Citation Nr: 1324274	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  09-24 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether the Veteran submitted a timely Notice of Disagreement (NOD) to an August 2002 rating decision that denied service connection for post traumatic stress disorder (PTSD).  

2.  Entitlement to service connection for a disability manifested by high triglycerides and high cholesterol.  

3. Entitlement to service connection for a disability manifested by chronic obesity (claimed as being overweight), to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

4. Entitlement to service connection for a disability manifested by poor blood circulation, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

5. Entitlement to service connection for a disability manifested by dry mouth, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

6. Entitlement to service connection for Gulf War Syndrome as a qualifying chronic disability under 38 C.F.R. § 3.317.  

7.  Entitlement to service connection for a disability manifested by polyps, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

8.  Entitlement to service connection for a chronic gastrointestinal disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

9.  Entitlement to service connection for a bilateral eye disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

10. Entitlement to service connection for a chronic respiratory disorder, including asthma, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

11. Entitlement to service connection for heart disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  

12.  Entitlement to service connection for hypertension.  

13.  Entitlement to service connection for a chronic skin disorder, including skin cancer.  

14. Entitlement to service connection for varicose veins.  

15. Entitlement to service connection for sleep apnea.  

16.  Entitlement to service connection for residuals of traumatic brain injury (TBI).  

17.  Entitlement to service connection for a disability manifested by lack of balance and lack of eye-hand coordination.  

18.  Entitlement to service connection for residuals of a right ankle injury.  

19.  Entitlement to service connection for a bilateral knee disorder.  

20.  Entitlement to service connection for a dental disability.  

21.  Entitlement to an initial compensable rating for bilateral hearing loss.  
 
22. Entitlement to an initial rating in excess of 10 percent for hallux valgus of the right foot.  
 
23.  Entitlement to an initial compensable rating for hallux valgus of the left foot.  

24. Entitlement to an initial rating in excess of 10 percent for a left ankle disability.  

25.  Entitlement to special monthly compensation (SMC) on account of the need for the aid and attendance of another (A&A).  

26.  Entitlement to a total disability by reason of individual unemployability due to service connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant (the Veteran)


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the Appellant, had over 30 years service with the National Guard and Reserves which included numerous periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) as well as having served on active duty in the Persian Gulf from January 1991 to July 1991.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of July 2009, September 2009, October 2009, and May 2010 rating decisions of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA).  The case is now under the jurisdiction of the St. Petersburg, Florida RO.  

In February 2013, a travel board hearing was held before the undersigned in St. Petersburg, Florida.  A transcript of the hearing is available through virtual VA.

The issues of service connection for bilateral knee disabilities, a right ankle disorder, a disability manifested by lack of balance and hand-eye coordination, and a dental disorder, an increased ratings for a left ankle disability, special monthly compensation on account of the need for the aid and attendance of another and TDIU 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 RO denied service connection for PTSD in an August 2002 rating decision.  Although notified of the decision in August 2002, the Veteran did not initiate an appeal within one year of the notice letter.  

2.  The first evidence in the claims folders of a statement from the Veteran which may be reasonably construed as an NOD was dated and received by the RO in February 2008, beyond the one-year time period to appeal. 

3.  Laboratory findings alone, such as elevated triglycerides and cholesterol, are not disabilities for which VA compensation are payable.  

4.  The Veteran did not manifest chronic obesity during service.  

5.  A disability manifested by chronic obesity is not a disability for which VA compensation are payable.  

6.  Pathology related to complaints of poor blood circulation have not been demonstrated at any time during the pendency of the appeal.  

7.  A disability manifested by poor blood circulation is not currently manifested to a compensable degree.  

8.  Pathology related to complaints of a disability manifested by dry mouth have not been demonstrated at any time during the pendency of the appeal.  

9.  A disability manifested by dry mouth poor is not currently manifested to a compensable degree.  

10.  A chronic qualifying disability under the provisions of 38 C.F.R. § 3.317 (Gulf War Syndrome) has not been demonstrated at any time during the pendency of the appeal.  

11.  A disability manifested by polyps were not evident during service or until many years thereafter and are not shown to have been caused by any in-service event.

12.  A chronic gastrointestinal disability was not evident during service, has not been demonstrated to a compensable degree at any time since service, and is not shown to have been caused by any in-service event.  

13.  The Veteran manifested decreased visual acuity at times while on active duty that is shown to be the result of presybopia, which is not a disability for which VA compensation is payable.  

14.  Pathology related to a chronic respiratory disorder, including asthma, have not been demonstrated at any time during the pendency of the appeal.  

15.  A disability manifested by a chronic respiratory disorder, including asthma, is not currently manifested to a compensable degree.  

16.  The Veteran had an episode of bradycardia during service, but a chronic heart disability was not demonstrated during service, and has not been shown postservice.  

17.  The Veteran had episodes of elevated blood pressure readings during service, but a chronic hypertension was not demonstrated during service.  

18.  Hypertension was first manifested in 2006, many years after service.  

19.  Skin cancer was not evident during service and has not been demonstrated at any time during the pendency of the appeal.  

20.  The Veteran has been diagnosed with a skin disorder, lentigines, that was not manifested during service or until many years thereafter.  

21.  Varicose veins were not evident during service or until many years thereafter and are not shown to have been caused by any in-service event.  

22.  Sleep apnea was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event.  

23.  The Veteran sustained a head injury in February 1991 while in combat in close proximity to an exploding Scud missile.  

24.  The evidence regarding whether the Veteran has current residuals of a TBI sustained in February 1991 is, at least, in equipoise.  

25.  The Veteran's hearing acuity is manifested by average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 31.25 decibels in the right ear and 43.75 decibels in the left ear; with speech recognition ability 98 percent correct in the right ear and 100 percent correct in the left ear.  

26.  The Veteran underwent surgery of the right great toe equivalent to metatarsal resection.  

27.  Hallux valgus of the right foot is manifested by pain, without evidence of Morton's neuroma, malunion or nonunion of any of the tarsals or metatarsal and no evidence of other foot injury or disability.  

28.  Hallux valgus of the left foot is manifested by pain, without evidence of Morton's neuroma, malunion or nonunion of any of the tarsals or metatarsal and no evidence of other foot injury or disability.  


CONCLUSIONS OF LAW

1.  The requirements are not met for a timely NOD within one year of the August 2002 rating decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.109(b), 19.34, 20.101(c), 20.200, 20.201, 20.300, 20.302(a), 20.305 (2012). 

2.  High triglycerides and high cholesterol are not a diseases, disabilities, or injuries for which applicable law permits compensation or service connection.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303 (2012).

3.  A disability manifested by chronic obesity was not incurred in or aggravated by service.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).

4.  A chronic disability manifested by poor blood circulation was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

5.  A chronic disability manifested by dry mouth was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

6.  A chronic qualifying disability described as Gulf War Syndrome was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

7.  A chronic disability manifested by polyps was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

8.  A chronic gastrointestinal disability was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

9.  The Veteran's eye disability is not a diseases, disability, or injury for which applicable law permits compensation or service connection.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303 (2012).

10.  A chronic respiratory disability, including asthma, was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

11.  Service connection for a chronic heart disability, including bradycardia, is not warranted.  38 U.S.C.A. §§ 101(16) (21), (24); 1110 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.317 (2012).  

12.  Hypertension was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 101(16) (21), (24); 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.307, 3.309 (2012).  

13.  A chronic skin disability, including skin cancer was not incurred in or aggravated by active duty service, and incurrence or aggravation during such service may not be presumed.  38 U.S.C.A. §§ 101(16) (21), (24); 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303, 3.307, 3.309, 3.317 (2012).  

14.  Varicose veins was neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 101(16) (21), (24); 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303 (2012).

15.  Sleep apnea was neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 101(16) (21), (24); 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.303 (2012).

16.  With the resolution of reasonable doubt, residuals of a TBI were incurred in service.  38 U.S.C.A. §§ 1110, 1131 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.302, 3.303 (2009).  

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

18.  The criteria for an initial rating in excess of 10 percent for hallux valgus of the right foot have not been met for any period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Code 5280 (2012).  

19.  The criteria for an initial compensable rating for hallux valgus of the left foot have not been met for any period.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Code 5280 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  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 a 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

With regard to the Veteran's appeal of the timeliness of a NOD, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. Denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004).  That is, the U.S. Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence, as is the case here.  Dela Cruz, 15 Vet. App. at 149 (2001).  Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist regarding this issue.  

With regard to the service connection issues, the Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims.  March 2008, March 2009, and July 2009 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing.  This letter also informed the Veteran of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond and supplement the record.

As to the decisions involving increased disability ratings, the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award.  As such, statutory notice had served its purpose, and its application was no longer required.  See Dingess 19 Vet. App. At 490.  Several statements of the case (SOC) provided notice on the "downstream" elements of rating and effective dates, and readjudicated the matters.  38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  

With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including records utilized in a disability determination by the Social Security Administration (SSA) have been secured.  The Veteran was afforded VA medical examinations. Most recently in November 2011.  The Board finds that the opinions obtained are adequate.  The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records.  The examiner also provided a detailed rationale for the opinion rendered.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor the representative has challenged the adequacy of the examination obtained, with the exception of findings related to the Veteran's psychiatric disability, which is not at issue at the present time.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  

Although the Veteran was not provided with a VA examination addressing the etiology of his high cholesterol, high triglycerides, overweight, blood circulation disorder, disability manifested by dry mouth or bilateral knee disability, an examination was not warranted for these issues, as the evidence does not show a diagnosis of a disorder for which service connection could be granted.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  

Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

Timeliness of NOD

Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a Statement of the Case (SOC) is furnished to the claimant.  In essence, the following sequence is required: there must be a decision by the RO, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant, and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal.  See 38 C.F.R. §§ 20.200 , 20.201, 20.202, 20.302 (2012).  Proper completion and filing of a Substantive Appeal are the last actions a claimant needs to take to perfect an appeal.  38 C.F.R. § 20.202. 

With respect to a NOD, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a NOD.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.201.  While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002).  

"[T]he actual wording of the communication and the context in which it was written" must be considered in determining whether it constitutes an NOD.  Jarvis v. West, 12 Vet. App. 559, 561 (1999).  A broad NOD may confer appellate jurisdiction over all the issues adjudicated in a rating decision.  A "narrow or specific NOD," by comparison, may limit appellate jurisdiction to the issue specifically identified in the NOD.  See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000).  All communications should be liberally construed. See id. at 561-62.  The Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield" for claimants.  See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009).  See also Gallegos  v. Gober, 283 F.3d at 1309 (assuming that the Veteran desired appellate review, meeting the requirement of section 38 C.F.R. § 20.201 was not an onerous task).  

A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination.  38 C.F.R. § 20.302(a).  If a NOD is not filed within the one year time period, the RO decision becomes final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012).  An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal.  38 U.S.C.A. § 7105(c).   

The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 C.F.R. § 20.302(a). A NOD postmarked prior to expiration of the one year period will be accepted as having been timely filed.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.305(a).  In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA.  38 C.F.R. § 20.305(a) . 

The Board may implicitly or explicitly waive the issue of the timeliness of a Substantive Appeal.  A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived.  See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009).  The Board is bound by the law and is without authority to grant an appeal on an equitable basis.  See 38 USCA §§ 503,7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

Whether a NOD has been filed on time is an appealable issue.  If the claimant or his or her representative protests an adverse determination made by the RO with respect to timely filing of the NOD, the claimant will be furnished a SOC on the issue of whether the NOD was timely.  38 C.F.R. §§ 19.34, 20.101(c). 

If there is a failure to comply with the above-cited law and regulations governing appellate procedure, it is incumbent on the Board to reject the application for review on appeal.  See 38 U.S.C.A. §§ 7105(d)(5), 7108 (West 2002); see also Marsh v. West, 11 Vet. App. 468, 470-72 (1998) [the Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction].  

The RO issued an August 2002 rating decision that denied service connection for PTSD.  That same month notification was mailed to the Veteran at his address of record.  A copy of that notification is contained in the Veteran's claims folder.  The next correspondence received by VA was a November 2003 application for non-service-connected pension benefits.  The Veteran's formal application listed the same address as that utilized for the August 2002 notification of a denial of service connection for PTSD.  In November 2003, non-service-connected pension benefits were denied by the RO because the Veteran's reported income was in excess of the limits for this benefit.  The Veteran submitted a NOD with this denial.  The next correspondence received by VA was a November 2007 request for a copy of his claims folder.  

The Veteran contends that he was never notified of the decision and, in February 2008 submitted an NOD with the RO's August 2002 rating decision.  Pursuant to 38 C.F.R. § 3.109 (2012), time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of "good cause."  Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was.  There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109(b) leaves the decision to the sole discretion of VA.  Corry v. Derwinski, 3 Vet. App. 231, 235   (1992). 

The Veteran has not presented "good cause" as to why he did not file a NOD within one year.  There is a presumption of regularity of government process that can only be rebutted by clear evidence to the contrary.  Ashley v. Derwinski, 2 Vet. App. 62 1992).  VA need only mail notice to the last address of record for the presumption to attach.  Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  Notification for VA purposes is a written notice sent to the claimant's last address of record.  See 38 C.F.R. § 3.1(q).  Here, there is no clear evidence to rebut the presumption of notification in this case.  While the Veteran contends that he never received the August 2002 notification, he did receive a subsequent notification in November 2003 that was mailed to the same address and he continued to list that address as current in November 2003.  As such, there is no evidence of a change of address prior to the issuance of the August 2002 rating decision.  Therefore, there is no legal entitlement to an extension of time to file his NOD in this present case.  38 C.F.R. § 3.109(b); Corry, 3 Vet. App. at 235  . 

It is important to note that, the claims folder contains no communications from the Veteran or his representative dated within one year of the August 2002 rating decision, much less one that could reasonably be construed as a NOD.  See 38 C.F.R. § 20.201; Gallegos, 283 F.3d at 1309.  

In summary, the relevant facts are not in dispute and, therefore, it is the law rather than an interpretation of the evidence, which governs the outcome of this case.  The Veteran's NOD was untimely.  Accordingly, the issue of the timeliness of the Veteran's NOD must be denied for lack of legal merit.  See Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement);  accord Luallen v. Brown, 8 Vet. App. 92   (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995).  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cardiovascular disease, including hypertension and cancer to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) 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 (INACDUTRA) 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); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Id.  Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate.  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1).

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).   The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a).

The Veteran is claiming service connection for various disabilities, which he believes are the result of his service in the Persian Gulf during 1991.  Service connection may be established for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are competent to report objective signs of illness.  Id.

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).  

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

The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(d)(1).  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. §3.317(d)(2).  

The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F. 3d at 1377.  Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor.  See VAOPGCPREC 12-99.  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).  

A Disability Manifested by High Triglycerides and High Cholesterol

The Veteran asserts that service connection is warranted for high Triglycerides and high cholesterol.  Review of the record reveals that the Veteran has a history of hypercholesterolemia as well as hyperlipidemia and elevated triglycerides.  Hypercholesterolemia is defined as excess of cholesterol in the blood.  See Dorland's Illustrated Medical Dictionary 792 (28th ed. 1994).  Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, hypertriglycerides, etc."  Id. at 795.

While the evidence shows the Veteran has a history of elevated triglycerides and cholesterol, such findings are not recognized as a disability for VA benefits purposes.  See 38 U.S.C.A. §§ 101(16), 105(a); 38 C.F.R. § 3.303(c); see also 61 Fed. Reg. 20,440, 20,445  (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities).  

The term "disability," as used for VA purposes, refers to impairment of earning capacity and Congress specifically limits entitlement to service connection for diseases or injuries that have resulted in a disability.  See 38 U.S.C.A. § 1110; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  There is, however, no evidence showing that the Veteran's elevated triglycerides or high cholesterol have resulted in a disability.  

In sum, the Board concludes that high triglycerides and high cholesterol are merely laboratory findings, and not a "disability" for which VA compensation benefits may be awarded.  Accordingly, service connection is not warranted. 

A Disability Manifested by Chronic Obesity

In this case, the Veteran asserts that he currently has chronic obesity as a result of his active duty service.  After review of the record, the Board finds that the Veteran did not manifest chronic obesity during service.  Moreover, the Board finds that a disability manifested by chronic obesity is not a disability for which VA compensation are payable.

Review of the Veteran's STRs shows that during an examination in January 1991, at the time he entered his period of active duty, he stood 71 inches tall and weighed 230 pounds.  During his redeployment examination in May 1991 his height was listed as 71 inches and his weight as 222 pounds.  On reserve examination in February 1994, several years after the Veteran's period of active duty, his weight was down to 207 pounds.  

On examination by VA in September 2010, the Veteran stated that he had problems with weight gain that had begun in 1991 while he was deployed.  He stated that he had gained 40 pounds during his deployment.  He reported that he did not have an increase in intake of food and did not have a medical condition to explain the weight gain.  He said that he had lost some, but not all, of the weight that he had gained during his deployment.  The examiner reviewed the record and rendered a diagnosis of obesity, but stated that the Veteran had experienced most of his weight gain after 2004 and that the obesity was not of unknown etiology or part of a multisystem illness.  

It is further noted that obesity or being overweight, is a particularity of body type alone, and is not considered a disability for which service connection may be granted.  See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities does not contemplate a separate disability rating for obesity).  Rather, applicable VA regulations use the term "disability" to refer to the average impairment in earning capacity resulting from diseases or injuries encountered as a result of or incident to military service.  Allen 7 Vet. App. at 439; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); 38 C.F.R. § 4.1 (2012).  As noted above, there must be competent evidence of a current disability to support service connection, and particularities of body type, such as being overweight or underweight, do not of themselves constitute disease or disability.  In the case at hand, a disability manifested by chronic obesity is not shown by the evidence of record.  

Without a disability, there can be no entitlement to compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes) Brammer  v. Derwinski, 3 Vet. App. 223, 225   (1992).  As there is no medical evidence that the Veteran has a disability manifested by chronic obesity, and because obesity is not a disease or disability for which service connection may be granted, service connection for chronic obesity is not warranted.  

A Disability Manifested by Poor Blood Circulation

The Veteran contends that he has a disability manifested by poor blood circulation that is related to service.  After review of the record the Board finds that current pathology related to complaints of poor blood circulation are not currently demonstrated and that a disability manifested by poor blood circulation is not currently manifested to a compensable degree.  In this regard, it is noted that the Veteran's STRs do not show complaints or manifestations of a disability manifested  by poor blood circulation.  Post-service treatment records are similarly negative.  On general medical examination by VA in November 2011, examination showed no hemic or lymphatic condition.  The Veteran offered no testimony during the Board hearing in February 2013 related to this disability.   

Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The Veteran filed his claims for service connection in February 2008.  There has been no manifestation of a disability manifested by poor blood circulation demonstrated.  Significantly, during a September 2010 VA Persian Gulf Guidelines examination, the Veteran had no complaints related to a blood disorder.  As this disability has not been demonstrated in the record at any time since the Veteran filed his claim of service connection, the claim must be denied.   

A Disability Manifested By Dry Mouth

The Veteran contends that he has a disability manifested by dry mouth that is related to service.  After review of the record the Board finds that current pathology related to complaints of dry mouth are not currently demonstrated and that a disability manifested by dry mouth is not currently manifested to a compensable degree.  In this regard, it is noted that the Veteran's STRs do not show complaints or manifestations of a disability manifested  by dry mouth.  Post-service treatment records are similarly negative.  The Veteran offered no testimony during the Board hearing in February 2013 related to this disability.   

As with the claim of service connection for a disability manifested by poor blood circulation, a necessary element for establishing such a claim is the existence of a current disability.  See Degmetich, 104 F. 3d at 1328.  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain, 21 Vet. App. at 319.  The Veteran filed his claims for service connection in February 2008.  There has been no manifestation of a disability manifested by dry mouth demonstrated.  Significantly, during a September 2010 VA Persian Gulf Guidelines examination, the Veteran had no complaints related to a disability manifested by dry mouth.  As this disability has not been demonstrated in the record at any time since the Veteran filed his claim of service connection, the claim must be denied.   

Gulf War Syndrome

The Veteran has advanced contentions that he has a qualifying chronic disability under 38 C.F.R. § 3.317, which commonly known as Gulf War Syndrome.  At the February 2013 Board hearing before the undersigned, the Veteran stated that he believed he had chronic pain in the muscles of each of his legs as well as residuals of a TBI and a gastrointestinal disability resulting from service in the Gulf.  The Board has listed separate issues regarding TBI, an intestinal or bowel condition, and ankle and knee disabilities so those disabilities will not be addressed at this point of the decision.  

Regarding the claim of disability related to pain in the muscles of each of the legs, it is noted that noted that the Veteran's STRs do not show complaints or manifestations of such a disability while he was on active duty.  Private and VA treatment records are similarly negative for these complaints.  The Veteran was afforded a VA general medical examination in June 2010.  At that time, the Veteran had complaints of weakness and tenderness over both feet with osteoarthritis and other foot disability.  (It is noted that service connection has been awarded for left ankle arthritis and hallux valgus of each foot.)  On examination, there was no swelling, effusion, muscle atrophy, or fibrosis.  In September 2010, the Veteran was afforded a VA Persian Gulf War Guidelines examination.  At that time the Veteran had no muscle symptoms and no flare-ups of muscle disease.  No muscle abnormality of the lower extremities was noted.  

The record shows that the Veteran did not actually complain of a disability manifested by muscle pain in his legs until he gave his testimony before the undersigned at the Board hearing in February 2013.  The Board has weighed and considered the Veteran's recent testimony that he had muscle pain of the legs since service in 1991. But while he is competent to make such assertion of continuous symptoms, the Board does not find the Veteran's testimony regarding muscle pain in the legs in service in 1991 and continuously after service to be credible.  Such recent assertions for VA disability compensation purposes are inconsistent with the Veteran's previous correspondence and statements wherein he makes no mention of such a disability.  For example, VA psychiatric outpatient treatment in February 2008, the Veteran stated that he had "no significant symptoms from first gulf war."  Moreover, the absence of clinical treatment records for many years after active duty is probative evidence against continuity of symptoms since service.  See Mense v. Derwinski, 1 Vet. App. 354 (1991).  In addition to the lay statements and histories reported by the Veteran, the absence of a medical complaint of muscle pain of the legs for such a prolonged period is an additional factor that weighs against a finding that the Veteran's current complaints are related to service.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Finally, the Veteran demonstrates no abnormalities of the muscles of the lower extremities.  As such, the evidence does not demonstrate a disability of the lower extremity muscles that approximates limitation of function that warrants a 10 percent rating.  38 C.F.R. § 4.73, Diagnostic Codes 5310 through 5312.  For this reason, the Board finds that a disability manifested by lower extremity muscle abnormality is not manifested to a compensable degree, as required to meet the requirements of presumptive service connection under the provisions of 38 C.F.R. § 3.317.  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for Gulf War Syndrome, that has been further described as muscle pain of the lower extremities, to include as a qualifying chronic disability, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.   


A Disability Manifested by Polyps

The Veteran contends that he has polyps that are the result of service.  Review of the STRs shows no complaint or manifestation of this disability.  Postservice treatment records first reported polyps of the colon by history dating from October 2006 on a VA outpatient treatment record.  A colonoscopy was performed by VA in November 2007.  At that time all findings were normal, except for the cecum, which the examiner was not able to visual.  The Veteran offered no testimony during the Board hearing in February 2013 related to this disability.   

Although the Veteran believes that he has colonic polyps that are the result of his service in the Persian Gulf, it is noted that polyps are not among the chronic qualifying disabilities to which the provisions of 38 C.F.R. § 3.317 are applicable.  Polyps are protruding growths from a mucous membrane.  Dorland's Illustrated Medical Dictionary 1130 (28th ed. 1994).  They are not chronic disabilities resulting from undiagnosed illness.  As such, service connection on this basis is not warranted.  As polyps were not manifested during service or within one year thereafter, service connection is not warranted.  

Chronic Gastrointestinal Disorder

The Veteran contends that service connection is warranted for a chronic gastrointestinal disorder that he has claimed as an intestine or bowel condition.  During his hearing before the undersigned, he testified that he had diarrhea that he believed was a result of his service in the Persian Gulf.   

Review of the Veteran's STRs shows no complaints or manifestations of a chronic gastrointestinal disability.  On examination for service with a reserve unit in February 1994, clinical evaluation of the abdomen and viscera was normal.  VA outpatient treatment records show intermittent complaints of gastrointestinal disorders, but no manifestations of a chronic disability.  On general medical examination by VA in June 2010, examination of the abdomen showed no tenderness, distention, ascities, or abnormal masses.  During Persian Gulf Registry examination in September 2010, the Veteran denied having a history of nausea, vomiting, diarrhea, constipation, indigestion, heartburn, hemorrhoids, abdominal masses, abdominal swelling or regurgitation.  There was no reported history of hematemesis, melena, or abdominal pain.  Physical examination of the abdomen was normal.  On general medical examination by VA in November 2011, no abdominal or digestive condition was found.  

Finally, the Veteran demonstrates no chronic gastrointestinal abnormalities.  As such, the evidence does not demonstrate a disability of the gastrointestinal system that meets the criteria for a 10 percent rating.  See 38 C.F.R. § 4.114.  For this reason, the Board finds that a chronic gastrointestinal disability is not manifested to a compensable degree, as required to meet the requirements of presumptive service connection under the provisions of 38 C.F.R. § 3.317.  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a chronic gastrointestinal disability, to include as a qualifying chronic disability, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.   

A Bilateral Eye Disability

The Veteran contends that service connection is warranted for a bilateral eye disability.  He has pointed out that a reserve examination found his uncorrected near vision to be only 20/50 in the right eye and 20/30 in the left eye.  During the travel Board hearing before the undersigned in February 2013, the Veteran did not offer testimony regarding a claimed eye disorder.  

Review of the Veteran's STRs shows no complaint or manifestation of a disability of either eye.  Active duty examinations in 1970, periodic examinations in 1982 and 1986, and on redeployment examination in 1991 show either uncorrected distant visual acuity of 20/20 bilaterally, or vision that is corrected with refraction.  A reserve examination in 1994 shows near and distant uncorrected visual acuity of 20/20 bilaterally.  

On VA examination in March 2008, the Veteran's uncorrected distant visual acuity was noted to be 20/20 bilaterally.  Near vision was 20/30 in both eyes.  Examination was unremarkable, with the impressions being diabetic, without retinopathy, and presbyopia.  On VA general medical examination in June 2010 the pupils were equal, round, and reactive to light and accommodation.  The extraocular muscles were intact.  There was no icteric and visual fields were grossly normal.  The examiner was unable to see well on eye fundi examination.  On Gulf War Guidelines examination in September 2010, the Veteran complained of having decreased visual acuity in each eye, but no other eye symptoms.  Examination showed normal reaction of the pupils to light and accommodation, grossly normal visual fields, and no abnormality of the fundus, lids eyebrows or conjunctivae.  There was no diagnosis of an eye abnormality.  On general medical examination by VA in November 2011, no eye abnormality was found.  

While the record shows that the Veteran did have some decrease in visual acuity while on active duty, this has always been correctable with lenses.  In 2008, the diagnosis of presbyopia was made.  VA regulations provide that refractive error of the eyes are not diseases or injuries within in the meaning of applicable legislation for disability compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  Presbyopia is a visual condition that becomes apparent especially in middle age and in which loss of elasticity of the lens of the eye causes defective accommodation, and inability to focus sharply for near vision.  McNeely v. Principi, 3 Vet. App. 357, 364 (1992).  Presbyopia is "hyperopia and impairment of vision due to ... old age."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1349 (28th ed. 1994).  Given that this is the only diagnosed disability demonstrated in the record, there is no legal basis for the establishment of service connection and the claim must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

Chronic Respiratory Disorder

The Veteran contends that service connection is warranted for a chronic respiratory disorder, which he has also claimed as asthma.  He did not offer testimony regarding this disability during the February 2013 Board hearing before the undersigned.  He has made only general contentions regarding having a chronic respiratory disorder as a result of exposure to dust, chemicals and smoke from oil fires while in service in the Persian Gulf.  

Review of the Veteran's STRs shows no complaint or manifestation of a chronic respiratory disorder.  On periodic physical examination in February 1994, after the Veteran's deployment to the Persian Gulf, no lung abnormality was demonstrated.  (The only abnormality of the lungs or chest was shown to be gynomastia.)  

Post-service medical records do not demonstrate a chronic respiratory disorder.  On VA general medical examination in June 2010, the Veteran's chest was found to be normal to inspection, palpation, percussion, and auscultation; but with mild rhonchi and mild expiratory wheezing.  No diagnosis was made at that time.  On September 2010 VA Gulf War Guidelines examination, the Veteran reported no history of cough, wheezing, dyspnea, non-anginal chest pain, hemoptysis, cor pulmanale; or other chronic respiratory disorder including asthma, pulmonary embolism, bronchiectasis, or pleurisy.  Physical examination showed no evidence of abnormal breath sounds.  On general medical examination by VA in November 2011, no respiratory condition was found.  

After review of the evidence of record, the Board can find no basis for the establishment of service connection for a chronic respiratory disability, including asthma.  The weight of the evidence demonstrates no chronic symptoms respiratory disorder during service or continuous respiratory symptoms after service separation.  While mild rhonchi and wheezing were noted on VA examination in June 2010, there were no abnormal breath sounds demonstrated on examination three months later and no current evidence of a chronic respiratory disability.  Therefore, as there is no evidence of a chronic respiratory disorder at any time during the appeal period, the preponderance of the evidence is against direct service connection.  As no respiratory disorder due to an undiagnosed illness has been demonstrated to a degree of 10 percent, the claim is outside the purview of the undiagnosed illness presumptive provisions of 38 U.S.C.A. § 1117.  Under these circumstances, service connection for a chronic respiratory disability, including asthma, must be denied.  

Heart Disease

The Veteran contends that service connection should be established for heart disease.  He points out that bradycardia was noted on an electrocardiogram (EKG) study performed while he was on active duty.  He testified at the hearing before the undersigned that he had been receiving treatment for heart disease after this episode of bradycardia.  (It is noted that the Veteran has claimed service connection for hypertension, which will be separately addressed in this decision.)

Review of the Veteran's STRs shows that on EKG study in January 1991, sinus bradycardia, with an otherwise normal EKG was noted.  On redeployment examination in May 1991, the Veteran reported no heart trouble, palpitation, or pounding of the heart.  On examination for reserve duty in February 1994, clinical evaluation of the heart was normal.  

Private treatment records include a report of a myocardial perfusion imaging study, dated in April 2008. That was interpreted as normal.  On VA general medical examination in June 2010, cardiac examination found regular rhythm, with no murmur, gallop or friction rub.  The point of maximum intensity was within the midclavicular line.  There was no cardiomegaly or congestive heart failure.  No heart disability was diagnosed.  On Gulf War Guidelines examination in September 2010, the Veteran's history of abnormal EKG in 1991 was noted.  On medical history the Veteran denied any myocardial infarction, coronary artery disease, infectious heart disease, or any other type of heart disease.  Cardiac examination showed normal heart sounds with a regular rhythm.  Heart size was normal.  The examiner commented that the medical records showed that the Veteran had had one abnormal EKG noting premature contractions, with further evaluations being normal.  There was no objective evidence of heart disease in the record.  Therefore, it was considered less likely than not related to service.  

The threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought, specifically sinus tachycardia.  In the absence of proof of a present disability, there is no valid claim of service connection.  See Brammer, 3 Vet. App. at 223.  The Veteran was specifically advised that to establish service connection for a claimed disability, as a threshold requirement, he must show he actually has the disability.  

The Veteran's STRs include one EKG study showing bradycardia.  Subsequent evaluations showed normal sinus rhythm and on examination for reserve purposes in 1994 his cardiovascular system was normal.  Two VA examinations in 2010 show no cardiac abnormality, with no evidence of myocardial infarction, congestive heart failure, or cardiomegaly.  No diagnosis of a chronic heart abnormality was made.  The Board notes that although a Veteran in some circumstances is competent to offer a diagnosis, see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the determination of the presence of a non-observable cardiac condition such as tachycardia is a matter not amenable to lay diagnosis, particularly given that diagnostic studies are used in the process of identifying the disorder.

VA and private treatment records subsequent to service show no complaint or manifestation of bradycardia and the Veteran has not submitted, or identified for VA to secure, any competent (medical) evidence that he currently manifests bradycardia or a disability manifested by bradycardia during the pendency of his claim.  Consequently, the threshold requirement for substantiating a service connection claim as to this disability is not met.  There is no valid claim of service connection for a chronic heart disability.  Accordingly, the claim must be denied.  

Hypertension

The Veteran contends that service connection is warranted for hypertension.  He points out in correspondence and in testimony before the undersigned in February 2013, that he had elevated blood pressure readings demonstrated while he was on active duty in 1991.  

Hypertension is persistently high arterial blood pressure with suggested threshold levels starting at 140 mm/Hg systolic and 90 mm/Hg diastolic.  Dorland's Illustrated Medical Dictionary, 799 (27th ed. 1988).  Note (1) to Diagnostic Code 7101 recognizes the disability of hypertension when the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104 (2011). 

Review of the Veteran's STRs shows that the Veteran had elevated blood pressure readings during service in May 1991.  Additional readings later that month and in July 1991 were within normal limits.  On reserve examination in February 1994, blood pressure was recorded at 132/78.  VA outpatient treatment records show a diagnosis of hypertension dating from October 2006.  On VA general medical examination in June 2010, it was noted that the Veteran was taking medication for hypertension.  

The Veteran was afforded a Gulf War Guidelines examination in September 2010.  At that time, it was noted that the Veteran had reported elevated blood pressure noted while deployed.  His blood pressure had improved to baseline with no further treatment done.  On examination, it was noted that the Veteran had been treated for hypertension, with continuous medication required.  At that time, blood pressure readings were normal.  The examiner commented that the Veteran was not diagnosed with hypertension until 2006, which was most likely related to the Veteran's obesity.  Therefore, it was less likely than not that hypertension was related to service.  

As with heart disease, the Veteran's STRs show that he did have elevated blood pressure readings in service with subsequent evaluations showing normal readings.  On examination for reserve purposes in 1994 his blood pressure reading was normal.  VA outpatient treatment records show a confirmed diagnosis of hypertension beginning in 2006.  On VA examination in September 2010, the examiner stated that the most likely cause of hypertension was the Veteran's obesity.  As such, a relationship with service was unlikely.  

When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71.  In this case, the only medical opinion of record is to the effect that the Veteran's hypertension is the result of obesity and not related to service.  Moreover, the absence of clinical documentation of hypertension for many years after service is probative evidence against a service relationship.  See Mense v. Derwinski, 1 Vet. App. 354 (1991).  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Skin Cancer

The Veteran contends that service connection should be established for skin cancer.  He asserts in correspondence and in testimony before the undersigned in February 2013, that the skin cancer is the result of exposure to chemicals while serving in the Persian Gulf.  

After review of the record, the Board finds that skin cancer was not evident during service and has not been demonstrated at any time during the pendency of the appeal.  In this regard, it is noted that review of the Veteran's STRs shows no complaints or manifestation of cancer of the skin.  On examination for redeployment in May 1991, clinical evaluation of the skin was normal.  On reserve examination in February 1994, the only skin abnormality was a tinea lesion of the left calf.  (It is noted that service connection is currently in effect for a skin scar of the left leg, rated noncompensable.)  VA outpatient treatment records dated in July 2004 show that the Veteran was evaluated for a lesion of his upper arm and that skin cancer needed to be ruled out.  At that time, the Veteran denied any history of skin cancer or melanoma.  On examination by VA in June 2010, examination of the skin showed no abnormal pigmentation, petachiae or ecchymosis.  There were some hyperpigmented blotches seen, but no diagnosis of skin cancer.  

On examination by VA in September 2010, the Veteran was noted to have a skin disorder, diagnosed as lentigines.  At that time, the examiner commented that the lentigtines, also described as benign lesions, were not documented during service.  On general medical examination by VA in November 2011, no skin condition was found.  

The Board notes that the Veteran did not have continuous symptoms of a skin disorder, including lentigines  since service separation and that there is no lay or medical statement or opinion of record that the currently diagnosed lentigines is related to service.  For this reason, the preponderance of the evidence is against direct service connection.  As the skin disorder are attributed to a known clinical diagnosis, rather than to an undiagnosed illness, the claim is outside the purview of the undiagnosed illness presumptive provisions of 38 U.S.C.A. § 1117.  Under these circumstances, service connection for a chronic skin disorder, including skin cancer, must be denied.  

Varicose Veins

The Veteran contends that service connection should be established for varicose veins of each lower extremity.  He has made no specific contentions regarding this disability and did not offer testimony regarding varicose veins at the time of his hearing before the undersigned in February 2013.  

After review of the record, the Board finds that varicose veins were not evident during service or until many years thereafter and are not shown to have been caused by any in-service event.  In this regard, it is noted that review of the Veteran's STRs shows no complaint or manifestation of varicose veins.  On redeployment examination in May 1991 and on reserve examination in February 1994, clinical evaluation of the vascular system, which included varicosity examination, was normal.  Varicose veins are first noted in VA outpatient treatment records dated in 2001, many years after the Veteran's discharge from active duty.  There is no lay or medical statement or opinion of record that any the currently diagnosed varicose veins are related to service,  For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for varicose veins, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Sleep Apnea

The Veteran contends that service connection should be established for sleep apnea.  He has made no specific contentions regarding this disability and did not offer testimony regarding sleep apnea  at the time of his hearing before the undersigned in February 2013.  

After review of the record, the Board finds that sleep apnea was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event.  In this regard, it is noted that review of the Veteran's STRs shows no complaint or manifestation of sleep apnea.  On redeployment examination in May 1991 and on reserve examination in February 1994, there was no mention of this disability.  VA outpatient treatment records include a September 2008 report that recommended that the Veteran be assessed for obstructive sleep apnea, given his  report of snoring and increased risk for the disability secondary to obesity.  Medical records do not include a definitive diagnosis of sleep apnea.  

On general medical examination by VA in November 2011, no respiratory condition, including sleep apnea, was found.  

There is no lay or medical statement or opinion of record that the Veteran currently has sleep apnea let alone that a sleep disorder is related to the Veteran's periods of active duty.  For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

TBI

The Veteran is seeking service connection for residuals of a TBI that he claims to have sustained while in service.  In correspondence and during testimony before the undersigned in February 2013, the Veteran stated that he was in his vehicle when a Scud missile exploded nearby.  He stated that he was thrown upward, striking his head on the roof of the vehicle.  This occurred on February 25, 1991.  He related that he has had continuous symptoms such as headaches and difficulty with concentration since this incident so that service connection should be awarded.  

Review of the record shows that the presence of the Veteran's unit in Dhahran, Saudi Arabia at the time of a Scud missile attack on February 25, 1991.  A statement has been received from a fellow serviceman who confirmed the Veteran's presence at the time of the incident and confirming the Veteran's statements that he helped in the recovery operations following that attack.  The July 2009 rating decision giving rise, in part, to this appeal acknowledged the Veteran's presence in close proximity to the exploding missile.  

Review of the Veteran's post-service treatment records indicate the presence of residuals of a TBI.  For example, VA outpatient treatment records dated in September 2008 include a diagnosis of cognitive disorder, not otherwise specified (NOS).  In a March 2009 statement, a VA social worker reported that, during the course of treatment, the Veteran reported having been approximately one mile from a Scud missile attack while in service.  In an April 2009 private treatment record, the Veteran's neurologist noted that the Veteran was seen for complaints of forgetfulness, with history of war exposure.  At that time, it was noted that the Veteran was probably more forgetful than would be considered appropriate for age or education related disorder.  Neurologic evaluation showed minimal focality referable to left frontal lobe dysfunction.  The deficits were believed to be more referable to post traumatic stress disorder (PTSD) than TBI, but were probably a component of both.  

In July and September 2009 evaluation reports, a private physician evaluated the Veteran for memory loss.  The Veteran related that the memory loss began in 1991.  The Veteran referred to the explosion of a Scud missile less than one mile away while stationed in the Persian Gulf at that time.  The examiner noted a 2001 CT scan study, (a copy of which is of record) that showed left frontal orbital deficits.  After examination and review of the medical records, the impression was post traumatic memory impairment.  

Two additional private evaluations, with waiver of RO consideration, have been submitted in support of the Veteran's claim of service connection for residuals of TBI.  The first, dated in March 2012 assessed the Veteran as having chronic traumatic encephalopathy from a blast injury during the Gulf War in 1991.  In an August 2012 statement, two private medical care providers related that they had reviewed the Veteran's medical records and found that the results of an MRI study and neurological/neuropsychological testing showed that the Veteran suffered from TBI that was related to the Gulf War.  They stated that the findings were consistent with a brain hemorrhage resulting from the Veteran's history of having hit his head on the roof of a Humvee after a nearby Scud missile explosion.  

The Board recognizes the credible testimony given by the Veteran at the February 2013 Board hearing regarding the head injury he sustained while in service.  There are several medical opinions, both private and VA, in the record that he may have residuals of a TBI that resulted from this head injury.  The Veteran's private doctors have fully endorsed the concept that the Veteran has residuals of the TBI and the Veteran has given credible testimony regarding the continuous symptoms that he has had since his discharge from active duty.  After review of the entire evidence of record, including the STRs, positive medical opinions, and the Veteran's testimony, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has residuals of an in-service TBI, and service connection for residuals of TBI is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


Rating Laws and Regulations 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2010).  

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010).  

In this case, the Board has considered the entire period of initial rating claims from the effective date of service connection to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  

Bilateral Hearing Loss

Service connection for bilateral hearing loss was granted by the RO in a September 2009 rating decision.  The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 6100 from the date of claim in February 2008.  

For evaluation of hearing impairment, examinations are conducted using the controlled speech discrimination test together with the results of pure tone audiometry testing.  A numeric designation of impaired efficiency is then assigned based upon the results of these tests and a percentage evaluation is reached by correlating the results for each ear.  38 C.F.R. § 4.85 and Tables VI, VIa, and VII.

When the puretone threshold at each of the four specified frequencies is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table Via, whichever results in the higher numeral.  Each ear will be evaluated separately.  When the puretone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment form either Table VI or Table Via, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

An audiometric evaluation was conducted for compensation purposes for the VA in DDATE.  At that time, the veteran's organic hearing acuity shown to be as follows:

Hertz
1000
2000
3000
4000
Right ear
20
15
45
45
Left ear
20
50
50
55

Thus, his acuity was manifested by average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 31.25 decibels in the right ear and 43.75 decibels in the left ear.  Speech recognition ability 98 percent correct in the right ear and 100 percent correct in the left ear.  

The assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann  v. Principi, 3 Vet. App. 345 (1992).  In the instant case, the application of the rating schedule to the pertinent facts demonstrates that a compensable evaluation is not warranted for a bilateral hearing loss. 

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In this regard, the examiner who conducted the August 2009 audiologist submitted a December 2009 addendum.  The examiner stated that, without the use of amplifications anticipated communication difficulties only in listening situations.  The examiner noted, however, that with the use of amplification and preferential seating, the Veteran was capable of both physical and sedentary employment.  In other words, the examiner stated that the Veteran's hearing loss did not interfere with his ability to work.  

The Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted.  Specifically, the Court noted that, "[u]nlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[- ]schedular rating is warranted.  The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak, 21 Vet. App. at 455.  

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  Thun v. Peake, 22 Vet. App 111, 115-16 (2008).  

In this Veteran's case, the Board recognizes and has considered the complaints of difficulty in understanding a speaker, which is associated with the service- connected hearing loss.  The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation.  For these reasons, the Board finds that the schedular rating criteria in this case is adequate to rate the Veteran's bilateral hearing loss.  In the absence of evidence that the schedular rating criteria is inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  In sum, there is no indication in the record that the average industrial impairment from the hearing loss disability would be in excess of that contemplated by the assigned schedular rating.  For these reasons, referral for an extra-schedular rating is not warranted.

Hallux Valgus of the Right Foot

Service connection for hallux valgus of the right foot was granted by the RO in a September 2009 rating decision.  While a noncompensable (0 percent) initial disability rating was initially awarded, by rating decision in October 2009, a 10 percent rating was granted under the provisions of Code 5280 from the effective date of the award of service connection in February 2008.  

Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.  

Diagnostic Code 5277 provides ratings for bilateral weak foot.  For symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness, the underlying condition is to be rated, with a minimum rating of 10 percent.  38 C.F.R. § 4.71a. 

Diagnostic Code 5280 provides ratings for unilateral hallux valgus.  Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling.  Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5281 provides that unilateral severe hallux rigidus is to be rated as severe hallux valgus.  A Note to Diagnostic Code 5281 provides that the rating for hallux rigidus is not to be combined with claw foot ratings.  Diagnostic Code 5280 provides that severe unilateral hallux valgus, if equivalent to amputation of great toe, is to be rated 10 percent disabling.  38 C.F.R. § 4.71a. 

Diagnostic Code 5282 provides ratings based on hammer toes.  Hammer toe of a single toe is rated noncompensable (0 percent) disabling.  Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling.  38 C.F.R. § 4.71a. 

Diagnostic Code 5283 provides ratings based on malunion or nonunion of tarsal or metatarsal bones.  Moderate malunion or nonunion of tarsal or metatarsal bones is rated 10 percent disabling; moderately severe malunion or nonunion of tarsal or metatarsal bones is rated 20 percent disabling; and severe malunion or nonunion of tarsal or metatarsal bones is rated 30 percent disabling.  A Note to Diagnostic Code 5283 provides that malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot is rated 40 percent disabling.  38 C.F.R. § 4.71a. 

Diagnostic Code 5284 provides ratings for residuals of other foot injuries.  Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling.  A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling.  38 C.F.R. § 4.71a.

Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Also with any form of arthritis, painful motion is a factor to be considered.  38 C.F.R. § 4.59.  

A podiatry examination was conducted by VA in September 2009.  At that time, the Veteran's history of foot disabilities, primarily bunion deformities of each foot, was reported.  It was noted that the Veteran had undergone a bunionectomy of the right foot with screw fixation in February 2002.  Since that procedure, the Veteran had had reduced pain in the right foot so that the surgery did help.  Subjective complaints of aching pain were noted.  He related tenderness at times with painful motion of the right great toe.  With respect to functional limitation on walking one block or standing 20 minutes.  He stated that he did not take any medications for bunion pain.  On physical examination, the Veteran had no edema of the ankle or foot bilaterally.  The right first metatarsal phalangeal joint range of motion was approximately 40 degrees dorsiflexion.  There was pain on endpoint of dorsiflexion.  There was hallux valgus bilaterally, more severe on the left than the right.  Callus formation of submetatarsal 2 through 4 on the left was noted.  There was a second digit hammertoe deformity on the left.  X-ray studies of the right foot displayed post-surgical changes with screw fixation at the first metatarsal head area with a 2.7 cortical screw.  There was no acute fracture, but some hallux valgus observed.  There was second digit hammertoe deformity observed on X-ray studies in the PJP and IPJ bilaterally.  There was low calcaneal inclination bilaterally and narrowing of the subtalar joint observed bilaterally.  The diagnosis was bilateral hallux valgus.  

On general medical examination by VA in November 2011, it was noted that the Veteran had had hallux valgus since 1991.  There was no evidence of Morton's neuroma, or hammer toes.  The Veteran had mild or moderate symptoms of hallux valgus bilaterally, with a history of metatarsal osteotomy head, equivalent to metatarsal head resection of the right foot in 2002.  There was no evidence of hallux rigidus, pes cavus, malunion, or nonunion of the tarsal or metatarsal bones and no evidence of other foot injury.  It was noted that pain from the Veteran's foot disability impeded his mobility and that the bilateral hallux valgus condition precluded him from physical employment, but not from sedentary employment.  

An undated VA X-ray study, associated with the claims file in February 2012, shows that the Veteran has moderate degenerative joint disease of the first metatarsalphalangeal joint associated with moderate hallux deformity.  

The Veteran contends that his right foot hallux valgus is more disabling than currently evaluated.  The record shows that he previously underwent surgery that was equivalent to resection of the metatarsal head in 2002.  Therefore, the 10 percent rating initially awarded is warranted.  The record does not show manifestations of foot disability that warrant a rating in excess of 10 percent, as there is no evidence of malunion or nonunion of any of the tarsals or metatarsal and no evidence of other foot injury or disability.  As the examinations of record show no evidence of other foot disability, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a higher initial rating for hallux valgus of the right foot, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

Hallux Valgus of the Left Foot

Regarding the disability associated with hallux valgus of the left foot, it is noted that service connection for hallux valgus of the left foot was granted by the RO in a September 2009 rating decision.  A noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 5280 from the effective date of the award of service connection in February 2008.  

A podiatry examination was conducted by VA in September 2009.  At that time, the Veteran's history of foot disabilities, primarily bunion deformities of each foot, was reported.  Subjective complaints of aching pain were reported.  He stated that he had used orthotics that had helped in the past.  With respect to functional limitation on walking one block or standing 20 minutes.  He stated that he did not take any medications for bunion pain.  On physical examination, the Veteran had no edema of the ankle or foot bilaterally.  The left first metatarsal phalangeal joint range of motion was approximately 35 degrees dorsiflexion.  There was pain on endpoint of dorsiflexion.  There was hallux valgus bilaterally, more severe on the left than the right.  Callus formation of submetatarsal 2 through 4 on the left was noted.  There was a second digit hammertoe deformity on the left.  There was no acute fracture, but some hallux valgus observed.  There was second digit hammertoe deformity observed on X-ray studies in the PJP and IPJ bilaterally.  Increased metatarsal angle of the left foot indicative of hallux valgus with lateral deviation of the hallux.  There was low calcaneal inclination bilaterally and narrowing of the subtalar joint observed bilaterally.  The diagnosis was bilateral hallux valgus.  

On general medical examination by VA in November 2011, it was noted that the Veteran had had hallux valgus since 1991.  There was no evidence of Morton's neuroma, or hammer toes.  The Veteran had mild or moderate symptoms of hallux valgus bilaterally, with a history of metatarsal osteotomy head, equivalent to metatarsal head resection of the right foot in 2002.  There was no evidence of hallux rigidus, pes cavus, malunion, or nonunion of the tarsal or metatarsal bones and no evidence of other foot injury.  It was noted that pain from the Veteran's foot disability impeded his mobility and that the bilateral hallux valgus condition precluded him from physical employment, but not from sedentary employment.  

The Veteran contends that his left foot hallux valgus is more disabling than currently evaluated.  Unlike the right foot, there is no history of surgery involving the left.  Review of the records fails to disclose a basis for a compensable rating on the left.  The record does not show manifestations of foot disability that warrant a 10 percent rating, as there is no evidence of malunion or nonunion of any of the tarsals or metatarsal and no evidence of other foot injury or disability.  As the examinations of record show no evidence of other foot disability, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a higher initial rating for hallux valgus of the left foot, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

Extraschedular evaluation

The Board also has considered whether referral for extraschedular consideration is warranted.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

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

In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule.  The Veteran's right foot hallux valgus is rated on the basis of the surgical procedure that was performed in 2002, with no additional manifestations of disability.  The Veteran did not have surgery involving the  left foot and no additional manifestations of disability are demonstrated on examination.  In each case, the examination reports do not detail functional impairment of either foot.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca.  The Veteran's foot impairment is specifically contemplated in the schedular rating criteria.  For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's foot disabilities, and no referral for an extraschedular rating is required.  

Finally, the matter of entitlement to a TDIU is addressed in the remand portion of this decision so there is no need for discussion of this aspect at this point.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  


ORDER

As the Veteran did not file a timely NOD with an April 2003 rating decision that awarded service connection for right and left tibia stress fractures, the appeal is denied. 

Service connection for a disability manifested by high triglycerides and high cholesterol is denied.  

Service connection for a disability manifested by chronic obesity is denied.  

Service connection for a disability manifested by poor blood circulation is denied.  

Service connection for a disability manifested by dry mouth is denied.  

Service connection for Gulf War Syndrome as a qualifying chronic disability under 38 C.F.R. § 3.317 is denied.  

Service connection for a disability manifested by polyps is denied.  

Service connection for a chronic gastrointestinal disability is denied.  

Service connection for a bilateral eye disorder is denied.  

Service connection for a chronic respiratory disorder, including asthma, is denied.  

Service connection for chronic heart disease is denied.  

Service connection for hypertension is denied.  

Service connection for a chronic skin disorder, including skin cancer, is denied.  

Service connection for varicose veins is denied.  

Service connection for sleep apnea is denied.  

Service connection for residuals of a TBI is granted.  

An initial compensable rating for bilateral hearing loss is denied.  

An initial rating in excess of 10 percent for hallux valgus of the right foot is denied.  

An initial compensable rating for hallux valgus of the left foot is denied.  


REMAND

There are several issues remaining for appellate consideration.  Of these, the contentions relating to the matter relating to service connection for a disability manifested by lack of balance and eye hand coordination are to the effect that this disability is related to residuals of TBI.  As service connection is now in effect for residuals of TBI, the possibility of secondary service connection must be addressed.  The Veteran is also claiming TDIU and SMC as a result of the need for A&A, issues which are inextricably intertwined with the rating for residuals of TBI that has yet to be assigned by the RO.  As such, in light of the grant of service connection for the residuals of TBI, these matters must be returned for additional consideration.  

Regarding the issues of service connection for bilateral knee disability and right knee disability, the Board notes that the Veteran has testified that he sustained an injury of his knees and right ankle in the 1985 accident in which he injured his left ankle.  Service connection is in effect for the left ankle injury so it is plausible that the knees and right ankle, which treatment records note were evaluated at the time of the injury, could have been injured as well.  The Veteran has not been afforded a VA examination to ascertain whether a relationship exists between the injury and any current bilateral knee disability.  While he was evaluated for possible relationship between a right ankle disability and service, it is noted that the negative nexus opinion rendered on that September 2009 examination was based on a rationale that there was no record of right ankle injury while the Veteran was in military service.  Given the Veteran's testimony regarding the incurrence of an injury of the knees and right ankle in 1985, it is found that the low threshold regarding the need for a VA examination has been met.  See Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.)  As such, an examination of the Veteran's knees and right ankle is warranted.  

Regarding the Veteran's claim for an increased rating for his service-connected left ankle disability, it is noted that in correspondence received in February 2012 and in testimony at the Board hearing in February 2013, the Veteran stated that his left ankle disorder had significantly worsened since his most recent VA examination in November 2011.  As such, an additional examination is found to be necessary.  

The Veteran is also claiming service connection for a dental disability.  The appeal comes from a rating decision of the RO, which is part of the Veteran's Benefits Administration (VBA).  During the pendency of this appeal, the regulations applicable to service connection for dental disabilities were revised.  Effective February 29, 2012, the regulations provide that the VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration (VHA) has made a determination regarding basic eligibility under the requirements of 38 C.F.R. §  17.161.  38 C.F.R. § 3.381(a) (2012).  

To date, there has been no eligibility determination made by VHA regarding dental treatment, rather, in March 2009, VHA requested that a determination be made by the RO.  Where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the Veteran applies.  Karnas v. Derwinski, 1 Vet. App. 308 (1991).  In order to afford the Veteran due process, the issue must be returned for proper consideration by VHA.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should arrange for the Veteran to undergo medical examinations to ascertain the current nature and etiology of his bilateral knee, right ankle, and disability manifested by lack of balance and lack of eye to hand coordination.  The examiners should be requested to render an opinion regarding the following:

a.  Is it at least as likely as not (probability 50 percent or more) that a disability of either knee is related to service, including the Veteran's statements of incurrence of a knee injury while on ACDUTRA in 1985?  

b.  Is it at least as likely as not (probability 50 percent or more) that a disability of the right ankle is related to service, including the Veteran's statements of incurrence of a knee injury while on ACDUTRA in 1985?  

c.  Is it at least as likely as not (probability 50 percent or more) that a disability manifested by lack of balance or lack of eye to hand coordination is related to service or caused or aggravated (increased in severity by beyond natural progression) by service connected residuals of TBI?  

The claims folder should be made available for review in connection with these examinations.  The examiners should provide complete rationale for all conclusions reached.  

2.  The Veteran should be scheduled for VA orthopedic examination to determine the current extent of his service-connected left ankle disability.  X-rays and/or other diagnostic studies should be done, as deemed appropriate by the examiner.  The examiner must provide a thorough description of the appellant's service-connected disorder and render objective clinical findings concerning the severity of the disability, to include observations of pain on motion, deformity, excess fatigability, incoordination, weakened movement and other functional limitations, if any.  The examiner must then render an opinion concerning the effect of the appellant's service-connected disability on his ordinary activity and his ability to procure and maintain employment.  The claims folder should be made available for review in connection with these examinations.  The examiners should provide complete rationale for all conclusions reached.  

3.  In accordance with the amended regulations of C.F.R. § 3.381, effective February 29, 2012, the Veteran's claim of entitlement to service connection for a dental condition should be sent to VHA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161.  

4.  Thereafter, the RO/AMC should readjudicate the issues on appeal.  If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include consideration of TDIU and SMC on account of the need for A&A.  The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.

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).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012).  

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).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs