeding and continuous treatment, a noncompensable rating for metromenorrhagia is warranted beginning September 2, 2010. 

At no time was a 50 percent rating assignable since the Veteran was not shown to have bowel or bladder lesion or bowel or bladder symptoms associated with metromenorrhagia. The Veteran does have bladder symptoms but these are rated pursuant to another service-connected disability. 

Regarding the Veteran's uterine fibroids, a compensable rating is not assignable at any time during the appeal, therefore, the claim for a higher initial rating will be denied.

During the course of the appeal, the uterine fibroids did not required continuous treatment. The only continuous treatment shown was birth control pills, but as already discussed this was in response to the Veteran's heavy bleeding and pain associated with metromenorrhagia. To evaluate these symptoms a second time as a separate disability would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; compare 38 C.F.R. § 4.14 (the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). 

The April 2012 VA examiner also noted the Veteran did not receive any form of treatment for her uterine fibroids. Therefore, in the absence of continuous treatment, a preponderance of the evidence is against assignment of a compensable rating for uterine fibroids. The benefit-of-the-doubt doctrine does not apply and the claim will be denied for a higher rating for uterine fibroids.


Extra-schedular Consideration

At no point since the date of the claims have the service-connected disabilities on appeal been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than those assigned above, on an extra-schedular basis. See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.

The schedular criteria are adequate to rate each of the disabilities considered above. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment. The level of disability based on the manifestations was adequately reflected in the rating criteria with regard to the Veteran's headaches, scars, anemia, liver cysts, and gynecological disorders. The evidence does not show these disabilities are unusual or exceptional in their manifestations or level of impairment produced. In many instances the Veteran over reported or attributed symptoms or manifestations associated with her disabilities that VA examiners did not find to be related to the disabilities or found not to be present at all. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Service connection for a left forearm disorder is denied.

Service connection for residuals of a right heel injury isallowed.

An initial compensable rating for headaches is denied.

Initial compensable ratings for 3 neck scars, residuals of excised lipomas are denied.

Initial compensable ratings for 2 C-section scars are denied.

An initial compensable rating for anemia is denied.

An initial compensable rating for a liver cyst is denied. 

An initial rating of 30 percent for metromenorrhagia from April 1, 2008 to September 2, 2010 is granted, subject to the regulations controlling disbursement of VA monetary benefits.

An initial compensable rating for metromenorrhagia beginning on September 2, 2010 is denied.

An initial compensable rating for uterine fibroids is denied.


REMAND

The Board finds that additional development is necessary before appellate review may be conducted regarding the issues addressed below. Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with VCAA notice regarding the evidence needed to substantiate a claim for a cervical spine disorder secondary to her service-connected lipoma.

2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sinusitis, cervical spine disorder, bilateral hand and ankle neuropathy, Raynaud's disease, bilateral knee disabilities, hemorrhoids, lipoma, and atopic dermatitis/eczema since she separated from service. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. 

A specific request should be made for copies of complete treatment records from Tricare, Bethesda, the VA Medical Center where she received treatment, Worker's Compensation records, and Fort Belvoir Community Hospital since separation from service.

If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified and the record clearly documented.

3. After all available records have been associated with the claims file or Virtual VA e-folder, schedule the Veteran for an appropriate examination to determine the nature and etiology of the claimed sinus disorder. Make arrangements for all indicated tests and studies to be performed. The following considerations will govern the examination:

a. The claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

b. After obtaining any relevant clinical history and conducting appropriate clinical testing, the examiner must state whether, based on the state of the evidence and medical knowledge, the Veteran has a diagnosed sinus disorder.

c. The examiner must provide an opinion as to whether the Veteran's sinus disorder had its onset during service or is otherwise related to any incident of her military service.

d. If the Veteran is found to have sinus manifestations that are not attributable to a known clinical diagnosis, then the examiner must provide an opinion as to whether the claimed signs and symptoms of a sinus disability can be collectively linked to an undiagnosed illness or a medically unexplained chronic multisymptom illness due to her Gulf War service.

e. Although the examiner is expected to review the claims file in its entirety, his or her attention is drawn to the following:

* An October 1992 service treatment record notes complaints of coughing, runny nose, and congestion for 2 weeks. The assessment was URI. 

* A March 1997 service treatment record notes complaints of a cough and runny nose for 2 weeks. The assessment was sinusitis. Another record that month contains an assessment of possible new onset of allergic rhinitis.  

* An October 2004 post-deployment record shows the Veteran reported having a runny nose during her deployment.  

* A January 2005 service treatment record shows the Veteran had frontal sinus headaches and indicates she was treated for sinusitis.  

* An August 2006 service treatment records notes symptoms of runny nose, sinus pressure, sore throat, and teary eyes.  

* An October 2007 medical history report was positive for sinusitis, which was noted to have been diagnosed in 2004.

* On February 2008 pre-discharge VA examination, the Veteran had no complaints, but there was tenderness to percussion over the frontal sinuses and maxillary sinuses, with mild tenderness reported to pressure over V1 and V2 branch exit points, but not one site specifically. She was noted to have features of sinus disease.

f. A complete explanation for all opinions expressed must be included in the examination report. The explanation must include specific reference to both medically and factually relevant evidence in the record.

4. After all available records have been associated with the claims file or Virtual VA e-folder, schedule the Veteran for an appropriate examination to determine the nature and etiology of the claimed cervical spine disorder. Make arrangements for all indicated tests and studies to be performed. The following considerations will govern the examination:

a. The claims folder and a copy of this remand must be made available to the examiner for in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

b. After obtaining any relevant clinical history and conducting appropriate clinical testing, the examiner must state whether, based on the state of the evidence and medical knowledge, the Veteran has a current cervical spine disorder, to include degenerative changes that had its onset during service or is otherwise related to any incident of her military service.

c. If there is no link to service, the examiner must provide an opinion as to whether the service-connected lipoma of the neck caused or permanently worsened the cervical spine disorder.

d. If the Veteran is found to have cervical spine manifestations that are not attributable to a known clinical diagnosis, then the examiner must provide an opinion as to whether the claimed signs and symptoms of a sinus disability can be collectively linked to an undiagnosed illness or a medically unexplained chronic multisymptom illness due to the Veteran's Gulf War service.

e. Although the examiner is expected to review the claims file in its entirety, his or her attention is drawn to the following:

* Service treatment records included November 2007 X-rays of the cervical spine that were normal.

* On February 2008 pre-discharge VA examination, the Veteran complained of cervical spine pain. No diagnosis or etiology was established.

* September 2008 cervical spine X-rays were normal.

* January 2012 X-rays of the cervical spine revealed mild degenerative changes.

f. A complete explanation for all opinions expressed must be included in the examination report. The explanation must include specific reference to both medically and factually relevant evidence in the record.

5. After all available records have been associated with the claims file or Virtual VA e-folder schedule the Veteran for neurological VA examination to determine the nature and etiology of the claimed neurological disorder affecting her bilateral ankles and hands. Make arrangements for all indicated tests and studies to be performed. The following considerations will govern the examination:

a. The claims folder and a copy of this remand must be made available to the examiner for in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

b. After obtaining any relevant clinical history and conducting appropriate clinical testing, the examiner must state whether, based on the state of the evidence and medical knowledge comment on whether the Veteran has a diagnosed neurological disorder of the ankles and/or hands.

c. The examiner must provide an opinion as to whether the Veteran's neurological disorder of the hands and/or ankles had its onset during service or is otherwise related to any incident of her service.

d. If the Veteran is found to have neurological manifestations in the ankles and/or hands that are not attributable to a known clinical diagnosis, then the examiner must provide an opinion as to whether the claimed signs and symptoms of a neurological disability can be collectively linked to an undiagnosed illness or a medically unexplained chronic multisymptom illness due to the Veteran's Gulf War service.

e. Although the examiner is expected to review the claims files in their entirely, his or her attention is drawn to the following:

* An April 1993 service treatment record showed the Veteran complained of numbness in her feet and toes and cold intolerance.  There was no history of frostbite or cold injury. The impression was possible Raynaud's disease. 

* An October 1993 service treatment record of a consult request was for follow up of an assessment of possible Raynaud's phenomenon.  

* A November 1993 consult report during service shows the Veteran complained that her fingers and toes turned black with cold exposure. The assessment was racial related Raynaud's type tendency. 

* A January 1995 service treatment record notes complaints of an intermittent sensation of cold in her fingers and toes. The assessment was possible Raynaud's disease. 

* An October 2004 post deployment health assessment shows the Veteran gave positive responses to symptoms during her deployment that included numbness and tingling in the hands or feet.

* On February 2008 VA pre-discharge general medical examination, the Veteran reported having "neuropathy of the hands and ankles" since 1985. The diagnosis was Raynaud's disease. The pre-discharge neurology VA examination noted there was no neurological diagnosis of neuropathy.

* On September 2008 QTC VA examination, the Veteran complained of persistent coldness of the extremities.

* A January 2013 radiology report shows the Veteran complained of numbness/cold sensation in her right hand and that she was evaluated for cervical spine stenosis.

f. A complete explanation for all opinions expressed must be included in the examination report. The explanation must include specific reference to both medically and factually relevant evidence in the record.

6. After all available records have been associated with the claims file or Virtual VA e-folder Schedule the Veteran for a vascular VA examination to determine the whether the Veteran has Raynaud's disease and, if so, whether it is related to her service. Make arrangements for all indicated tests and studies to be performed. The following considerations will govern the examination:

a. The claims folder and a copy of this remand must be made available to the examiner for in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

b. After obtaining any relevant clinical history and conducting appropriate clinical testing, the examiner must provide state as to whether the Veteran has a diagnosis of Raynaud's disease.

c. Although the examiner is expected to review the claims files in their entirely, his or her attention is drawn to the following:

* An April 1993 service treatment record shows the Veteran complained of numbness in her feet and toes and cold intolerance.  There was no history of frostbite or cold injury. The impression was possible Raynaud's disease. 

* An October 1993 service treatment record of a consult request was for follow up of an assessment of possible Raynaud's phenomenon.  

* A November 1993 consult report during service shows the Veteran complained that her fingers and toes turned black with cold exposure. The assessment was racial related Raynaud's type tendency. 

* A January 1995 service treatment record notes complaints of an intermittent sensation of cold in her fingers and toes. The assessment was possible Raynaud's disease. 

* An October 2004 post deployment health assessment shows the Veteran gave positive responses to symptoms during her deployment that included numbness and tingling in the hands or feet.

* On February 2008 VA pre-discharge general medical examination, the Veteran reported having "neuropathy of the hands and ankles" since 1985. The diagnosis was Raynaud's disease. The pre-discharge neurology VA examination noted a history of the Raynaud's disease, but there was no neurological diagnosis of neuropathy.

* On September 2008 QTC VA examination, the Veteran complained of persistent coldness of the extremities.

* A January 2013 radiology report shows the Veteran complained of numbness/cold sensation in her right hand and that she was evaluated for cervical spine stenosis.

d. A complete explanation for all opinions expressed must be included in the examination report. The explanation must include specific reference to both medically and factually relevant evidence in the record.

7. Arrange for the Veteran to have an orthopedic VA examination to determine the current severity of her service-connected bilateral knee disabilities. The claims folder must be made available to the examiner for review in conjunction with the examination.  

With regard to each knee disability, the following considerations will govern the examination:

a. The examiner must conduct complete range of motion studies and describe all current left knee and right knee symptomatology. Range of motion studies must include repetitive use testing and the examiner must identify any objective evidence of pain and the specific limitation of motion. To the extent possible, the examiner must also comment whether there is additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. Any incoordination, weakened movement, flare-ups, and excess fatigability on use must be described by the examiner.

b. the examiner must state for each knee whether there is recurrent subluxation or lateral instability, and, if so, whether disability manifested by recurrent subluxation or lateral instability is best characterized as "slight," "moderate," or "severe."

c. the examiner must state for each knee whether the semi lunar cartilage was removed and is symptomatic.

d. the examiner must state for each knee whether the semi lunar cartilage is dislocated, and whether there are frequent episodes of locking, pain, or effusion into the joint.  

8. Arrange for the Veteran to have an appropriate VA examination to determine the current severity of her service-connected hemorrhoids. The claims folder must be made available to the examiner for review in conjunction with the examination.  

The following considerations will govern the evaluation:

a. The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the opinion, and the examiner must specifically acknowledge receipt and review of these materials in any report generated.  

b. The examiner must report the severity of the hemorrhoid disorder and note all pertinent findings. Specifically, the examiner must report as to whether there is clinically noted:

* Large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences;

* The presence and frequency of bleeding;

* Where there are any secondary fissures.

9. Arrange for the Veteran to have an appropriate VA examination to determine the current severity of her service-connected lipoma on the neck.  

The following considerations will govern the evaluation:

a. The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the examination, and the examiner must specifically acknowledge receipt and review of these materials in any report generated.  

b. The examiner will state whether there has been a recurrence of the lipoma and, if so, note all symptoms, findings, and complications that are associated with it.

10. The Veteran is advised that it is her responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. § 3.655 (2012).

11. Following completion of the foregoing, the RO/AMC must ensure completion of all the development and notice actions in the above directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). In particular, the RO/AMC should determine whether the examiners have responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012).

12. Regarding the service-connected PTSD with depressive disorder, the Veteran should be scheduled for an in-person Board hearing in accordance with the provisions of 38 C.F.R. §§ 19.75, 20.700(e), 20.704 (2012). 

13. The RO/AMC shall issue an SOC addressing the issue of entitlement to an initial higher rating for bladder instability from April 1, 2008 to June 12, 2008. Only if the Veteran submits a timely Substantive Appeal addressing this issue should it be returned to the Board for appellate review.

14. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims on appeal should be readjudicated. If any claim remains denied, an SSOC should be provided to the Veteran and her representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review.

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

These claims 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).



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs