Citation Nr: 1326557	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  08-33 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for an eye infection.

2.  Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a left wrist disability.

3.  Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a kidney condition.

4.  Entitlement to an initial rating higher than 10 percent for a left hip disability.

5.  Entitlement to an initial rating higher than 10 percent for hypertension.

6.  Entitlement to a compensable rating for anemia. 




REPRESENTATION

Appellant represented by:	Armed Forces Service Corporation


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from August 1980 to September 1992 and from October 1998 to July 2006. 

This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims on appeal.

The issues of entitlement to service connection for an eye disability, and whether new and material evidence has been received to reopen the previously denied claims for service connection for a left wrist disability and a kidney condition, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a May 1994 rating decision, the RO denied service connection for an eye infection.  The Veteran did not file a timely appeal. 

2.  The evidence added to the record since the last final decision in May 1994 is not cumulative of the evidence previously considered, contributes to a more complete picture of the Veteran's claim for service connection, and creates a reasonable possibility of an allowance of the claim. 

3.  Since August 1, 2006, when service connection became effective, the Veteran's left hip disability has been manifested by flexion greater than 30 degrees and abduction greater than 10 degrees.   

4.  Since August 1, 2006, when service connection became effective, the Veteran's hypertension has not been manifested by blood pressure readings of diastolic pressure predominantly 110 or more, or by systolic pressure predominantly 200 or more. 

5.  Since August 1, 2006, when service connection became effective, the Veteran's anemia has been asymptomatic with hemoglobin readings above 10gm/100ml.


CONCLUSIONS OF LAW

1.  The May 1994 rating decision that denied the claim for service connection for an eye infection is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  New and material evidence has been received to reopen the claim for service connection for an eye infection.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  The criteria for a rating in excess of 10 percent for a left hip disability are not met.  38 U.S.C.A. §§ 1155, 5103, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, DCs 5019, 5252 (2012). 

4.  The criteria for a rating in excess of 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 7101 (2012). 

5.  The criteria for a compensable evaluation for anemia have not been met.  38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.117, Diagnostic Code 7700 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for an eye infection is completely favorable, no further action is required to comply with the duties to notify and assist.  However, consideration of the merits of the issue is deferred pending additional development.

The issues regarding the left hip, hypertension and anemia arise from the Veteran's disagreement with the initial evaluations following the grants of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required. 

Relevant to the duty to assist, which is not abrogated by the granting of service connection, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide her pending appeal.  In this regard, since the date of claim, the RO received all available VA treatment records and those that were no longer available were noted to be unavailable.  The Board has also reviewed the Veteran's Virtual VA claims file and VBMS file, noting no additional records.  The Veteran has also been afforded VA examinations in November 2007 and March 2011 in order adjudicate her increased rating claims.  The Board finds these examinations to be adequate in order to evaluate the Veteran's hypertension, left hip disability, and anemia as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claims and no further examination is necessary. 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the duties to notify and assist would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claims. 

II.  Analysis

New and Material

The Veteran contends that her current eye infection or eye disability had its onset in service.

The RO denied the Veteran's claim in a May 1994 rating decision, finding that although there was an indication of excessive right eye swelling in July 1981, there was no indication of a chronic eye disability in service.  

Although in the February 2008 rating decision on appeal, the RO denied the Veteran's claim, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  If the Board finds that no such evidence has been offered, that is where the analysis must end.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 

A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1103 (2012).  The previous decision became final because the Veteran did not file a timely appeal. 

The claim for service connection may be reopened if new and material evidence is received.  Manio v. Derwinski, 1 Vet. App. 140 (1991).  The Veteran filed an application to reopen her claim in July 2007.  Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a)(2012).  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  

After a review of file, the Board finds that the evidence received since the last final decision in May 1994 is not cumulative of other evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating her claim. 
Newly received evidence includes a November 2007 VA examination which shows a diagnosis of gliosis, right eye.  However, the body of the report showed that there was gliosis over the nasal portion and center of the disc of the optic nerve of the left eye, rather than the right eye.  A review of the service treatment records shows that in February 2006, the Veteran reported a history of a scar on the left eye, and blurred vision.  The new diagnosis was not previously before VA.  Thus, the new evidence was not previously considered by agency decision makers, is not cumulative or redundant, and relates to an unestablished fact necessary to substantiate the claim.  Moreover, a nexus opinion is necessary to determine whether her current diagnosis was caused or aggravated be her service.  Therefore, the new diagnosis raises a reasonable possibility of substantiating the claim.  New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of an appellant's disability, even where it may not convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  Accordingly, the claim for service connection for an eye disability is reopened.  To that extent only, the appeal is allowed. 

Increased Ratings

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119  (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Left Hip Disability

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.  38 C.F.R. § 4.40 (2012). 

Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups.  38 C.F.R. § 4.14 (2012).  The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.  However, the Board notes that the provisions of 38 C.F.R. § 4.40 (2012) and 38 C.F.R. § 4.45 (2012) should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson  v. Brown, 9 Vet. App. 7 (1996). 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012). 
With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  38 C.F.R. § 4.45 (2012).  For the purpose of rating disability from arthritis, the hip is considered a major joint.  38 C.F.R. § 4.45 (2012). 

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis).  Diagnostic Code 5010 (traumatic arthritis) direct that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5010. 

The Veteran's left hip disability is currently rated under Diagnostic Codes 5252-5019.  38 C.F.R. § 4.71a, DCs 5019, 5252 (2012).  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012).  DC 5019 pertains to bursitis.  DC 5252 pertains to limitation of flexion of the thigh.  DC 5019 is to be rated as 5003, which pertains to arthritis as outlined above.  38 C.F.R. § 4.71a, DCs 5003, 5019 (2012).

The hip can be rated under Diagnostic Codes 5250-5255.  38 C.F.R. § 4.71a.  Assigning multiple ratings based on the same symptoms or manifestations would constitute prohibited pyramiding.  38 C.F.R. § 4.14.  However, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14.  Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions."  Estaban v. Brown, 6 Vet. App. 259 (1994).  Here the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip.  See 38 C.F.R. § 4.45.  If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected hip disability.  See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). 

Diagnostic Code 5252 provides for 10, 20, 30 and 40 percent evaluations where flexion of the thigh is limited to 45 degrees, 30 degrees, 20 degrees and 10 degrees, respectively.  Other applicable diagnostic codes include DC 5251, which provides for a 10 percent evaluation for extension of the thigh limited to five degrees DC 5253, which contemplates impairment of the thigh.  38 C.F.R. § 4.71a, DCs 5251, 5253 (2012).  DC 5253 provides for a 10 percent evaluation for limitation of rotation of the thigh of (cannot toe-out more than) 15 degrees, or limitation of adduction (cannot cross legs).  A 20 percent evaluation is warranted for limitation of adduction of the thigh where motion is lost beyond 10 degrees.

In considering the applicability of other diagnostic codes, the Board finds that DCs 5250 (ankylosis of the hip), 5254 (flail joint of the hip), and 5255 (impairment of the femur) are not applicable as there was no evidence of ankylosis, flail joint, or impairment of the femur on VA examination.  Accordingly, these diagnostic codes may not serve as the basis for an increased rating in this case. 

Turning to the evidence of record, on November 2007 VA examination, the Veteran reported flare-ups that occurred once a month that usually occurred when she stayed in one position for too long or laid on that side.  The pain was severe and would last for half an hour.  She took a pain reliever and anti-inflammatory which was effective most of the time.  In between flares, the hip did not hurt.  There was pain over the trochanter, however.  The flare-ups did not interfere with her occupation, as she had taken some time off of work due to a number of disabilities.  Examination of the left hip revealed mild tenderness over the left trochantric bursal area.  Range of motion of the hip showed flexion to 90 degrees with mild discomfort at 90, extension to 15 degrees with mild discomfort at 15, abduction to 45 degrees with slight discomfort at end of range of motion over the trochanter.  Repetitive motion caused the Veteran no change in range of motion from pain, fatigue, weakness, lack of endurance, or incoordination.  A left hip x-ray was unremarkable.  A left hip MRI was unremarkable. 

On March 2011 VA examination, the Veteran reported chronic left hip pain.  She reported having instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion.  She reported tenderness and weekly, severe flare-ups.  She was unable to stand for more than a few minutes and was able to walk only a quarter of a mile.  Physical examination showed an antalgic gait.  Range of motion testing showed flexion to 85 degrees, extension to 15 degrees, and abduction 35 degrees.  She was able to cross her left leg over her right and could toe out greater than 15 degrees.  There was no indication of pain or other limitation of function on repetitive motion.  The diagnosis was left hip bursitis.  The disability impacted her occupation function because of decreased concentration, decreased mobility, and pain.  It affected her chores, shopping, toileting, grooming, and driving to a severe degree.

In this case, the Board finds that a higher rating is not warranted for the Veteran's left hip disability.  For one, there was no indication on November 2007 VA examination that the Veteran has arthritis of the left hip, thus a higher rating is not warranted under 5019, which is rated under the criteria pertaining to arthritis.  Additionally, a higher rating is not warranted under DCs 5252 and 5253, as on both VA examinations, there was no indication of limitation of range of motion of the thigh limited to 30 degrees flexion or limited to 10 degrees abduction.  Lastly, as there is no indication of impairment of the femur, a higher rating is not warranted under DC 5255.  

The Veteran's left hip disability has been rated as 10 percent disabling for the entire appeal period under DC 5252.  The Board has determined that the Veteran is entitled to no more than a 10 percent disability rating under any of the rating criteria applicable.  Consideration has been given to the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App. 202.  In that regard, the Board has considered the Veteran's complaints of pain, especially on flare-ups, as well as all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to a rating greater than 10 percent.  Specifically, there is no indication that the Veteran's limitation of motion of the left hip on flare-ups results in limitation of flexion of the thigh at the hip to 30 degrees, or limitation of abduction of the thigh with motion lost beyond 10 degrees.  Rather, range of motion testing has shown no additional loss on repetitive testing and the treatment records are absent for findings of a more severe loss of range of motion on flare-ups.  Increased ratings would not be warranted under DC 5251 or 5253 and additional separate ratings for pain under those DCs would constitute pyramiding.  Moreover, the Board finds that the current 10 percent rating compensates the Veteran for the pain she experiences on flare-up, or that interferes with her daily activities, as she has shown extension greater than 5 degrees on both VA examinations.  Thus, she is already in receipt of a higher rating.  Accordingly, a rating higher than 10 percent for a left hip disability is not warranted.

Hypertension

The Veteran's hypertension is rated as 10 percent disabling under Diagnostic Code 7101, which pertains to hypertensive vascular disease (hypertension and isolated systolic hypertension). 

Diagnostic Code 7101 defines hypertension as diastolic blood pressure predominantly 90 or greater.  Isolated systolic hypertension is defined as systolic blood pressure predominately 160 or greater with a diastolic blood pressure of less than 90.  A 10 percent rating is warranted where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control.  A 20 percent rating may be assigned with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  Diastolic pressure of 120 or more is rated as 40 percent disabling, and a maximum 60 percent rating is warranted for diastolic pressure of 130 or more.  38 C.F.R. § 4.104, DC 7101 (2012).

Turning to the evidence of record, on November 2007 VA examination, the Veteran reported that she was diagnosed with hypertension in 2005.  She had no symptoms and took medication to control her blood pressure.  Her blood pressure on examination was 164/105, 138/88, and 159/100.  The diagnosis was hypertension.

On March 2011 VA examination, the Veteran reported being on three blood pressure medications which controlled her blood pressure.  Her blood pressure on examination was 130/81.  There were no complications related to high blood pressure.

The Veteran was assigned a 10 percent rating for his hypertension because she had a history of diastolic pressure of 100 or more and systolic pressure predominantly 160 or more and in order to lower her blood pressure, she uses continuous medication.  However, the evidence fails to indicate that during the period on appeal, she had diastolic blood pressure readings of predominantly 110 or more or systolic blood pressure readings of predominantly 200 or more which would warrant assignment of a 20 percent rating.  The evidence instead shows diastolic blood pressure readings which are all below 110 and systolic blood pressure readings which are all below 200, and the Veteran reported on 2011 VA examination that her blood pressure was controlled.  Therefore, a 20 percent rating is not warranted.  38 C.F.R. § 4.104, DC 7101 (2012). 

Anemia

The Veteran is noncompensably rated for anemia.  Under 38 C.F.R. § 4.117, Schedule of Ratings-Hemic and Lymphatic Systems, DC 7700 provides that anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia shall be rated as 0 percent disabling with Hemoglobin 10 gm/100ml or less, asymptomatic; 10 percent disabling with Hemoglobin 10 gm/100ml or less with findings such as weakness, easy fatigability or headaches; 30 percent disabling with Hemoglobin 8 gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath; 70 percent disabling with Hemoglobin 7 mg/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months); and 100 percent disabling with Hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 

A Note thereto indicates: Evaluate complications of pernicious anemia, such as dementia or peripheral neuropathy, separately.  38 C.F.R. § 4.117, DC 7700. 

Turning to the evidence of record, on November 2007 VA examination, the Veteran reported that she took iron supplements and had no related fatigability or weakness.  She denied headaches, infections, shortness of breath, or chest pain.  Her last diagnostic testing revealed a hemoglobin of 10.4 and 33.3 with a mean corpuscular volume of 62.9.  She took one iron tablet daily.  The diagnosis was iron-deficiency anemia.  

On March 2011 VA examination, the Veteran reported that her anemia had improved since service.  She continued to take an iron supplement.  There was no indication of syncope, dizziness, angina, fatigue, or dyspnea.  She reported claudication at rest.  The diagnosis was anemia.  Her hemoglobin was 14.4 grams.  

The record shows that any anemia present is stable with hemoglobin readings ranging from 10.4 to 14.4.  None of these studies demonstrated a reading of 10 gm or less, which is one of the requirements for a compensable rating.  In fact, on both VA examinations, the Veteran denied any symptoms related to anemia and such was controlled with iron supplements.  Accordingly, a compensable rating is not warranted.

III.  Other Considerations

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.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 

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.  In this regard, the Veteran has not claimed that she is unemployable due to her service-connected disabilities and was noted on both VA examinations to work full-time.  Therefore, a claim for TDIU has not been raised by the record. 

An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

The determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, it must be determined whether the schedular criteria reasonably describe the claimant's disability level and symptomatology.  If so, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.   

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left hip disability, hypertension, and anemia with the established criteria found in the rating schedule and finds the schedular criteria are adequate. 

The left hip disability is primarily manifested by limitation of motion due to pain.  Many of the applicable diagnostic codes used to rate that disability provide for a rating based on limitation of motion, and the effects of pain and functional impairment has been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  The schedular criteria for hypertension specifically contemplate the Veteran's reported symptoms in connection with diastolic and systolic pressures.  There are no hypertensive symptoms reported that are not considered by the schedular criteria.  There are higher ratings available under the diagnostic code for anemia, but the Veteran's disability is not productive of the manifestations that would warrant the higher ratings.  The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun, 22 Vet. App. at 111.

The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the weight of the credible evidence demonstrates that increased ratings for the Veteran's service-connected hypertension, anemia, and left hip disability are not warranted, as detailed above.  Because the preponderance of the evidence is against the claims, the claims must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

As new and material evidence sufficient to reopen a claim for service connection for eye disability has been received, the Veteran's previously-denied claim is reopened.

A rating in excess of 10 percent for a left hip disability is denied.

A rating in excess of 10 percent for hypertension is denied. 

A compensable rating for anemia is denied.


REMAND

Additional development is necessary prior to further disposition of the claim for service connection for an eye disability, and whether new and material evidence has been received to reopen the previously denied claims for service connection for a left wrist disability and a kidney condition.

With regard to the claim for service connection for an eye disability, service treatment records reflect that on July 1980 enlistment examination, the Veteran reported that her left eye watered.  In July 1981, she reported excessive tearing and swelling of the right eye, and blurry vision.  Slit lamp testing showed no abnormalities.  There were clear and open anterior chambers.  The impression was no abnormalities noted.  On June 1992 separation examination, it was noted that she had eye trouble, though no abnormalities on examination were found.  Other active duty service treatment records show that on a January 2004 eye examination, she had scar tissue on the left eye.  On February 2006 retirement examination, the Veteran reported blurred vision, scarring in the left eye, and glasses and cataracts since 1998.   Post-service records reflect that on November 2007 VA examination, there was a finding of gliosis over the nasal portion and center of the disc of the optic nerve on the left.  Both lenses showed trace nuclear scleroris.  The diagnoses were ON Gliosis, unknown etiology, OD, cataract, non-visually significant, and refractive error.  In light of this evidence, a VA examination and opinion is necessary to determine whether the Veteran's current eye disabilities were caused or aggravated by her service, or, in the case of her report that her left eye watered on entrance into service, whether she suffered from a disability that pre-existed her service that was or was not aggravated by her service.

With regard to whether new and material evidence has been received to reopen the previously denied claims for service connection for a left wrist disability and a kidney condition, there are specific notice requirements regarding claims to reopen for compliance by VA with its duty to notify a claimant for certain VA benefits.  Prior to the adjudication of a petition to reopen a service connection claim, the claimant be must be given notice of prior denials, the reasons therefor, and the elements of service connection and of new and material evidence.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  In this instance, the RO in its October 2007 correspondence did not  acknowledge the previous May 1994 rating decision in which claims for service connection for a left wrist disability and kidney condition were addressed on their merits, and the letter did not state reasons for the denials.  Remand for Kent compliance is needed. 

Accordingly, the case is REMANDED for the following action:

1. Provide to the Veteran written notice required by Kent as to her claims to reopen for service connection for a left wrist disability and a kidney condition, including notice of prior May 1994 rating decision, the reasons for the previous denial, and the elements of service connection and of new and material evidence. 

2.  Schedule the Veteran for a VA examination to ascertain the etiology of her eye disabilities.  The examiner should review the claims file.  All opinions should be accompanied by a clear and well-explained rationale. 

(a) Identify all current eye disabilities.  

(b) Does the evidence of record clearly and unmistakably show that the Veteran had an eye disability that existed prior to entry onto active duty (taking into consideration the Veteran's entrance examination when she reported blurred vision)?

(c) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting eye disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease?

Please identify any such evidence with specificity.

(d) If the answer to either (b) or (c) is no, is it at least as likely as not that the Veteran's eye disorder were etiologically related to any incident of active service, to include the reports of blurred vision, watery eyes, and scar of the left eye, and indication of cataracts?

3.  Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims.  If any benefit sought on appeal remains denied, provide the Veteran and her representative with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto.  Thereafter, return the case to the Board. 

The Board intimates no opinion as to the outcome of this case.  The appellant need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations. 

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

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).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs