Citation Nr: 1324339	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  06-15 570	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a gastrointestinal disorder.  

2.  Whether new and material evidence has been received to reopen a claim of service connection for a sleep disorder.  

3.  Whether new and material evidence has been received to reopen a claim of service connection for a low back disability.  

4.  Entitlement to service connection for hemorrhoids.  

5.  Entitlement to service connection for a urinary disorder, claimed as prostatitis, to include as due to an undiagnosed illness.  

6.  Entitlement to service connection for a disability manifested by nose bleeds, claimed as due to undiagnosed illness.  

7.  Entitlement to service connection for a disability manifested by waist pain, claimed as due to an undiagnosed illness.  

8.  Entitlement to service connection for headaches, claimed as due to undiagnosed illness.  

9.  Entitlement to service connection for a neurological disability, including bilateral hand tremors, claimed as due to undiagnosed illness.  

10  Entitlement to a disability rating greater than 20 percent for cervical strain.  

11.  Entitlement to a disability rating greater than 10 percent prior to June 1, 2007, greater than 20 percent prior to June 21, 2010, and greater than 40 percent from June 21, 2010, for hypertension.  

12.  Entitlement to a disability rating greater than 10 percent for status post laceration scar of the left index finger.  

13.  Entitlement to an initial rating greater than 10 percent for anterior dislocation of the left sternoclavicular joint.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel



INTRODUCTION

The Veteran had active service from January 1995 to January 1998.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision by the RO which assigned a higher 20 percent rating for cervical strain and denied the remaining benefits sought on appeal.  By rating actions in June 2011 and May 2012, the RO granted an increased rating for hypertension, to 20 percent from June 1, 2007, and to 40 percent from June 21, 2010, respectively.  

Although the RO initially adjudicated the claims for hand tremors and a neurological disorder as separate issues, the Veteran described his disability as "shaky hands, body."  See Veteran's July 2002 statement.  As the underlying basis for both claims is a neurological disorder claimed as due to undiagnosed illness, the claims have been restated as a single issue to avoid redundancy.  

Finally, the issues currently on appeal were remanded by the Board in May 2010 for additional development of the record.  The remand directives included providing the Veteran with appropriate VCAA notice pertaining to a reopened claim under Kent, 20 Vet. App. 1 (2006), obtaining VA examinations for his service-connected disabilities and, if appropriate, for any diagnosed disability.  The AMC provided the Veteran with appropriate VCAA notice under Kent, in May 2010, and the Veteran was afforded multiple VA examinations.  In light of the foregoing, the Board finds that, with respect to the issues addressed in this decision, the AMC has substantially complied with the May 2010 remand orders and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Historically, the Board notes that service connection for lumbar strain and gastritis was denied by the RO in August 1998, and for a sleep disorder by rating action in December 1998.  The Veteran was notified of these decisions and did not appeal.  By rating action in March 2001, the RO declined to reopen the Veteran's claim for a low back disability, and he did not perfect an appeal to the rating decision.

Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record.  While the Veteran reported that he had to quit working as a guard at a correctional facility due to hand tremors, he does not claim, nor does the current medical evidence of record show, that he is precluded from working due solely to his service-connected disabilities.  The Veteran's hypertension, cervical spine, left index finger and left sternoclavicular joint disabilities do not cause any actual or functional impairment.  These disabilities also are not shown to be of such severity as to preclude substantially gainful employment.  Accordingly, the Board finds that consideration of a TDIU is not warranted.

The issues of service connection for a gastrointestinal disorder, sleep disorder, waist pain and a neurological disorder, manifested by hand tremors and body shakes, claimed as due to undiagnosed illness are addressed in the REMAND portion of the decision below and are REMANDED again to the RO/AMC in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  Service connection for gastritis and a sleep disorder was finally denied by unappealed rating decisions by the RO in August 1998 and December 1998, respectively.  

2.  The additional evidence received since the August and December 1998 rating decisions concerning a gastrointestinal disorder and sleep disorder relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating them.  

3.  Service connection for a low back disability was last finally denied by an unappealed rating decision by the RO in March 2001.  

4.  The evidence received since the March 2001 RO decision is redundant of evidence previously considered and does not raise a reasonable possibility of substantiating the claim of service connection for a low back disability.  

5.  The Veteran was not shown to have a headache disorder, nose bleeds or any urinary or rectal problems, including prostatitis and hemorrhoids, in service, and there is no competent, credible evidence that any claimed disability was manifested in or is otherwise related to service, including as due to undiagnosed illness.  

6.  The Veteran's cervical strain is manifested by pain and limitation of motion with forward flexion to 30 degrees and no associated neurological symptomatology; there is no functional loss of use due to pain or during flare-ups commensurate with the criteria for a higher rating.  

7.  Prior to June 21, 2010, the Veteran was not shown to have a diastolic pressure predominantly 110 or more or a systolic pressure predominantly 200 or more.

8.  Since June 21, 2010, the Veteran has not been shown to have a diastolic pressure predominantly greater than 120.  

9.  The Veteran's left index finger laceration scar is manifested by a superficial, well-healed, stable, .01 by 1.5-cm scar on the distal, palmar side which is not tender, poorly nourished or adherent, and does not cause any functional limitation.  

10.  The Veteran's left sternoclavicular joint disability is manifested principally by pain and a history of dislocations, without limitation of motion or weakness in the left upper extremity and no demonstrable functional impairment due to pain, incoordination, fatigability, repetitive use or during flare-ups.  


CONCLUSIONS OF LAW

1.  The August 1998 and December 1998 RO decisions which denied service connection for gastritis and a sleep disorder, respectively, are final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012).  

2.  New and material evidence has been received to reopen the claim of service connection for a gastrointestinal disorder.  38 U.S.C.A. §§ 1110, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 3.303, 20.1105 (2012).  

3.  New and material evidence has been received to reopen the claim of service connection for a sleep disorder.  38 U.S.C.A. §§ 1110, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 3.303, 20.1105 (2012).  

4.  The March 2001 RO decision that last denied service connection for a low back disability is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012).  

5.  New and material evidence has not been received to reopen the claim of service connection for a low back disability.  38 U.S.C.A. §§ 1110, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159, 3.303, 20.1105 (2012).  

6.  The Veteran does not have hemorrhoids due to disease or injury which was incurred in or aggravated by service, nor may hemorrhoids be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1117, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2012).  

7.  The Veteran does not have a urinary disorder, including prostatitis, due to disease or injury which was incurred in or aggravated by service, nor may any claimed prostatitis be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1117, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2012).  

8.  The Veteran does not have a disability manifested by nose bleeds due to disease or injury which was incurred in or aggravated by service, nor may any such claimed disability be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1117, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2012).  

9.  The Veteran does not have a headache disorder due to disease or injury which was incurred in or aggravated by service, nor may any current headache disorder be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1117, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2012).  

10.  The criteria for a disability rating greater than 20 percent for cervical strain have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes (DCs) 5293 (prior to September 26, 2003) and 5237 (effective September 26, 2003).  

11.  The criteria for a disability rating greater than 10 percent prior to June 1, 2007, greater than 20 percent prior to June 21, 2010, and greater than 40 percent from June 21, 2010, for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Part 4, including DC 7101 (2012).  

12.  The criteria for a disability rating greater than 10 percent for status post laceration scar of the left index finger have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.118, Part 4, including DC 7804 (2012).  

13.  The criteria for an initial rating greater than 10 percent for anterior dislocation of the left sternoclavicular joints have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.73, Part 4, including Diagnostic Codes 5299-5203 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. § 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  

The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in November 2002, March and May 2003, and May 2010.  Although the proper notification letter was not sent prior to adjudication of the Veteran's claims to reopen in July 2003, this was not prejudicial to him as he subsequently was provided proper notice (May 2010), the claims were readjudicated, and a supplement statement of the case (SSOC) was promulgated in May 2012.  Thus, the Board finds that the notification requirements of the VCAA have been satisfied.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006).  

Furthermore, based on the communications sent to the Veteran and his representatives over the course of this appeal, he has shown actual knowledge of the evidence that he is required to submit in this case.  Based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail on his claims.  

As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records (STRs) and all VA and available private medical records have been obtained and associated with the claims file.  The Board also has reviewed the Veteran's Virtual VA records.  Neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the merits of the issues on appeal.  They also have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the currently appealed claims is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

Finality

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Before reaching the merits of the Veteran's claims for a gastrointestinal disorder, sleep disorder and a low back disability, however, the Board first must rule on the matter of reopening of the claims.  That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claims to be reopened.  Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001).  

As noted above, service connection for gastritis and a sleep disorder was finally denied by the RO in August and December 1998, respectively, and for a low back disability in March 2001, and there was no appeal perfected of these rating decisions.  Therefore, the laws and regulations governing finality and reopening of a previously disallowed claim are pertinent in considering these currently appealed claims.  

A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision.  A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012).  The Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  

The Veteran's request to reopen his claims for service connection was received in July 2002.  The regulation applicable to his appeal defines new and material evidence as evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (2012).  

The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim, as in this case dealing with a claim for service connection.  It is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative, however.  Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  

An adjudicator must follow a two-step process in evaluating previously denied claims.  First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material.  If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits.  Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled.  See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328  (1999).

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

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  In this regard, the Board notes that no additional evidence pertaining to a gastrointestinal disorder, sleep disorder, or low back disability was received from the Veteran during the one year period following the August and December 1998, and March 2001 rating decisions, respectively.  

Gastritis & Sleep Disorder

The Veteran contends that he has had chronic gastrointestinal symptoms and sleep problems ever since service.  In this regard, the Veteran's statements are presumed credible for the limited purpose of reopening the previously disallowed claims.  Justus v. Principi, 3 Vet. App. 510 (1992).  

Concerning the claim for a gastrointestinal disorder, the Veteran's claim was finally denied by the RO in August 1998 on the basis that while he was treated for gastric symptoms, including sour stomach, bloating, acid taste in his mouth and symptoms of esophageal reflux on several occasions in service.  He also was not shown to have a diagnosed gastrointestinal disorder in service or when examined by VA in May 1998.  

The evidence added to the record since the August 1998 rating decision shows that the Veteran was diagnosed as having GERD by VA on at least two occasions in May 2004 and in July 2008 since his discharge from service.  

Similarly, while the Veteran was seen for problems sleeping on a few occasions in service, service connection for a sleep disorder was denied by the RO in December 1998 on the basis that there was no clinical or diagnostic evidence that he had a definitive sleep disorder at that time.  

The evidence added to the record since the December 1998 rating decision includes a VA sleep study that showed the Veteran was diagnosed as having sleep apnea by VA in December 2007.  

The medical reports attributing the Veteran's current gastrointestinal symptoms and sleep disturbance to specific diagnosed disorders of GERD and sleep apnea are new, in that a definitive diagnosis had not been rendered previously by a competent healthcare provider.  This evidence also is material since it relates to unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims.  See Shade, 24 Vet. App. at 110.  As the Board finds that the additional VA medical records are new and material, there is no need to discuss whether the other evidence also is new and material as the claims for a gastrointestinal disorder and sleep disorder will be reopened solely on the basis of this evidence.  

Having determined that the Veteran's claims for a gastrointestinal disorder and sleep disorder are reopened, the Board must next determine if it will be prejudicial to him to address the merits of these claims.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this regard, the Board notes that, while the Veteran has been diagnosed with GERD and sleep apnea, it is not clear from the current evidence of record whether the diagnosed disorders are related to service.  That is, there is no competent medical evidence of record relating any current disability to service.  Therefore, further development of the evidence is necessary as is discussed in the Remand section of this decision below.  Id.  

Low Back Disability

The Veteran's claim for a low back disability initially was denied by the RO in August 1998 on the basis that there was no evidence of any complaints, treatment, injury, abnormalities or diagnosis for any low back problems in service, including at the time of his separation examination in December 1997.  There also was no diagnostic evidence of arthritis within one year of the Veteran's discharge from service.  Although the diagnosis on a May 1998 VA examination included mild symptomatic lumbosacral strain, there was no competent medical evidence relating the low back strain to service.  

The evidence of record at the time of the March 2001 rating decision which declined to reopen the Veteran's claim included several VA and private medical records showing treatment for various maladies from 1999 to 2000.  Other than a single VA outpatient note dated in November 2000 (two days after filing his claim to reopen) which showed the Veteran was seen for low back pain, the additional evidence did not show that the Veteran had a low back disability that was related to service.  

The evidence added to the record since the March 2001 rating decision consists primarily of the Veteran's allegations that he suffered a low back injury in service and has had chronic problems ever since and a June 2010 VA examination and February 2012 addendum report.  

As to the Veteran's allegations, the Board notes, that for purposes of reopening a finally denied claim, lay statements are presumed credible unless they are inherently false or untrue or beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).  In this case, the Veteran's recent assertions that he has had chronic low back problems ever since an injury in service are inconsistent with his STRs.  These assertions also contradict the Veteran's own reported history at the time of his service separation examination in December 1997.  As his original claim was denied, in part, on the fact that there was no evidence of a back injury or any treatment in service, and the Veteran's specific denial of any history back problems at the time of service separation, the Veteran's current allegations of a chronic low back problem since service clearly are inconsistent with and contradict his prior statements.  The Board notes that not only has the Veteran not offered any explanation for his inconsistent statements but he has ignored completely his documented post-service history of multiple back injuries in the various letters that he sent to VA during the pendency of this appeal.  Accordingly, the Board finds that the Veteran's current allegations of an in-service back injury are inherently false and not credible with respect to his claim to reopen a low back disability.  See also Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); and Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).

The Veteran also was examined by VA during the pendency of this appeal to determine the nature and etiology of any identified low back disability.  Other than age related degenerative changes of the lumbosacral spine, the Veteran was not shown to have any signs or symptom of a low back disability on VA examination in June 2010.  The Veteran's posture and gait were normal.  Straight leg raising was negative.  There was no evidence of radiculopathy, muscle atrophy, or loss of strength in the affected muscles.  The Veteran essentially had a full and painless range of passive and active motion of the lumbosacral spine and no functional impairment on repetitive motion.  The Veteran's only complaint was low back pain after sitting too long.  The June 2010 VA examiner commented that x-ray studies did not show any evidence of trauma induced degenerative changes of the lumbosacral spine and "absolutely no indication of chronic lumbar strain."  This examiner opined that the Veteran did not have a disability of the lumbar spine caused by or a result of his military service.  

In February 2012, the AMC returned the claims file to the VA examiner for an opinion as to whether the Veteran had a pre-existing disability that was aggravated by service.  In an attempt to comply with the AMC request, it appears that the examiner checked the box that more closely aligned with his original opinion concerning the nature and etiology of the Veteran's low back disability.  The examiner offered the same opinion as on the June 2010 report and indicated that there was no evidence of any complaints, symptoms or diagnosis for a low back disability in service and no evidence of lumbar strain or any other low back disability at present, other than age-related arthritis.  The examiner specifically indicated that there was no evidence of arthritis due to trauma in the Veteran's lumbosacral spine.  The Veteran does not contend, and his STRs do not show, a pre-existing low back disability at the time of service enlistment.  It is not clear from a review of the record why the AMC sought additional medical opinion in February 2012.  Thus, the Board finds that the February 2012 opinion with respect to aggravation is of little probative value.  

In summary, the Board finds that, although the additional VA examinations are "new" to the extent that they were not of record previously, these examinations do not offer any probative evidence showing that the Veteran has a low back disability at present that is due to or otherwise related to service.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993).  On the contrary, the examinations include a medical opinion to the effect that the Veteran's minimal degenerative changes of the lumbosacral spine were not due to trauma and were consistent with age-induced arthritis and he does not have a low back disability that is related to service or any incident of service.  

The Board also finds the June 2010 VA medical opinion persuasive as it was based on a longitudinal review of the entire record and included a detailed discussion of all relevant facts.  The examiner offered a rational and plausible explanation for concluding that the Veteran's current low back arthritis was not related to service.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are examiner's access to claims file and thoroughness and detail of examiner's opinion).  There is no competent contrary opinion of record.  

The evidence previously considered did not show any complaints, treatment, abnormalities or diagnosis for a low back disability in service and no evidence of arthritis within one year of discharge from service.  The additional evidence received since the last final rating decision in March 2001 does not show that the Veteran has a disability of the lumbosacral spine at present, other than age-induced arthritis, which is related to service.  Thus, the additional evidence does not offer any new or favorable probative information which would raise a reasonable possibility of substantiating the claim.  See Villalobos v. Principi, 3 Vet. App. 450 (1992) (finding that unfavorable evidence does not "trigger a reopening").  

As the recently received evidence does not meet the threshold burden of constituting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).  Accordingly, the Board finds that the Veteran's previously denied claim of service connection for a low back disability is not reopened.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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.  38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009).  

Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a Veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War.  Among the requirements are that there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  The illness must become manifest during either active service in the Southwest Asia theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2016.  38 C.F.R. § 3.317(a)(i).  

By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis.  There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification.  There must be a minimum of a six-month period of chronicity.  There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply.  VAOPGCPREC 8-98 (Aug. 3, 1998) (cited at 63 Fed. Reg. 56,703 (Oct. 22, 1998).  

For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service-connection.  38 C.F.R. § 3.317(a)(2)(i).  For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).  For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  

For purposes of this section, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).  

To qualify for compensation under above-indicated provisions, "Persian Gulf Veteran" is defined as "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).  "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).  

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).  

Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period.  38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992).  A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis.  38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991).  

An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis.  A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993).  The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address."  Bielby v. Brown, 7 Vet. App. 260, 266 (1994).  

Prostatitis, Hemorrhoids, Headaches, & Nose Bleeds

The Veteran has not offered any specific contentions with respect to the claimed disabilities other than to assert that he served in the Gulf War and believes that service connection should be established for the claimed disabilities.  

The Veteran's STRs are silent for any complaints, treatment, abnormalities or diagnosis for headaches or any nose, urinary or rectal problems, including prostatitis and hemorrhoids.  On a Report of Medical History for service separation in December 1997, the Veteran specifically denied any history of frequent or severe headaches, dizziness, frequent or painful urination, nose problems, piles or rectal disease or any other genitourinary problems, and no pertinent abnormalities were noted on examination at that time.  

Likewise, the Veteran made no mention of the claimed disabilities on his original application for VA compensation benefits received in January 1998, when examined by VA in May and June 1998, on a subsequent claim for VA benefits in November 2000, or when examined by VA in January 2001.  Additionally, the Veteran made no mention of any urinary symptoms, hemorrhoids, headaches or nose bleeds when seen by VA for various maladies from 1998 to 2001.  In fact, the Veteran specifically denied any headaches when seen by VA in May and September 1998 and March 1999.  Private treatment records showed that the Veteran reported a two day history of headaches when seen in April 1999, but that he made no mention of any headaches when seen in December 1999 and June 2000.  The first reported complaint of nose bleeds or any urinary problem was with the filing of this claim in July 2002.  The Veteran has never been shown to have hemorrhoids.  

On a VA general examination in May 2003, the Veteran reported a history of migraine headaches since 1995, that his urinary problems began in 1997, and that he had external hemorrhoids in 2002.  The Veteran described his headaches as mild beginning in the occipital area and radiating toward the front of the head.  The examiner indicated that the Veteran was to be evaluated by neurological services, and did not offer any diagnosis or opinion for the Veteran's headaches.  

On VA neurological examination in June 2003, the Veteran reported that his headaches began in 1996, when he was deployed to Bahrain.  The Veteran described his headaches as a sharp, stabbing pain localized midline on the top of his head with persistent nausea, blurred vision, occasional scintillating scotomas and photophobia.  He said that his headaches last two to eight hours and occur approximately three times a week, and that there had been no change in their characteristics since initial onset.  The diagnoses included vascular headaches, inadequately controlled.  

On VA genitourinary examination in June 2003, the Veteran reported a two to three year history of urinary problems, and said that he was being treated by a private physician.  A digital rectal examination revealed an approximate 40 g prostate without nodules.  The Veteran reported some tenderness in the area on digital examination; however, the examiner commented that the tenderness did not seem consistent with prostatitis.  The examiner also noted that while the Veteran had a creatinine of 1.0 in May 2003, laboratory urinalysis on the same date was entirely negative and the RPR (rapid plasma reagin) was nonreactive.  The examiner commented that the etiology of the Veteran's complaints of urgency and frequency was unclear, but that it was more likely that he suffered from a component of prostatitis or a chronic pelvic pain syndrome.  

Private medical records received in October 2006 showed that the Veteran was treated for various maladies from September 2002 to May 2003 and he first was treated for urinary problems in November 2002.  

The Board made several attempts to obtain all of the Veteran's private treatment records from two physicians he identified as having treated him for prostatitis from 2002 to 2003.  Records were received from one physician in October 2006 but there was no response to the two requests for records from the second physician (K. Naz).  

On VA neurological examination in June 2010, the Veteran reported that his headaches began in 1998, and that he was treated for them in service.  He said that his headaches were frontal in location and throbbing, and associated with nausea, occasional dizziness, blurred vision and photophobia.  An MRI of the brain was normal.  The diagnosis was migraine headaches.  

In an addendum (neurological) report in March 2012, the VA examiner indicated that he reviewed the claims file and found no evidence of treatment for any headaches in service.  The examiner noted that the Veteran did not report any headaches when evaluated by neurologic services for sleeping problems in service, or when evaluated after hitting his head after slipping on snow in service, and that the Veteran specifically denied any headaches at the time of service separation examination.  The examiner opined that there was no evidence to link the Veteran's current headaches to service.  

On VA genitourinary examination in June 2010, the Veteran complained of urgency and dysuria, and reported frequency every two to three hours during the daytime and once at night.  Examination of the Veteran's bladder, anus and rectal walls, urethra, perineal sensation, prostate, penis, testicles, epididymis/spermatic cord/scrotum were within normal limits and showed no pertinent abnormalities.  There was no testicular atrophy.  The examiner indicated that examination of the Veteran's prostate was normal, and that his history of prostatitis had apparently resolved as there was no current evidence of prostatitis.  

Concerning the Veteran's hemorrhoids, the Board notes that, when examined by VA in June 2010, the Veteran reported that he could not recall when he was diagnosed with hemorrhoids and said that it was an "incidental finding."  The Veteran reported that after a bowel movement, "it feels a little thick down there."  The Veteran denied any bleeding, anal itching, burning, diarrhea, difficulty passing a stool, tenesmus or swelling.  A rectal examination was entirely normal and showed no evidence of any hemorrhoids, tags, prolapse, bleeding, anorectal fistula, anal or rectal stricture, or impaired sphincter or rectal prolapse.  The diagnosis was normal rectal examination, no evidence of hemorrhoids.  

Concerning the Veteran's nose bleeds, other than his reported history of nose bleeds, the evidentiary record is completely silent for any complaints, treatment, abnormalities or diagnosis for any injury or problems involving nose bleeds.  On VA sinus examination in June 2010, the examiner noted that the Veteran had a history of allergic rhinitis that was not related to service, and that he had no symptoms suggestive of recurrent sinus infections or chronic sinusitis.  

In an addendum dated in February 2012, the examiner indicated that the claims file was reviewed and noted that the VA treatment records showed that the Veteran was treated for allergic rhinitis and nasal dryness which was likely secondary to nasal steroid use, and that he was advised to start nasal saline daily before using steroids, and to apply bactroban to the anterior nasal septum.  The examiner opined that given the Veteran's medical history, it was less likely than not that his nose bleeds were incurred in or otherwise due to service and were not due to or aggravated by a service-connected disability.  

The Board finds the February 2012 VA medical opinion persuasive as it was based on a thorough review of the record and included a discussion of all relevant facts.  The examiner offered a rational and plausible explanation for concluding that the Veteran's nose bleeds were due to nasal steroid use for his nonservice-connected allergic rhinitis and was not related to service.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean, 13 Vet. App. at 444.  There is no competent contrary opinion of record.  

In this case, the Veteran has not advanced any specific argument as to why he believes that service connection should be established for headaches, nose bleeds, prostatitis or hemorrhoids, other than a vague reference to having served during the Gulf War.  Nor has the Veteran provided any credible or competent evidence that the claimed disabilities were manifested in service or otherwise are related to service.  

With respect to the claims based on an undiagnosed illness, as these disabilities are attributable to a known clinical diagnosis, i.e., migraine and vascular headaches, hemorrhoids, resolved prostatitis and dry sinuses associated with allergies, there is no legal entitlement to consideration under the undiagnosed illness provisions.  The Court has held that, where there is no entitlement under the law to the benefit sought, the appeal must be terminated.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  

Considering the Veteran's claims on a direct basis, the Board finds that there is no evidence of any complaints, treatment, abnormalities or diagnosis for any headaches, urinary or prostate problems, nose bleeds, rectal problems, hemorrhoids or prostatitis in service or until several years after discharge from service.  In fact, the Veteran specifically denied any history of frequent headaches, frequent or painful urination, nose problems, piles or rectal disease or any other genitourinary problems at the time of his service separation examination and no pertinent abnormalities were noted on examination at that time.  Although the Veteran now claims that he has had chronic urinary problems since 1997, he made no mention of the claimed disabilities on his original claim for VA compensation benefits in January 1998, when examined by VA in May and June 1998, on a subsequent claim for VA benefits in November 2000, or when examined by VA in January 2001.  

The Board notes in this regard that the Veteran has given several inconsistent and contradictory statements concerning the date of onset and treatment for his headaches and urinary problems.  These inconsistencies raise serious doubts as to the Veteran's ability to provide accurate and reliable information and calls in to question his credibility.  Specifically, on VA general examination in May 2003, the Veteran reported that his urinary symptoms began in 1997.  As noted above, however, the Veteran's STRs were completely silent for any urinary problems or prostatitis in service.  Moreover, on VA genitourinary examination in June 2003, the Veteran reported a 2 to 3 year history of symptoms.  The private medical records do not show any complaints or treatment for urinary problems until November 2002.  The Board finds that the Veteran's inconsistent assertions regarding the onset date and symptomatology related to his urinary problems are inherently incredible and entitled to no probative value.  See Pond, 12 Vet. App. at 341, and Madden, 125 F.3d at 1481.

As to his headaches, when first examined by VA in May 2003, the Veteran reported a history of migraine headaches since 1995.  On VA examination in June 2003, however, he reported that his headaches began in 1996 when he was deployed to Bahrain.  When examined by VA in June 2010, he reported that his headaches began in 1998 and he was treated for them in service.  As noted above, however, not only were the Veteran's STRs completely silent for any complaints or treatment in service, the Veteran also specifically denied any headaches at the time of his service separation examination in December 1997.  Moreover, while the Veteran now claims that he has had chronic headaches since service, he made no mention of any such problems on his original VA compensation claim in January 1998, when examined by VA in May and June 1998, on a subsequent claim for VA benefits in November 2000, or when examined by VA in January 2001.  Furthermore, the evidence showed that the Veteran specifically denied any headaches when seen by VA outpatient services in May and September 1998, and March 1999.  This again persuasively suggests that the Veteran's inconsistent assertions regarding the onset date and symptomatology related to his headaches are inherently incredible and entitled to no probative value.  Id.

The Veteran was not shown to have headaches or any nose, urinary or rectal problems in service.  There is no competent or credible evidence of any chronic headaches, urinary problems, or nose bleeds until four years or more after service.  The Veteran also has not presented any competent evidence relating any current disability to service.  In summary, the Board finds that service connection for a headache disorder, a urinary disorder, including prostatitis, hemorrhoids, and for nose bleeds is not warranted.  

Increased Ratings

When an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings also are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  38 C.F.R. § 4.1 (2012).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  

Hypertension

Concerning the claims for increased ratings for hypertension, a cervical spine disability, left index finger scar and left sternoclavicular disability, the Board notes that the Veteran has not articulated any specific contentions regarding these issues other than to assert that the manifestations of these service-connected disabilities are more severe than reflected by the ratings currently assigned.  In this regard, it should be noted that while the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria is not probative evidence.  

Historically, service connection was granted for hypertension by rating action in December 2001, based on a VA examiner's opinion that the Veteran's elevated blood pressure (BP) readings in service were the initial manifestations of his later diagnosed hypertension.  The RO assigned a 10 percent rating under DC 7101, on the basis that the Veteran required continuous medication for control of his hypertension.  

In July 2002, the Veteran sought an increased rating for his hypertension.  By rating action in June 2011, the RO granted an increased rating to 20 percent effective from June 1, 2007, based on a finding that the Veteran had a diastolic pressure predominantly 110 or more.  By rating action in May 2012, the RO assigned an increased rating to 40 percent, based on a diastolic pressure greater than 120 on two of the three recordings on VA examination in June 2010.  Thus, the question to be resolved in this case is whether the Veteran is entitled to a disability rating greater than 10 percent prior to June 1, 2007, greater than 20 percent prior to June 21, 2010, and greater than 40 percent from June 21, 2010, for hypertension.  

Under DC 7101, a 10 percent rating is assigned when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent rating requires a diastolic pressure predominantly 110 or more; or systolic pressure of predominantly 200 or more.  A 40 percent rating is assigned when diastolic pressure is predominantly 120 or more.  A 60 percent rating is assigned when diastolic pressure is predominantly 130 or more.  38 C.F.R. § 4.104, DC 7101.  

At this point, it should be noted that the Board has reviewed all of the VA and private medical reports of record, beginning one year prior to the Veteran's original claim of service connection for hypertension in November 2000, to the present.  From November 1999 to June 1, 2007, the record showed that the Veteran's BP was recorded 45 times (three times by his private doctor), and that he was not shown to have a diastolic pressure of 110 or greater, or a systolic pressure of 200 or greater, on any occasion prior to June 1, 2007.  When seen by VA outpatient services for a trauma to his left eye on June 1, 2007, his BP was 165/116 and 177/106.  Based on the BP recordings prior to June 1, 2007, the evidence does not show that the Veteran had sufficient symptoms to warrant a rating in excess of 10 percent.  That is, the Veteran was not shown to have a diastolic pressure predominantly 110 or greater or a systolic pressure predominantly 200 or more.  Thus, the Board finds that a disability rating greater than 10 percent prior to June 1, 2007, for hypertension is not warranted.  

By rating action in June 2011, the RO assigned an increased rating of 20 percent effective from June 1, 2007, for hypertension.  The RO stated that the Veteran had diastolic pressures greater than 110 on the three recordings on VA examination in June 2010, and had additional BP readings ranging from 150/95 to 177/106 from June 1, 2007 to June 21, 2010 (date of VA examination).  Therefore, the RO concluded that the BP readings supported the assignment of a 20 percent rating from June 1, 2007.  

A review of all the medical reports of record from June 1, 2007 to June 21, 2010, the evidence showed that the Veteran's BP was recorded 19 times by VA (no private records during that period), of which he was shown to have a diastolic pressure of 110 or greater seven times, including the three readings on the June 2010 VA examination and the 2 readings on the June 1, 2007 VA outpatient note.  In other words, the evidence showed that during the 3 years from June 2, 2007 to June 20, 2010, the Veteran had a diastolic reading of 110 or greater twice in the 14 times that his BP was recorded (in July 2007 and May 2008) and did not have a systolic pressure reading greater than 200 at any time during this time period.  Thus, while the Veteran was assigned a 20 percent rating for his hypertension from June 1, 2007 to June 21, 2010, the objective evidence did not show a diastolic pressure predominantly 110 or greater during that period.  In summary, the Board finds that the evidence does not show that the criteria for a disability rating greater than 20 percent at any time prior to June 21, 2010, for hypertension have been met.  

Finally, by rating action in May 2012, the RO assigned an increased 40 percent rating effective June 21, 2010 (the date of VA examination), based on BP readings of 191/123, 187/119, and 188/122 on VA examination.  A review of the medical reports since June 2010 showed that the Veteran's BP was recorded by VA only twice, in January and February 2012.  When seen by VA in January 2012, the Veteran reported that he had been in Nigeria for six months and had returned three months ago, but was out of his medications.  On examination, his BP was 189/101, 204/114 and 161/72.  The treatment note indicated that the Veteran was restarted on all of his hypertensive medications.  When seen by VA in February 2012, the Veteran's BP was 158/112.  The Board notes that there are no additional medical records in the claims file or Virtual VA for any treatment subsequent to the February 2012 VA outpatient note.  

Concerning the claim for a disability rating greater than 40 percent for hypertension, the Board notes that while there were very few BP recordings subsequent to the June 2010 VA examination, the only time the Veteran was shown to have a diastolic pressure of 120 or greater was on the VA examination.  Of the four BP recordings since the VA examination, including when he was off his medications for several weeks, the Veteran was not shown to have a diastolic pressure of 120 or greater.  Absent evidence of a diastolic pressure predominantly 130 or more, there is no basis for assigning a disability rating greater than 40 percent from June 21, 2010, for hypertension.  Accordingly, the appeal is denied.  

Cervical Strain

Historically, service connection was established for cervical strain by the RO in August 1998, based on treatment for neck stiffness in service and some decreased range of motion and x-ray evidence of mild disc space narrowing of the cervical spine on VA examination in May 1998.  At that time, the rating schedule did not provide a rating code for cervical strain, and the RO assigned a 10 percent rating under DC 5293, by analogy to intervertebral disc syndrome.  It should be noted, however, that the Veteran has never been shown to have intervertebral disc syndrome (IVD).  

In July 2002, the Veteran sought an increased rating for his cervical spine disability.  Despite the fact that he was not shown to have any neurological symptoms or radicular pain in the upper extremities and no suspected radiculopathy when examined by VA in June 2003, the RO assigned an increased rating to 20 percent in July 2003, for moderate recurring attacks of IVD.  

During the pendency of this appeal, the rating criteria for evaluating disabilities of the spine were amended on two occasions.  The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the Veteran's spine disability is warranted.  VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change.  However, the Veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made.  See VAOPGCPREC 3-00.  That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made.  See 38 U.S.C.A. § 5110(g) (West 2002).  

In general, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, VA must consider both versions and apply the one most favorable to the Veteran.  VAOPGCPREC 7-2003 (November 19, 2003).  

In this case, the RO considered both the old and the revised criteria.  The Veteran and his representative were provided both sets of criteria and were given an opportunity to respond.  Accordingly, the Veteran will not be prejudiced by the Board's review of the issue as due process requirements have been met.  VAOPGCPREC 11-97 at 3-4; Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 7-2003.  

The first amendment to the Rating Schedule governing the rating of spinal disabilities pertained to the evaluation of intervertebral disc syndrome.  67 Fed. Reg. 54,345, 54,349 (Aug. 22, 2002) (effective from September 23, 2002).  Under the old version for intervertebral disc syndrome DC 5293, a 60 percent rating was assigned for pronounced, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief.  A 40 percent rating was assigned for severe, recurring attacks with intermittent relief.  A 20 percent rating was assigned for moderate symptoms with recurring attacks.  A 10 percent rating was assigned for mild symptoms.  38 C.F.R. § 4.71a, DC 5293 (effective prior to September 23, 2002).  

Also, prior to September 26, 2003, under DC 5290, limitation of motion of the cervical spine was assigned a 10 percent rating for slight limitation of motion, a 20 percent rating for moderate limitation of motion, and a maximum schedular rating of 30 percent for severe limitation of motion.  38 C.F.R. § 4.71a, DC 5290 (effective prior to September 26, 2003).  

Under the revised criteria, effective September 23, 2002, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  See 38 C.F.R. § 4.71a, DC 5293, as amended by 67 Fed. Reg. 54345-54349 (August 22, 2002).  

A 20 percent rating is assigned with incapacitating episodes of having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned with incapacitating episodes of having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is assigned with incapacitating episodes of having a total duration of at least six weeks during the past 12 months.  Id. 

Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  

Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.  

Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.  

The second revision to the Rating Schedule governing the rating of spinal disabilities was effective September 26, 2003.  At that time, VA amended its Schedule for Rating Disabilities, 38 C.F.R. Part 4, to institute a general rating formula for evaluating diseases and injuries of the spine, including lumbosacral or cervical strain under DC 5237, spinal stenosis under DC 5238, degenerative arthritis of the spine under DC 5242, and intervertebral disc syndrome under Diagnostic Code 5243.  Under the revised criteria, lumbosacral or cervical strain will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, The Spine, Note (6) (2012).  

Under the General Rating Formula as applicable to the Veteran's cervical spine disability, a 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees, or the combined range of motion of the cervical spine is not greater than 170 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent rating is warranted if there is unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.  These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  (38 C.F.R. § 4.71a, DCs 5235 to 5243, effective September 26, 2003.)  

The revised rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  

Note (2): (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees; extension is zero to 45 degrees; left and right lateral flexion are zero to 45 degrees; and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The combined normal range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id.  

The criteria with respect to evaluating intervertebral disc syndrome based on incapacitating episodes, effective from September 26, 2003, were essentially unchanged from the revised criteria of September 23, 2002.  Note (1) provided that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  (38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, effective September 26, 2003.)  

DC 8510 addresses the upper radicular group (5th and 6th cervicals), pertaining to the shoulders and elbows.  DC 8511 addresses the middle radicular group pertaining to movement of the arms, elbows, and wrists.  DC 8512 addresses the lower radicular group which controls use of hands and fingers.  Under all three DCs, incomplete paralysis is rated 20 percent when mild, 40 percent when moderate, and 50 percent when severe.  A 70 percent rating is warranted for complete paralysis under all three radicular groups.  Complete paralysis under DC 8510 is defined as all shoulder and elbow movement lost or severely affected, hand and wrist movements not affected.  Under DC 8511, complete paralysis contemplates adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist is lost or severely affected.  Complete paralysis of the lower radicular group (DC 8512) contemplates all intrinsic muscles of the hand, and some or all of flexors of the wrist and fingers are paralyzed (substantial loss of use of hand).  38 C.F.R. §§ 4.124a, DCs 8510, 8511, and 8512 (2012).  

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).  

In this case, the Veteran was examined by VA at least three times during the pendency of this appeal, including in June 2003 and June 2010.  The Veteran's complaints and the clinical findings were not significantly different, manifested principally by numbness/tingling in his hands when sleeping, neck stiffness in the morning and persistent neck pain, primarily when turning to the left.  The Veteran denied any radiculopathy or myelopathy, or any weakness or loss of dexterity of the hands, and said that his symptoms resolve with shaking his hands.  

On VA general examination in May 2003, the Veteran complained of neck pain and difficulty turning his head.  On examination, the Veteran's muscles were well developed, symmetrical and had good strength.  He had full range of motion of the cervical spine and neurological examination was nonfocal.  The examiner noted that the Veteran was scheduled for a more comprehensive neurological examination.  

On VA neurological examination in June 2003, the cranial nerves were intact, muscle tone, bulk and strength were normal, and deep tendon reflexes were 2+ in the upper extremities.  There was some mild decrease in temperature and pinprick sensations involving the fingertips, but was otherwise within normal limits.  There was no obvious bony deformities or abnormalities of the curvature of the cervical spine or focal tenderness.  Forward flexion, extension and rotation to the right was normal and some slight limitation of rotation to the left with mild pain.  The impression included chronic neck pain, musculoskeletal in nature.  The examiner commented that x-ray studies of the cervical spine showed mild degenerative changes but no other significant pathology.  The neck pain appeared to be musculoskeletal in nature.  

A VA EMG/NCV study in May 2005 was within normal limits and showed no neurological deficits in the upper extremities.  

When examined by VA in June 2010, the examiner indicated that the claims file was reviewed and included a discussion of the Veteran's complaints, medical history and the findings on examination.  The examiner noted that while the Veteran reported muscle strain in his left trapezius muscle, he had absolutely no symptoms related to his cervical spine.  There was no indication of muscle spasm, or spinous or paraspinous disability or tenderness.  The Veteran reported that the only time his neck bothers him is when he hyper-rotates or over rotates his neck or head.  The Veteran denied any flare-ups or incapacitating episodes and does not use a brace.  There was no evidence of inflammatory joint disease or radiculopathy, or any bowel or bladder dysfunction.  On examination, flexion/extension and left and right lateral flexion was to 45 degrees, and rotation was to 80 degrees, bilaterally.  Repetitive motion in all planes, actively and passively against resistance caused no pain, weakness or fatigue.  There was no sensory disturbance, muscle wasting or loss of strength, and deep tendon reflexes were equal in the upper extremities.  

In an addendum report, dated in February 2012, the VA examiner who evaluated the Veteran in June 2010 commented that the Veteran did not have any symptoms related to degenerative disc disease of the cervical spine, and that his current symptoms totally involved the trapezius muscle and was unrelated to the cervical spine disability.  

The medical evidence of record does not demonstrate more than slight actual or functional limitation of motion of the cervical spine at any time during the pendency of this appeal.  Thus, a disability rating greater than 20 percent for the Veteran's cervical spine under DC 5290 is not warranted.  Although the RO rated the Veteran's cervical spine disability under the rating code for IVD (DC 5293), he has never been shown to have IVD.  In any event, the evidence does not show any signs or symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent.  Absent evidence of severe, recurring attacks of IVD with intermittent relief, there is no basis for the assignment of a disability rating greater than 20 percent for the Veteran's cervical spine under the old rating criteria for IVDS (DC 5293).  

As to rating the Veteran under the old rating criteria for ankylosis, it is noted that ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Colayong v. West, 12 Vet. App. 524 (1999).  Here, the Veteran retains significant motion of the spine which has been considered in determining the current rating.  Therefore, a rating under DC 5287 for the Veteran's cervical spine for ankylosis, or a disability rating greater than 20 percent under DC 5285 for fracture of the cervical spine or DC 5286 for complete bony fixation are all not warranted.  

The medical evidence shows that the Veteran essentially has normal range of motion of the cervical spine, no muscle atrophy or any significant neurological symptoms, and no additional functional impairment due to pain, fatigue on repetitive use, lack of endurance or incoordination.  While the Veteran had some slight limitation of rotation of the cervical spine to the left when examined by VA in June 2003, he had no limitation of motion in any plane when examined by VA in June 2010.  In fact, the VA examiner in June 2010, indicated that the Veteran's neck symptoms were not related to his cervical spine, but to the left trapezius muscle.  In any event, active forward flexion of the cervical spine during the pendency of this appeal was to no less than 45 degrees, and the combined range of motion was to greater than 170 degrees.  Applying the clinical findings to the General Rating Formula discussed above, the Veteran's cervical spine disability merits no more than a 10 percent rating.  

The Board also must consider whether the Veteran is entitled to a disability rating greater than 20 percent under the revised rating criteria for disabilities of the spine effective September 23, 2002, and the criteria effective from September 26, 2003, the effective dates of the revised regulations.  As indicated above, the revised regulations may not be applied prior to the effective date of the change.  VAOPGCPREC 3-2000.  

In this regard, the evidence does not show that the Veteran has experienced incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  In fact, the current clinical and diagnostic findings do not satisfy the criteria for a disability rating greater than 10 percent for the Veteran's cervical spine under the revised criteria of DCs 5237/5243.  The Veteran does not claim, nor does the evidence show, any incapacitating episodes or any required bed rest due to the cervical spine disability at any time during the pendency of this appeal.  The Veteran described his neck pain as morning stiffness which dissipated relatively quickly and, more importantly, does not affect his daily activities to any significant degree.  Thus, the Board finds that the evidence does not meet the criteria for a disability rating greater than 20 percent for the Veteran's cervical spine under either the former or revised regulations.  

The Board also has considered whether an increased rating is in order in this case when separately evaluating and combining the orthopedic and neurologic manifestations of the Veteran's service-connected cervical spine disability under the revised orthopedic rating criteria and applicable neurologic rating criteria in effect between September 23, 2002, and September 26, 2003, and under the revised orthopedic rating criteria and any applicable neurologic rating criteria from September 26, 2003.  In this regard, there was no evidence of any associated weakness, sensory loss or muscle atrophy in his neck or upper extremities.  Based on the clinical and diagnostic evidence of record, the Board does not find that the evidence shows clinically significant neurological symptoms associated with the Veteran's cervical spine at any time during the pendency of this appeal.  Therefore, a compensable disability rating is not warranted under any of the applicable rating codes pertaining to the radicular groups involving the cervical spine discussed above.  38 C.F.R. §§ 4.124a, DCs 8510, 8511, 8512.  As such, consideration of separately evaluating and combining the neurologic and orthopedic manifestations of the Veteran's cervical spine disability would not result in a higher rating.  

Consideration also must be given to any functional impairment of the Veteran's ability to engage in ordinary activities and the effect of pain on the functional abilities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012).  In this regard, the Board observes that under the Rating Schedule, the general rating formula notes that the rating criteria are to be applied with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Other than the Veteran's report of pain, there was no evidence of visible behavior or adequate pathology to suggest that any additional functional impairment is commensurate with the criteria necessary for a disability rating greater than 20 percent.  

Moreover, the question of functional loss due to pain and other related factors was specifically addressed by the VA examiner in June 2010.  The examiner indicated that there was no limitation of motion on repetitive movement due to pain, fatigue or weakness.  There was no indication of sensory deprivation, muscle wasting or loss of strength in the upper extremities and normal deep tendon reflexes.  

The Court has held that, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40."  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  As discussed above, there was no evidence of muscle atrophy or neurological impairment in the cervical spine or upper extremities on the VA examinations during the pendency of this appeal, and the range of motion demonstrated is specifically contemplated by the rating schedule.  In light of the clinical findings of record, the Board finds that an increased rating for the Veteran's cervical spine disability based on additional functional loss due to the factors set forth above is not demonstrated.  

Applying the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's present impairment from his cervical spine disability do not suggest that he has sufficient symptoms so as to a warrant a disability rating greater than 20 percent.  Accordingly, the Board finds that the 20 percent rating currently assigned for his degenerative disc disease of the cervical accurately depicts the severity of the condition for the entirety of the rating period on appeal and there is no basis for a higher staged rating.  See Hart, 21 Vet. App. at 505.  

Left Index Finger Scar

The Veteran currently is assigned a 10 percent rating for a laceration scar on the left index finger under the provisions of DC 7804 for superficial, painful scars.  

Initially, it should be noted that the applicable rating criteria for skin disorders, including DC 7804, 38 C.F.R. § 4.118, were amended effective August 30, 2002.  See 67 Fed. Reg. 49,590 (July 31, 2002).  In this case, the RO considered both the old and the revised criteria.  The Veteran and his representative were provided both sets of criteria and were given an opportunity to respond.  Accordingly, the Veteran will not be prejudiced by the Board's review of the issue as due process requirements have been met.  VAOPGCPREC 11-97 at 3-4; Bernard, 4 Vet. App. at 393-94; VAOPGCPREC 7-2003.  

Under the former criteria, a 10 percent rating was warranted under DC 7804 for superficial scars that were tender and painful on objective demonstration.  A 10 percent rating also was assigned under DC 7803 for superficial scars that were poorly nourished with repeated ulceration.  All other scars were rated based on the limitation of the part affected.  See 38 C.F.R. § 4.118 (effective prior to August 30, 2002).  

The 10 percent rating currently assigned for the left index finger is the highest rating possible under DC 7804, absent evidence of additional limitation of motion or functional impairment of the finger, which is not present in this case.  Given the facts of this case, the only other potentially applicable rating code which provides a disability rating greater than 10 percent is DC 7801.  Under the revised DC 7801, a higher 20 percent rating may be assigned for a scar other than head, face or neck, that is deep or that causes limited motion, and exceeds and area of 12 sq. inches (77 sq. cm.).  

The findings from the June 2010 VA examination showed a relatively small (.01 by 1.5-cm), superficial, well-healed scar on the distal, palmar side of the left index finger which was not tender, poorly nourished or adherent, and did not cause any functional impairment.  There was no inflammation, edema or keloid formation, and no limitation of motion associated with the scar.  

Applying the clinical findings to the rating criteria, the Board finds that under either the old or revised diagnostic criteria, the left index finger scar does not cause any limitation of function so as to warrant a higher rating under DC 7805.  Nor does the scar exceed an area of 12 sq. inches or 77 sq. cm. so as to warrant a higher rating under the revised criteria for DC 7801.  Thus, a disability rating greater than 10 percent is not warranted for the Veteran's scar under any of the potentially applicable DCs associated with scars and their residual effects.  Accordingly, an increased rating for the left index laceration scar is not warranted.  

Left Sternoclavicular Joint

Historically, service connection was established for anterior dislocation of the left sternoclavicular joint (collarbone) by the RO in August 1998, based on the STRs which showed treatment for sternocleidomastoid muscle pain after a slipped and fall injury to his left posterior side and head in December 1995.  X-ray studies of the left shoulder were negative, and the diagnosis was left shoulder strain.  Post service VA examination in May 1998, showed some limitation of motion of the left shoulder to above shoulder level, pain with overhead use, and a bump in the anterior portion of the clavicle area consistent with a prior dislocation.  The Veteran was assigned a 10 percent rating under Diagnostic Codes (DC) 5299-5203, effective from January 25, 1998, the day following his discharge from service.  38 C.F.R. § 3.400(b)(2).  The 10 percent rating remained in effect when the Veteran sought an increased rating in July 2002.  For informational purposes, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27 (2012).  

Under DC 5203, for impairment of the clavicle or scapula, a 20 percent rating is assigned for dislocation a major or minor joint, or for nonunion with loose movement, and a 10 percent rating is assigned for nonunion without loose movement or for malunion.  38 C.F.R. § 4.71a, DC 5203.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence).  

Other potentially applicable code provisions include DC 5200 for ankylosis of the scapulohumeral articulation (where the scapula and humerus move as one piece).  Under DC 5200, a 40 percent rating is assigned for unfavorable ankylosis of the minor joint with abduction limited to 25 degrees from the side, and a 30 percent rating for intermediate ankylosis between favorable and unfavorable.  

DC 5201, for limitation of arm motion, provides for a 30 percent rating for the minor joint when there is limitation of motion of the arm to 25 degrees or less from the side, and a 20 percent rating when limitation of motion is midway between side and shoulder level or with motion at shoulder level.  

DC 5202 provides for a 20 percent rating for malunion of the minor humerus with moderate or marked deformity, or when there is dislocation of the scapulohumeral joint with episodes of guarding of all arm movements.  A 40 percent rating is assigned for fibrous union.  A 50 percent rating is assigned for nonunion (false flail joint).  A 70 percent rating is assigned for a minor extremity when there is impairment of the humerus manifested by loss of head (flail shoulder).  

In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I (2012).  Forward flexion is the range of motion from the side of the body out in front) and abduction is the range of motion from the side of the body out to the side.  Id.  Normal range of shoulder motion is forward extension (flexion) from 0 to 180 degrees, shoulder abduction from 0 to 180 degrees, internal rotation from 0 to 90 degrees, and external rotation from 0 to 90 degrees.  Lifting the arm to shoulder level is lifting it to 90 degrees.  See 38 C.F.R. § 4.71, Plate I (2012).  

When examined by VA in June 2010, the Veteran reported some discomfort at the sternoclavicular joint, particularly with heavy lifting.  The Veteran denied any flare-ups or incapacitating episodes, did not use any braces or splints, and did not have an evidence of inflammatory joint disease.  On examination, there was no evidence of tenderness or swelling in any aspect of the sternoclavicular joint.  Range of motion in the left shoulder was normal with flexion and abduction to 180 degrees, and internal and external rotation to 90 degrees.  The sternoclavicular joint was stable and did not move out of its normal motion, and there was no additional range of motion loss on repetitive movement of the left shoulder due to pain, weakness, or fatigue.  X-ray studies of the left shoulder showed the bones were intact and well-aligned with no fractures, subluxation or dislocation, and some decreased acromioclavicular joint space.  The diagnosis was degenerative changes in the left acromioclavicular joint.  

Applying the appropriate DCs to the facts of this case, the objective assessment of the Veteran's impairment from his left sternoclavicular disability does not suggest that he has sufficient symptoms so as to a warrant a disability rating greater than 10 percent under any of the applicable rating codes at anytime during the pendency of this appeal.  The clinical and diagnostic findings of record fail to show any limitation of motion in his left shoulder or any evidence of actual impairment of the sternoclavicular joint.  There was no evidence of dislocation of a minor joint, vis-à-vis, the left shoulder, or any evidence of malunion, nonunion or loose motion of the sternoclavicular joint.  Thus, a higher rating for the Veteran's left sternoclavicular joint under DCs 5201 or 5203 is not warranted.  

The Board also must consider whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See DeLuca, 8 Vet. App. at 202.  The Board has considered the Veteran's assertions concerning his left collarbone disability.  The objective findings from the VA examination did not show any limitation of motion, instability or weakness in the left collarbone or the left shoulder, however.  Moreover, the VA examiner who evaluated the Veteran opined that there was no additional limitation of motion or functional impairment due to pain, weakness or on repetitive movement, and the Veteran denied any flare-ups.  

The Board recognizes that the Veteran has some discomfort in the left collarbone area with heavy lifting.  As noted, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40."  Johnston, 10 Vet. App. at 85.  Here, there was no objective evidence of any additional functional loss of use due to pain or on repetitive use to the degree necessary for the assignment of a higher rating.  As there is no objective evidence of any additional functional loss of use due to pain or on flare-ups, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for a higher rating for the Veteran's left sternoclavicular joint.  

Applying all of the appropriate diagnostic codes to the facts of this case, an objective assessment of the Veteran's present impairment of the left collarbone disability does not suggest that he has sufficient symptoms so as to warrant a disability rating greater than 10 percent at any time during the pendency of this appeal.  See Fenderson, 12 Vet. App. at 119.  

Extraschedular

The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2012).  In this case, the Board finds that the manifestations of the Veteran's hypertension, cervical spine, left index finger and left sternoclavicular joint disabilities are consistent with the schedular criteria, and there is no persuasive evidence that any manifestations related to the service-connected disabilities are unusual or exceptional.  In view of this, referral of this case for extraschedular consideration is not in order.  See Thun v. Peake, 22 Vet. App. 111 (2008); Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  



ORDER

As new and material evidence has been received, the previously denied claim of service connection for a gastrointestinal disorder is reopened; to this extent only, the appeal is granted.  

As new and material evidence has been received, the previously denied claim of service connection for a sleep disorder is reopened; to this extent only, the appeal is granted.

As new and material evidence has not been received, the previously denied claim of service connection for a low back disability is not reopened.  

Entitlement to service connection for a urinary disorder, claimed as prostatitis, to include as due to an undiagnosed illness, is denied.  

Entitlement to service connection for hemorrhoids, to include as due to an undiagnosed illness, is denied.  

Entitlement to service connection for a disability manifested by nose bleeds, to include as due to an undiagnosed illness, is denied.  

Entitlement to service connection for a headache disorder, to include as due to an undiagnosed illness, is denied.  

Entitlement to a disability rating greater than 10 percent prior to June 1, 2007, greater than 20 percent prior to June 21, 2010, and greater than 40 percent from June 21, 2010, for hypertension is denied.  

Entitlement to a disability rating greater than 20 percent for cervical strain is denied.  

Entitlement to a disability rating greater than 10 percent for status-post laceration scar of the left index finger is denied.  

Entitlement to an initial rating greater than 10 percent for anterior dislocation of the left sternoclavicular joint is denied.  


REMAND

In view of the favorable decision to reopen the claims of service connection for a gastrointestinal disorder and sleep disorder, the RO must now consider the issues on a de novo basis.  

In order to establish service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

As discussed above, the STRs showed that the Veteran was treated for gastrointestinal problems, including possible GERD, on several occasions in service.  Although the Veteran was not shown to have a diagnosed disability when initially denied service connection by the RO in August 1998, the current evidence showed that he was diagnosed as having GERD by VA in July 2008.  There is no competent medical opinion of record which addresses the question of whether the Veteran's current gastrointestinal disorder is related to the chronic symptoms that he alleges he has experienced since service, however.  Therefore, an examination is needed to resolve this matter.  

Similarly, although the Veteran was not shown to have sleep apnea in service, the STRs showed that he was seen for problems falling asleep during service.  As the Veteran now is shown to have sleep disorder, an examination is necessary to determine whether his complaints and symptoms in service were manifestations of his current diagnosis of sleep apnea.  

Concerning the claims for waist pain and a neurological disorder, manifested by hand tremors and body shakes, claimed as due to undiagnosed illness, the Board finds that the current medical evidence of record is inadequate to render a fair and impartial adjudication these issues.  Although these matters were remanded previously to obtain a medical opinion as to the nature and etiology of any identified disability, the VA examiners (June 2010 Joint and Neurological examinations) did not provide a clear assessment as to whether the Veteran has a neurological or a waist pain disorder at present, or a qualifying chronic disability which is related to his Persian Gulf service, or otherwise was due to or the result of military service.  Although the June 2010 VA Joint examiner suggested that the Veteran's waist pain was associated with his age related degenerative joint disease of the lumbosacral spine, he did not offer an assessment specifically addressing the Veteran's claim of waist pain.  Thus, the Board finds that the examination is of little probative value.  

Additionally, the Board notes that a February 2010 letter from the VA physician who examined the Veteran in June 2010 indicated that the Veteran was being treated for "action tremors" at the Parkinson's Disease Center.  This VA physician did not provide any specific findings or include any discussion or opinion as to the nature or etiology of the Veteran's symptoms in the February 2010 letter.  Given the medical complexity of this case and failure to obtain the requested medical opinion, the Board finds that the June 2010 VA examination was inadequate and further development of the record is necessary.  Stegall v. West, 11 Vet. App. 268 (1998); see also Murinscsak v. Derwinski, 2 Vet. App. 363, 370 (1992).  

While the Board recognizes the difficulty in rendering an opinion as to the nature and etiology of the Veteran's chronic symptoms, VA is required to attempt to obtain a clear and unambiguous medical opinion based on an accurate and reliable history.  If, after review of all the pertinent evidence of record, the examiner is unable to render an opinion, he or she must include a discussion of all relevant facts and provide an explanation as to why an opinion would be speculative.  See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (holding that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability).  

For the benefit of the VA examiner, it should be noted that service connection may be granted to a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below.  By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis.  Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  38 U.S.C.A. §§ 1117, 1118 (West 2002); 38 C.F.R. § 3.317 (2012).  

The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (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 disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders.  Id.  

In this case, a VA examination by a qualified physician is necessary to determine whether the Veteran has objective indications of a current chronic disability manifested by waste pain, hand tremors and body shakes due to an undiagnosed illness or a medically unexplained chronic multisymptom illness as contemplated by 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  If the Veteran's symptoms are attributable to a known diagnosis, such as, a low back disability or some other neurological disorder, than an opinion is needed to resolve the question as to whether any identified disability had its onset in service or is otherwise related to service.  

Accordingly, the case is REMANDED for the following action:  

1.  Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for a gastrointestinal disability, a neurological disability, including waist pain, hand tremors, and body shakes, and a sleep disability since his service separation.  Obtain all VA treatment records which have not been obtained already, to include all records from the Parkinson Disease Research Education and Clinical Center at the VA Medical Center in Houston, Texas.  Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already.  A copy of any records obtained, to include a negative reply, should be included in the claims file.  

2.  Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his neurological disability, to include hand tremors, body shakes, and waist pain.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that there are any objective medical indications that the Veteran has neurological symptomatology manifested by hand tremors, body shakes, and/or waist pain.  If so, the examiner is asked to state whether such symptomatology can be attributed to a known clinical diagnosis.  If the manifestations of the Veteran's neurological symptomatology cannot be attributed to a diagnosed illness, then the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's symptoms are the result an undiagnosed illness or medically unexplained chronic multisymptom illness (such as, signs or symptoms involving the neurological system) originating during or as a result of his period of military service.  If the manifestations of any identified symptomatology cannot be attributed to a known diagnosis, then the inquiry may end.  If the Veteran's symptoms are due to a diagnosed disorder, then the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the identified disability had its onset in or otherwise is related to active service.  A complete rationale must be provided for any opinions expressed.

3.  Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his respiratory disability.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  The examiner should identify any respiratory disability, to include obstructive sleep apnea, currently experienced by the Veteran.  Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that obstructive sleep apnea, if diagnosed, first manifested itself in active service or otherwise is related to service.  A complete rationale must be provided for any opinions expressed.

4.  Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his gastrointestinal disability.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  The examiner should identify any gastrointestinal disability, to include obstructive sleep apnea, currently experienced by the Veteran.  Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a gastrointestinal disorder, if diagnosed, is related to active service or any incident of service.  A complete rationale must be provided for any opinions expressed.

5.  The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations.  If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file.  

6.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.  

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

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



______________________________________________
MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs