Citation Nr: 1326587	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  10-44 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a right middle finger disability.

2.  Entitlement to service connection for a left shoulder disability.

3.  Entitlement to service connection for a low back disability.

4.  Entitlement to service connection for a right wrist disability.

5.  Entitlement to service connection for tinea.

6.  Entitlement to service connection for sinusitis.

7.  Entitlement to an initial compensable rating for hypertension.

8.  Entitlement to service connection for a left leg disability.

9.  Entitlement to service connection for a right leg disability.

10.  Entitlement to service connection for a right corneal scar.

11.  Entitlement to service connection for a left corneal scar.

12.  Entitlement to service connection for headaches.

13.  Entitlement to an initial compensable rating for benign leiomyomas.

14.  Entitlement to an initial compensable rating for post operative residuals of the removal of a Bartholin's cyst.


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from November 1988 to October 2008.

This matter comes before the Board of Veterans' Appeal (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

The issues of entitlement to service connection for bilateral corneal scars, bilateral leg disabilities, and headaches; and initial compensable ratings for benign leiomyomas and post operative residuals of the removal of a Bartholin's cyst are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  The Veteran served in the Southwest Asia Theater of operations from January 2004 to December 2004.

2.  Service treatment records show the Veteran's left shoulder, low back, right wrist, sinusitis, and tinea symptoms had onset many years prior to her service in the Southwest Asia Theater of Operations during the Persian Gulf War.

3.  The competent and probative evidence fails to reflect objective indications of a chronic left shoulder, low back, right wrist, sinusitis, or tinea disability.

4.  The Veteran is not currently diagnosed with left shoulder, low back, right wrist, sinusitis, or tinea disabilities, to include as residuals of any noted in-service left shoulder, low back, right wrist, upper respiratory or skin symptoms, injuries, or clinical findings.  

5.  A right finger injury was incurred during service in the Southwest Asia Theater of Operations; however, there currently are no objective indications of a current right finger disability, and no competent and probative evidence of a right finger disability, other than history of right jammed finger.

6.  Since the grant of service connection, the Veteran's hypertension has not manifested with diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or with a history of diastolic pressure predominantly 100 or more, despite her documented need for continuous medication for control.


CONCLUSIONS OF LAW

1.  A right middle finger disability was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

2.  A left shoulder disability was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

3.  A low back disability was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

4.  A right wrist disability was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

5.  Tinea was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

6.  Sinusitis was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012).

7.  Since the grant of service connection, the criteria for a compensable rating for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.104, Diagnostic Code 7101 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

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

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

As to all the issues on appeal, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  As to the service connection claims, the Board finds that a June 2008 letter provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra.  

As to the claim for a compensable rating for hypertension, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, supra, the Court also held that in cases where service connection has been granted and initial disability evaluations have been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id, at 490-91; See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  As the notice that the Veteran was provided before service connection was granted was legally sufficient (i.e., the June 2008 38 U.S.C.A. § 5103(a) notice letter provided to the Veteran prior to the February 2009 rating decision), VA's duty to notify in this case has been satisfied.  Even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letter and the rating decision and the statement of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

As to the duty to assist, the Board finds that as to all the issues on appeal VA has secured all available and identified pertinent service and post-service evidence.  The Veteran has not identified any post-service treatment records despite being asked to do so in the June 2008 VCAA letter.  Therefore, a remand to attempt to locate any such records is not required.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  

As to the service connection claims, the record shows that the Veteran was provided with a VA examination in August 2008 that is adequate to adjudicate the claims because, after a review of her medical records and after taking a detailed medical history from the claimant as well as after an examination, the examiner provided opinions as to her current diagnoses that were based on citation to relevant evidence found in the claims file.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007).  

As to the rating claim, the Veteran was provided a VA examination in August 2008 that the Board finds is adequate for rating purposes because after a comprehensive examinations of the claimant and after a review of her medical record on appeal the examiners provided an opinions as to the severity of her hypertension that allows the Board to rate it under all relevant Diagnostic Codes.  Id. 

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including any records found in virtual VA.  The Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including arthritis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In order to establish service connection for the claimed disability, there must be (1)  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).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317.  Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317(a)(1). 

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 

In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). 

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as 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.  A "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).

"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). 

Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b). 

For purposes of section 3.317, 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).

Compensation shall not be paid under 38 C.F.R. § 3.317 if (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). 

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Competent lay evidence is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d at 1377.

When the competent lay or medical evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 

With the above laws and regulations in mind, the Board will first look to see if the record contains a competent and credible diagnosis of a right middle finger, left shoulder, low back disability, right wrist, tinea, and/or sinusitis disability provided at any time during the pendency of the appeal.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; McClain, at 321.

The Veteran's service treatment records document a history of a finger injury requiring follow-up in a December 2004 post-deployment examination.  The finger that was injured was not identified.  A January 2005 service treatment record thereafter noted that X-rays were ordered for her right ring finger that was jammed while she was in Iraq.  The X-rays are not found in the claims file either because they were never taken or they were lost.  At a February 2008 examination, she complained of a fractured right middle finger.  At a July 2008 examination she reported that she injured her right middle finger of her right hand while deployed in 2004.

With respect to the claimed left shoulder disability, the Veteran's service treatment records document her complaints and treatment for left shoulder pain in June 1992.

With respect to the claimed low back disability, the Veteran's service treatment records dated from 1992 to 2007 document complaints and treatment for low back pain sometimes with pain radiating into a leg diagnosed as a mechanical low back pain or a strain.  See service treatment records dated in June 1992, September 1994, March 1995, November 1998, February 2006, October 2006, and March 2007.  The November 1998 service treatment record also noted that she had had a problem with low back strain since a motor vehicle accident.  At a July 2008 examination she complained of low back pain.

With respect to the claimed right wrist disability, a December 1998 service treatment record documents the Veteran's complaints and treatment for a wrist sprain following a fall.  The record does not identify which wrist was injured.  

With respect to the claimed tinea, the Veteran's service treatment records document her complaints and treatment for tinea corpus and thereafter ringworm from 1994 to 1995.  See service treatment records dated in July 1994, September 1994, and March 1995.

With respect to the claimed sinusitis, the Veteran's service treatment records document her complaints and treatment for an upper respiratory infection with pharyngitis in May 1991.  Thereafter, a February 1994 service treatment record documented her treatment for a cold.  At her December 2004 post-deployment examination, the Veteran reported being exposed to smoke from burning trash/feces and complained of a runny nose.  At a February 2008 examination, she complained of a constantly running nose.

Service treatment records also include a May 2002 Master Problem List and examination reports dated in February and March 2008.  On the Master Problem List, the Veteran reported that she had no known medical problems.  The February 2008 examination report did not indicate any problems were found with the Veteran's right middle finger, left shoulder, low back, and right wrist; no problems were found related to tinea or sinusitis either.  The examining clinician determined that the Veteran's sinuses, upper extremities, spine, and skin were all normal at that time.  The March 2008 examination report shows that the Veteran's back, musculoskeletal, and skin were all normal.  Except for a nasal discharge, no abnormalities of the nose were reported in March 2008.  

The Veteran underwent a VA examination in August 2008, just prior to her separation from active duty.  The express purpose of the examination was to ascertain whether she had current right middle finger, left shoulder, low back, right wrist, tinea or sinusitis disabilities- or whether there were any residuals from any documented complaints and treatment in service.  

The Veteran stated that she had been completely asymptomatic for left shoulder symptoms for over ten years.  She stated that she had not been bothered by low back pain at all.  She also reported that she had remained asymptomatic ever since two weeks after her right wrist injury in service.  The Veteran further stated that she had not experienced symptoms of sinusitis for more than 10 years, and had been totally asymptomatic.  With respect to tinea, the Veteran reported that she was treated for a rash in 1996, but following some weeks of treatment, the symptoms totally resolved and she had remained asymptomatic since.

Following the clinical interview, review of the record, and a comprehensive clinical examination, the examiner determined that the Veteran did not have any current disabilities of the right middle finger, left shoulder, low back, right wrist, tinea, or sinusitis.  The VA examiner specifically noted that the current examination was normal.  No clinical pathology was found with respect to the history of all of these conditions.  The pertinent diagnoses were history of a right jammed finger, resolved; history of long-resolved left shoulder pain; resolved or quiescent low back pain with no pathology; history of a long-resolved mild right wrist sprain; history of resolved ring worm; and history of sinusitis in the past, resolved.  

In the Veteran's June 2009 Notice of Disagreement, she reported that she still experienced low back and left shoulder pain, as well as sinus pain and pressure.  Although she discussed her in-service symptoms with regard to her right wrist, right finger, and tinea she did not report experiencing any symptoms at present or at any time during the appeal period.

Analysis

The Board will first consider service connection under a presumptive basis under §3.317, then on a presumptive basis under §§3.307 and 3.309, and finally on a direct basis.

Based on review of the competent and credible evidence of record, service connection for right middle finger, left shoulder, low back, right wrist, tinea and sinusitis disabilities is not warranted under §3.317.  By regulation there must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification to establish medically unexplained joint and/or muscle pain, skin symptoms, or headaches.  38 C.F.R. § 3.317.  For this reason, medically unexplained joint pain is not a simple medical condition that the Veteran can identify without having any medical training, education, or expertise.  Layno, at 469. 

Where, as here, there is a question of a diagnosis, not capable of lay observation, and a claimed disability is not a simple medication condition, the Veteran, as a lay person, is not competent to state that she has medically unexplained joint and/or muscle pain or medically unexplained skin symptoms.  Any statement of the Veteran to this effect is thus excluded or not admissible, that is, the statement is not to be considered as evidence in support of her claim.

The Veteran has not been diagnosed with, or shown to have, a qualifying chronic disability.  The August 2008 VA examination report, which shows that the Veteran denied current skin symptoms, headaches, and joint and/or muscle pain, supports a finding that she does not have an undiagnosed illness.  Notably, the Board does not find the Veteran's June 2009 report of low back and left shoulder pain and sinus pressure to be credible as it contradicts the statements she made to the VA examiner during the August 2008 VA examination.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  There also is no competent evidence of a medically unexplained chronic multisymptom illness (e.g. chronic fatigue syndrome, fibromyalgia or functional gastrointestinal disorders).  

Furthermore, the service treatment records show the Veteran's left shoulder, low back, right wrist, sinusitis, and tinea symptoms had onset many years prior to her service in the Southwest Asia Theater of Operations during the Persian Gulf War.  As a result, the Board finds that service connection for an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not warranted. 

Next, the Veteran does not contend, and the evidence of record does not otherwise show, that the Veteran had arthritis affecting her left shoulder, low back, right finger, or right wrist within one year of separation from service.  Thus, service connection for a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. 

Finally, entitlement to service connection on a direct basis is not warranted.  In reaching this conclusion, the Board finds that there is no competent and probative evidence showing that the Veteran currently has had a diagnosed right middle finger, left shoulder, low back, right wrist, tinea and sinusitis disability at any time during the pendency of this appeal.  A current disability is the cornerstone of any service connection claim.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997); see also, McClain, supra.  

The Board finds that the August 2008 VA examination findings, that the Veteran does not currently suffer from any chronic right middle finger, left shoulder, low back, right wrist, tinea or sinusitis disabilities, to be competent and persuasive.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).  The VA medical findings are not contradicted by any other competent medical evidence.  See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991).  There is no other pertinent medical evidence of record, such as VA and/or private treatment records, and the Veteran has not identified any outstanding medical records that are pertinent to the appeal.  

The Board acknowledges that the Veteran is both competent to report on what she can see and feel, such as pain in her right middle finger, left shoulder, low back, and right wrist; skin symptoms and sinus pain and pressure.  However, while the Veteran as a lay person is competent to report on these observable symptoms, a clinical diagnosis of a chronic right middle finger, left shoulder, low back, right wrist, tinea or sinusitis disability, requires not just observation of certain symptoms, but also specialized training to determined whether those symptoms are representative of any underlying chronic, degenerative and/or disease processes.  

In this case, the Veteran has not demonstrated that she possesses any medical training or expertise, such that she would be competent to render a persuasive or competent medical opinion on whether she currently has a chronic right middle finger, left shoulder, low back, right wrist, tinea or sinusitis disability.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Therefore, her unsupported lay assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection. 

The Court has held that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  In the absence of evidence of current right middle finger, left shoulder, low back, right wrist, tinea and sinusitis disabilities, service connection may not be awarded under any applicable regulation set forth in 38 C.F.R. § 3.3.303.

With respect to the claimed right finger, sinusitis and tinea disabilities, the competent medical evidence of record only reflects findings history of right jammed finger, resolved; history of sinusitis, resolved; and history of resolved ringworm.  These are known clinical diagnoses and the theory of an undiagnosed illness as the cause of chronic sinusitis or tinea under 38 C.F.R. § 3.317 does not apply.  And there is no competent evidence that any history of sinusitis or tinea is related to any exposure to possible environmental hazards in Southwest Asia. 

In the absence of evidence of current right middle finger, left shoulder, low back, right wrist, tinea and sinusitis disabilities for which service connection can be granted, the preponderance of the evidence is against the claim.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted.  38 U.S.C.A. § 5107(b).


Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board will also consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).  

The RO granted service connection for hypertension in a February 2009 rating decision and assigned a noncompensable rating effective from November 13, 2009, under 38 C.F.R. § 4.104, Diagnostic Code 7101.

Under 38 C.F.R. § 4.104, Diagnostic Code 7101, a 10 percent evaluation is warranted for hypertension if it is manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent evaluation is warranted for hypertension if it is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  Id.

Service treatment records reflect that the Veteran did not have a history of hypertension with diastolic pressure predominantly 100 or more.  

The only post-service blood pressure reading found in the record after service was taken at the August 2008 VA examination.  The Veteran's blood pressure was 111/61 at the examination.  The examiner noted that the Veteran took medication for her hypertension.  Thereafter, the examiner noted that since being diagnosed with hypertension in 2008 and started on medication, her subsequent follow-ups have shown her blood pressure to be overwhelmingly normal in the Tensive range.  The diagnosis was well-controlled essential hypertension.  This medical opinion is not contradicted by any other medical evidence of record.  Colvin, supra.  

Therefore, the Board finds that the most competent and credible evidence of record does not show that the Veteran's hypertension is manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more.  There are also is no history of diastolic pressure predominantly 100 or more, despite the Veteran's documented continuous use of medication for control, because at its worst hypertension was 111/61 with medication.  Accordingly, the Board finds that the criteria for a compensable rating for hypertension are not met.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.  This is true throughout at all times from November 13, 2009, and therefore a staged ratings is not warranted.  Fenderson, supra.

Lastly, the Board will consider the application of 38 C.F.R. § 3.321(b)(1) (2012).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the 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 extraschedular rating.

The evidence shows that the Veteran's service-connected hypertension has manifested with a history of diastolic pressure predominantly less than 100 or more and a need for medication; diastolic pressure predominantly less than 100 or more; and systolic pressure predominantly less than 160 or more.  The rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms.  The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected [whatever] disability is adequate, and referral is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).

In adjudicating the current appeal for a compensable evaluation, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability).  However, the Board finds that Rice is not applicable to the current appeal because the Veteran has never claimed that her hypertension prevents her from obtaining and/or maintaining employment.  Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU.

In adjudicating the current appeal, the Board has also considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application.  38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to service connection for a right middle finger disability is denied.

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for a right wrist disability is denied.

Entitlement to service connection for tinea is denied.

Entitlement to service connection for sinusitis is denied.

An initial compensable rating for hypertension is denied.

REMAND

As to the claims of service connection for bilateral leg disabilities, bilateral corneal scars, and headaches as well as the claims for initial compensable ratings for benign leiomyomas and post operative residuals of the removal of a Bartholin's cyst further development is needed.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The VA examiner did not provide an opinion as to whether the Veteran had any current bilateral leg disabilities and, if so, whether they were related to service including her documented complaints and treatment for bilateral ankle, foot, and arch pain diagnosed as ankle strains, pes planus, and plantar fasciitis while on active duty.  

The VA examiner did not provide an opinion as to whether the bilateral corneal scars he diagnosed at the examination were the natural consequence of the Veteran's in-service LASEK surgery or a further injury; and whether the photophobia noted in the service treatment records was a chronic disability caused by the LASEK surgery.  

The examiner did not provide an opinion as to whether the headaches he diagnosed was a chronic disability and, if so, whether they were related to service, including as a residual of the Veteran's LASEK surgery.   

With respect to the claims for initial compensable ratings for benign leiomyomas and post operative residuals of the removal of a Bartholin's cyst, the Veteran's disabilities are rated under 38 C.F.R. §  4.116, Diagnostic Code 7628 (2012) which provides that they are evaluated looking at the criteria for rating gynecological (Diagnostic Codes 7610 to 7629) and skin disorders (Diagnostic Codes 7801 to 7804).  

Finally, while the appeal is in remand status, obtain any outstanding, relevant treatment records.  38 U.S.C.A. § 5103A(b).  

Accordingly, these issues are REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC, after obtaining all needed authorizations from the Veteran, should obtain and associate with the claims file all of her post-October 2008 treatment records.  All actions to obtain the requested records should be documented fully in the claims file.

2.  After undertaking the above development to the extent possible, provide the Veteran with appropriate VA examinations.  The claims file must be provided to the examiner(s).  The examiner(s) is to clarify whether the Veteran has a current bilateral leg and/or headache disability.  

a) If a current bilateral leg is identified, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the bilateral leg disability and/or headache disability is related to service.  If arthritis of the legs is present, state whether is it at least as likely as not (50 percent probability or more) that it manifested within a year of service?

The examiner is advised that service treatment records show complaints and treatment for bilateral ankle, foot, and arch pain diagnosed as ankle strains, pes planus, and plantar fasciitis.  Further, the Veteran is competent and credible to report on the observable symptom of her disabilities in-service and since that time.

b).  If a chronic headache disability is identified, is it at least as likely as not that it was caused by service, to include the September 2003 LASEK surgery; or caused or aggravated by a service-connected disability?

The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  

3.  Provide the Veteran with a VA eye examination.  The claims file should be provided to the examiner in connection with the examination.  

a.  Is it at least as likely as not that bilateral corneal scarring noted by the March 2007 VA examiner is a superimposed injury caused by the Veteran's September 2003 LASEK surgery as opposed to the normal consequence of such surgery?

b.  Is it at least as likely as not that the Veteran has a chronic disability manifested by photophobia and, if so, if it is a superimposed injury caused by the Veteran's September 2003 LASEK surgery as opposed to the normal consequence of such surgery? 

The examiner is to comment on the Veteran's contention that she sustained further post operative scarring to her corneas following her September 2003 LASEK surgery do to the carelessness or negligence in the post operative removal of the lens that were placed to protect her eyes and service treatment records document post operative complaints of photophobia.

If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of the disorder (i.e., a baseline) before the onset of the aggravation. 

4.  Provide the Veteran with a VA gynecological examination to evaluate the current severity of her benign leiomyomas and post operative residuals of the removal of a Bartholin's cyst.  

A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion requested above.  

If the examiner(s) cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner(s) cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

5.  Thereafter readjudicate the claims.  The readjudication should consider whether the Veteran meets the criteria for a compensable rating under either the criteria for rating gynecological disorders and scars as well as consider whether staged ratings are warranted.  See 38 C.F.R. §§  4.116, 4.118, DCs 7620, 7801 to 7804; Fenderson, supra.

If any of the benefits sought on appeal remain denied, issue a supplemental statement of the case (SSOC) and return the appeal to the Board.

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



______________________________________________
D. JOHNSON
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs