Citation Nr: 1327651	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  07-38 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Jackson, Mississippi


THE ISSUES

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

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

3.  Entitlement to service connection for tuberculosis.

4.  Entitlement to service connection for carpal tunnel syndrome of the left hand.

5.  Entitlement to dental treatment.

6.  Entitlement to an initial rating in excess of 10 percent for hypertension.

7.  Entitlement to an initial rating in excess of 10 percent for arthritis of the right foot.

8.  Entitlement to an initial compensable rating for acne of the posterior trunk and abdomen.

9.  Entitlement to a compensable rating for status post-mastectomy of the left breast.

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from June 1979 to June 1982, from December 1990 to May 1991, from July 2004 to February 2006 and from August 2009 to June 2012.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2006, April 2007, April 2008, August 2008 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) Jackson, Mississippi.  

In February 2012, the Veteran testified at a hearing conducted before a Decision Review Officer; in April 2013, he testified at a hearing conducted before the undersigned Veterans Law Judge (VLJ).  Transcripts of both hearings have been associated with the claims file. 
The Veteran was previously represented by a state service organization.  In February 2013, the representative revoked their representation of the Veteran.  Accordingly, the Board considers the Veteran to be representing himself in this appeal.  

In February 2013, the Veteran indicated that he was satisfied with the grant of service connection for PTSD and the assignment of a 50 percent rating.  However, at his April 2013 hearing, he indicated that he wished to pursue his appeal for a higher rating.  Therefore, the Board considers this issue to remain on appeal and has listed it on the title page.  

During the course of this appeal, the Veteran has claimed service connection for many other issues.  In a May 2012 duty to assist letter, the RO informed the Veteran that they were working on those other claims.  It does not appear that those issues have yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them and the service connection issues identified in the May 2012 letter are referred to the AOJ for appropriate action. 

The issues of entitlement to dental treatment and a rating in excess of 50 percent for PTSD being remanded 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.  By an unappealed February 1983 rating decision, the RO denied service connection for pes planus.  

2.  Evidence received after the February 1983 denial relates to unestablished facts necessary to substantiate the claim of service connection for pes planus and raises a reasonable possibility of substantiating the underlying claim.

3.  By an unappealed August 2006 rating decision, the RO denied service connection for sinusitis.  

4.  Evidence received after the August 2006 denial relates to unestablished facts necessary to substantiate the claim of service connection for sinusitis and raises a reasonable possibility of substantiating the underlying claim.

5.  The Veteran has pes planus which is as likely as not related to his first period of active duty.

6.  The Veteran has sinusitis which is as likely as not related to his second period of active duty.

7.  The Veteran has not had active tuberculosis or disabling residuals at any time since filing his claim for compensation.

8.  Carpal tunnel syndrome of the left hand was not present during the Veteran's first three periods of service and the currently diagnosed carpal tunnel syndrome of the left hand did not develop as a result of any incident during his first three periods of service.

9.  Carpal tunnel syndrome of the left hand clearly and unmistakably preexisted the Veteran's last period of service and the carpal tunnel syndrome of the left hand clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the last period of service.

10.  The hypertension has not resulted in diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.

11.  The arthritis of the right foot has not resulted in moderately severe disability.

12.  The acne of the posterior trunk and abdomen does not affect at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected; and has not required intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.

13.  The status post-mastectomy of the left breast resulted in a scar not involving an area exceeding 6 square inches (39 sq. cm.) and was either deep or caused limited motion, was not a superficial scar which affected an area exceeding 144 square inches (39 sq. cm.), was not unstable or painful on examination, and did not cause limitation of function of the affected part.


CONCLUSIONS OF LAW

1.  The RO's February 1983 denial of service connection for pes planus final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012).  

2.  Evidence received since the final February 1983 rating decision is new and material.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).  

3.  The RO's August 2006 denial of service connection for sinusitis is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012).  

4.  Evidence received since the final August 2006 rating decision is new and material.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).  

5.  The criteria for service connection for pes planus are met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

6.  The criteria for service connection for sinusitis are met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

7.  Tuberculosis was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

8.  Carpal tunnel syndrome of the left hand was not incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

9.  The criteria for an initial rating in excess of 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.104 Diagnostic Code (DC) 7101 (2012).

10.  The criteria for an initial rating in excess of 10 percent for arthritis of the right foot have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5003, 5010, 5277, 5284 (2012).

11.  The criteria for an initial compensable rating for acne of the posterior trunk and abdomen have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118 Diagnostic Code (DC) 7806 (2012).

12.  The criteria for a compensable rating for status post-mastectomy of the left breast have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118 Diagnostic Codes (DCs) 7801, 7802, 7803, 7804, 7805 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In this case, the Board is reopening the claims for service connection for pes planus and sinusitis and is granting the issues of service connection for both disorders.  Consequently, the Board finds that any lack of notice and/or development cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

The Veteran was notified in letters dated in February 2006, April 2007, June 2007, February 2008, July 2008, July 2009, September 2009 and August 2010 regarding the type of evidence necessary to establish his claims.  He was instructed that to show entitlement to an increased evaluation for his service-connected disabilities, the evidence must show that the disability has gotten worse.  He was also instructed how to establish service connection.  The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  All of the letters except the February 2006 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In addition, the July 2009 letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  

The Board notes that the Veteran's claims for higher initial ratings for hypertension, arthritis of the right foot and acne of the posterior trunk and abdomen, arise from his disagreement with the initial ratings following the grants of service connection.  Courts have held that 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).  Regardless, all of the letters except for the February 2006 letter informed the Veteran of the criteria for assigning an effective date.  See Dingess/Hartman, 19 Vet. App. 473.  

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records, and also secured examinations in furtherance of his claims.  Pertinent VA examinations were obtained in April 2006 (feet, skin and sinuses), July 2007 (hypertension, skin and right foot), May 2008 (breast), August 2012 (skin, hypertension and feet); January 2013 (left hand, sinuses and feet) and February 2013 (skin).  38 C.F.R. § 3.159(c)(4).  The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders.  The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4). 

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.  In reaching this conclusion, the Board observes that the Veteran's Social Security Administration (SSA) records have not been obtained.  As discussed in detail below, the Board is remanding the issue of an increased rating for a psychiatric disorder to obtain these records.  As for the remaining issues on appeal, a copy of the September 2012 SSA decision awarding benefits is of record.  That decision shows that the Veteran is receiving SSA benefits due to cervical disc disease, depressive disorder and PTSD.  The Veteran has not identified these records as relevant to the issues being appealed and the Board has no reason to believe that they contain information pertinent to the issues being adjudicated.  Thus, the Board finds no basis for remand.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security Administration  records only if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). 

The Veteran was also provided with a hearing related to his present claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issues on appeal, but did not suggest the submission of any additional evidence.  This was not necessary, however, because the Veteran fully described why he believed service connection was warranted for pes planus, sinusitis, tuberculosis and carpal tunnel syndrome of the left hand.  He also fully described why higher ratings were warranted for hypertension, arthritis, acne, and his left breast.  The Veteran was also specifically queried regarding any treatment he was receiving; the Veteran identified receiving treatment from the VA and such records were already obtained by the RO.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

II.  Analysis

	A.  New and Material Evidence

A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC).  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012); 38 C.F.R. §§ 19.129, 19.192 (2012).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  

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.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  Barnett, supra.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is evidence not previously submitted to agency decision makers.  "Material" evidence is evidence that, by itself or when considered with 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 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).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

	1.  Pes Planus

Service connection for pes planus was denied in February 1983 because the evidence did not show that it was due to an in-service cold injury or that it was associated with a service-connected left foot disability.  In other words, evidence of record did not reflect a nexus between the Veteran's pes planus and his active service.  After receiving notice of the February 1983 decision, the Veteran did not initiate an appeal of the denial of this issue.  Later, in December 2007, however, he applied to have his claim reopened.

Here, relevant evidence of record at the time of the February 1983 rating decision consisted of the Veteran's STRs from his first period of active duty and a September 1982 VA examination.  The Veteran's STRs showed no diagnosis of, or treatment for, pes planus.  His May 1982 discharge examination revealed normal feet.  Although the Veteran reported foot trouble in his medical examination, he referred to frostbite; the Veteran is currently service connected for a left foot disability due to frostbite.  X-rays at the September 1982 VA examination showed pes planus.  No opinion regarding the etiology was provided.   

Accordingly, at the time of the denial of the claim for service connection for pes planus in February 1983, the claims folder contained no competent evidence of a nexus to the Veteran's military service.  Thus, the RO, in February 1983, denied service connection for pes planus.  The Veteran did not appeal the RO's decision, and that denial became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012).  

In reaching the conclusion that that decision is final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011).  In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362 (2012).  Here, no additional evidence pertinent to the issue of service connection for pes planus was received prior to the expiration of the appeal period.  The February 1983 rating decision is thus final.  

The relevant evidence received since the denial consists of STRs from the Veteran's other periods of active duty, VA treatment records dated through February 2013, VA examinations in April 2006 and January 2013 and the Veteran's contentions, including his testimony at the February 2012 and April 2013 hearings.  The Veteran's STRs include August 1995 and April 2000 examinations that showed pes planus; the Veteran was not on active duty in 1995 or 2000.  The April 2006 VA examiner found no evidence of flatfeet.  The Veteran's testimony at his February 2012 hearing indicates that his pes planus was associated with a cold-weather injury.  February 2012 Hearing Transcript (H.T.) at 6.  The Veteran was diagnosed with pes planus at the January 2013 VA examination; a negative nexus opinion was provided.  The Veteran testified at his April 2013 hearing that he had foot problems that began while stationed in Germany in 1980 or 1981.  April 2013 Hearing Transcript (T.) at 13.

The evidence of record obtained since the February 1983 rating decision shows that the Veteran had a diagnosis of pes planus in addition to his reports of the onset of his pes planus being in service.  Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for pes planus; namely a current diagnosis and a reported onset during service.  In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a claimant's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a claimant's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id.  See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).  

Therefore, in consideration of Shade, since the Veteran has reported that the onset of his pes planus was in service, in addition to a current diagnosis of pes planus, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim.  Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim.  As discussed below, the Board is granting service connection for the underlying issue.  

		2.  Sinusitis

Service connection for sinusitis was denied in August 2006 because the evidence showed that it preexisted his third period of active duty and was not aggravated by that period of service.  In other words, evidence of record did not reflect a nexus between the Veteran's sinusitis and his active service.  After receiving notice of the August 2006 decision, the Veteran did not initiate an appeal of the denial of this issue.  Later, in July 2007, however, he applied to have his claim reopened.  

Here, relevant evidence of record at the time of the August 2006 rating decision consisted of the Veteran's STRs from his first two periods of active duty and an April 2006 VA examination.  The Veteran's STRs included April 1991, August 1995 and April 2000 reports of medical history, which reveals that he answered yes to symptoms such as sinusitis.  He was treated for sinus problems in November 2002, August 2005, October 2005 and January 2006.  His STRs did not show the onset of chronic sinusitis during a period of active duty, nor did they show that preexisting sinusitis was aggravated by a period of active duty.  He had normal sinuses on examination in April 2006.  The examiner diagnosed the Veteran with severe deviation of the nasal septum to the left side and also chronic vasomotor rhinitis. 

Accordingly, at the time of the denial of the claim for service connection for sinusitis in August 2006, the claims folder contained no competent evidence of a nexus to the Veteran's military service.  Thus, the RO, in August 2006, denied service connection for sinusitis.  The Veteran did not appeal the RO's decision, and that denial became final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103.  

In reaching the conclusion that that decision is final, the Board is cognizant of the holding in Bond, 659 F.3d 1362.  Here, within the pertinent appeal period, the Veteran submitted a new claim for sinusitis in July 2007; there is nothing in that statement to indicate disagreement with the August 2006 rating decision.  The Board notes that the Veteran filed a timely notice of disagreement to other issues decided in August 2006, which was received by the RO in May 2007; sinusitis was not listed in that notice of disagreement.  The Veteran's new claim in July 2007 was new, but not material as it did not tend to show a nexus to his military service.  VA treatment records received within one year of the August 2006 rating decision did not show any opinion relating sinusitis to the Veteran's military service.  Therefore, while new, it was also not material.  The August 2006 rating decision is thus final.  

The relevant evidence received since the denial consists of STRs from the Veteran's final period of active duty, VA treatment records dated through February 2013, a VA examination in January 2013 and the Veteran's contentions, including his testimony at the February 2012 and April 2013 hearings.  Records in February 2011 and July 2011 during the Veteran's active duty show treatment for sinusitis.  The January 2013 VA examiner opined that there were no clinical findings of sinusitis or rhinitis; the examiner knew of no way that they could relate current totally normal findings as caused or aggravated by any active duty military service.  At his February 2012 and April 2013 hearings, the Veteran testified that he did not have sinus problems until training in the California desert.  February 2012 H.T. at 8; April 2013 T. at 15.  
The evidence of record obtained since the August 2006 rating decision shows that the Veteran had sinusitis during his last period of active duty.  Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for sinusitis; namely evidence that preexisting sinusitis may have been aggravated by his final period of service.  Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim.  Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim.  As discussed below, the Board is granting service connection for the underlying issue.  

      B.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Certain chronic diseases (e.g., active tuberculosis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within three years of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012).

The Board notes that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131.  In the absence of proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111.  Thus, veterans are presumed to have entered service in sound condition as to their health.  This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. at (b)(1).

Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness.  However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111.  See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003).  Pursuant to these developments, it is now clear that, in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service.  See 38 C.F.R. § 3.304 (b) (2012).  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  VAOPGCPREC 3-2003 (July 16, 2003).

Before these above cited precedent opinions, VAOPGCPREC 3-2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service.  If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service.  Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard).

A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

		1.  Pes Planus

The Veteran contends that he has pes planus that was incurred during his military service.  Specifically, he contends that his pes planus began during his first period of active duty.  See, e.g., April 2013 T. at 13.

The Board has conducted a careful review of the record, and concludes that the record is supportive of a finding that the Veteran has pes planus that was incurred in his military service.  Specifically, the evidence shows that the Veteran has pes planus that began during his first period of active duty and has continued since then.  

A review of the Veteran's STRs from his first period of service shows no treatment for, or diagnosis of, pes planus.  The Veteran's January 1979 entrance examination May 1982 discharge examination both showed normal feet.  In his May 1982 report of medical history, he answered yes to foot trouble and reported a frostbite injury.  As noted above, the Veteran is currently service connected for a left foot disability due to his injury.  

The Veteran was afforded a VA examination in September 1982.  Although the report of physical examination does not show pes planus, X-rays showed flattening of the longitudinal arches of both feet consistent with pes planus.  No opinion regarding the etiology was provided.   

STRs from his second period of service show no treatment for, or diagnosis of, pes planus.  However, X-rays at a VA examination in December 1994 showed a diminished longitudinal plantar arch of both feet.  His STRs from his reserve service show diagnoses of pes planus in August 1995 and April 2000, between his second and third periods of active duty.  

A VA examination in January 2013 shows that the Veteran currently has pes planus.  The examiner opined that the claimed condition was less likely than not incurred or caused by the claimed in-service injury, event or illness.  The rationale was that the examiner could find no medical documentation in the STRs that the Veteran was diagnosed or treated for flat feet in service.  As this opinion does not address the finding of pes planus in September 1982, less than six months after the Veteran was discharged from service in May 1982, the Board finds that it lacks probative value.  

In this case, the Veteran has consistently reported having foot problems during his first period of active duty.  Although the Veteran is service-connected for a left foot disability from a frostbite injury incurred during his first period of service, the Veteran's contentions have not necessarily limited his reported complaints to those associated with the frostbite injury versus pes planus.  When affording the Veteran the benefit-of-the-doubt, the Board concludes that the onset of the Veteran's current pes planus began during his first period of active duty ending in May 1982.  While the Veteran's STRs from that period of service do not show pes planus, X-rays of the Veteran's feet in September 1982, less than six months after he was discharged, revealed pes planus.  The Veteran has not reported incurring a bilateral foot injury between his discharge in May 1982 and the first showing of pes planus in September 1982.  The close proximity in time between the first diagnosis of pes planus and the Veteran's first period of active duty weighs in favor of a finding that the pes planus began in service.

Although pes planus is not listed as a chronic illness in 38 C.F.R. § 3.309(a), the Board has considered his statements that the onset of pes planus began during service to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d).  The Veteran's statements regarding the onset of his disability are supported by the September 1982 X-rays showing pes planus.  

Therefore, in considering the Veteran's competent and credible reports of the onset of pes planus beginning in service, a continuity of pes planus since his first period of service, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has pes planus that is related to his service.  The evidence is in favor of the grant of service connection for pes planus.  Service connection for pes planus is granted.  38 U.S.C.A §5107 (West 2002 & Supp. 2012).

		2.  Sinusitis

The Veteran contends that he has sinusitis that was incurred during his military service.  Specifically, he contends that his sinusitis began after training in the desert.  See, e.g., April 2013 T. at 15.

The Board has conducted a careful review of the record, and concludes that the record is supportive of a finding that the Veteran has sinusitis that was incurred in his military service.  Specifically, the evidence shows that the Veteran has sinusitis that began during his second period of active duty and has continued since then.  

A review of the Veteran's STRs from his first period of service shows no treatment for, or diagnosis of, sinusitis.  The Veteran's January 1979 entrance examination May 1982 discharge examination both showed normal sinuses.  In both of his reports of medical history, he denied sinusitis.  An April 1986 periodic examination, not during a period of active duty, shows that the Veteran had normal sinuses.  

Reports of medical examinations during the Veteran's second period of active duty in April 1990 and April 1991 show that the Veteran denied sinusitis in April 1990, but answered yes to sinusitis in April 1991.  However, the April 1991 examination showed normal sinuses.  A periodic examination in August 1995, during his reserve service, shows that the Veteran had normal sinuses; he again reported sinusitis in his report of medical history.  August 1995 and April 2000 examinations during his reserve service revealed normal sinuses; in both of his reports of medical examination, the Veteran answered yes to sinusitis.  The Veteran was treated for sinusitis in November 2002.  An annual medical certificate in February 2003 and a report of medical assessment in June 2003 show that the Veteran reported sinus congestion and sinusitis, respectively.  

During his third period of active duty, the Veteran was treated for sinusitis in August 2005.  In October 2005, he was treated for an acute exacerbation of chronic rhinosinusitis and was again treated for sinusitis in January 2006.  The Veteran had sinus surgery in July 2008.  The Veteran was also treated for sinusitis during his final period active duty.  Treatment records during this period show sinusitis in March 2010, October 2010, February 2011 and July 2011.  Although a VA examination in January 2013 included normal X-rays, the examination report reflects a diagnosis of sinusitis.  The examiner opined that the Veteran's sinus problem was apparently cured by his surgery.  

In this case, the Veteran reported having sinusitis in his April 1991 report of medical examination during his second period of active duty.  As reflected above, the Veteran's treatment records since then have shown repeated treatment for sinusitis as well as reports of sinusitis.  When affording the Veteran the benefit-of-the-doubt, the Board concludes that the onset of the Veteran's current sinusitis began during his second period of active duty ending in May 1991.

Although sinusitis is not listed as a chronic illness in 38 C.F.R. § 3.309(a), the Board has considered his statements that the onset of sinusitis began during service to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d).  The Veteran's statements regarding the onset of his disability are supported by his STRs showing that he reported sinusitis in his April 1991 discharge report of examination.  

Therefore, in considering the Veteran's competent and credible reports of the onset of sinusitis beginning in service, a continuity of sinusitis since his second period of service, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has sinusitis that is related to his service.  The evidence is in favor of the grant of service connection for sinusitis.  Service connection for sinusitis is granted.  38 U.S.C.A §5107.  

		3.  Tuberculosis

The Veteran contends that he has tuberculosis that was incurred during his military service.  See, e.g., T. at 3.  

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran has current tuberculosis.  In this case, no competent medical evidence has been presented to show that the Veteran has current diagnosis of tuberculosis that was incurred in service.  

The Veteran's service records show a positive tuberculosis test in July 2004.  He was referred to the state health department in January 2006 for evaluation/treatment of latent tuberculosis.  X-rays at that time were normal and lung fields were clear.  X-rays of the chest in August 2009 and June 2010 both revealed clear lungs.  A record dated in June 2010 shows that he had a positive purified protein derivative (PPD) nonspecific reaction without active tuberculosis.  A Medical Evaluation Board in December 2011 and a Physical Evaluation Board in February 2012 showed several diagnoses, but not tuberculosis.  Although the Veteran STRs reflect a positive tuberculosis test, none of them indicate that he had active tuberculosis.  Chest X-rays repeatedly showed clear lungs; there is no indication that he was ever diagnosed with active tuberculosis in service.  

Post-service treatment records do not reflect active tuberculosis.  Chest X-rays repeatedly failed to show active tuberculosis.  At his February 2012 DRO hearing, the Veteran specifically testified that he had no diagnosis of tuberculosis.  H.T. at 3.  As such, the Board concludes that the evidence of record does not show the presence of current tuberculosis or disabling residuals.  

Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The Court held that symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.)

The Board has considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim.  The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed disability during that time frame.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of tuberculosis falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer).  The Veteran's own assertions as to diagnosis have no probative value.

Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of a tuberculosis disability.  See 38 U.S.C.A. §§ 1110, 1131; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for tuberculosis.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for tuberculosis is denied.  See 38 U.S.C.A §5107.

		4.  Carpal Tunnel Syndrome of the Left Hand

The Veteran contends that he has carpal tunnel syndrome of the left hand that was incurred during his military service.  See, e.g., T. at 6, 9.  The Veteran has not contended incurring any specific injury to his left hand, but has indicated that his symptomatology began in service.  

After reviewing the evidence of record, the Board concludes that service connection for carpal tunnel syndrome of the left hand is not warranted.  Specifically, the evidence shows that it was incurred prior to his final period of active service and was not aggravated by that service.  

The Veteran's STRs do not reveal any complaint of, or treatment for, carpal tunnel syndrome of the left hand or any other left hand disorders.  During this first three periods of service, examinations in January 1979, May 1982, April 1986, April 1991, August 1995 and April 2000 all revealed clinically normal upper extremities.  The January 1979, May 1982, April 1986, April 1990, April 1991, August 1995 and April 2000 reports of medical examinations all show that the Veteran denied symptoms such as neuritis or nerve injury.  December 2005 and January 2006 post-deployment health assessments show that the Veteran answered yes to having "numbness or tingling in his hands or feet" during his deployment.  He did not indicate whether such complaints were for his right hand, left hand or his feet.  There is no indication that he incurred any event, injury or disease to his left hand or wrist during these periods of active duty.  There is no diagnosis of carpal tunnel syndrome in these records.

The totality of the evidence fails to show that the onset of any current carpal tunnel syndrome of the left hand occurred during the Veteran's first three periods of service.  Although the Veteran reported numbness or tingling in December 2005 and January 2006, he did not specify whether such symptoms pertained to his left hand.  Furthermore, as discussed below, treatment records beginning in July 2007 shows that he reported only a one month history of left hand symptomatology; he did not indicate that the onset of his disability occurred during service in those records.  No medical professional has reported that the onset of any current carpal tunnel syndrome of the left hand began during the Veteran's first three periods of active military service.  The only medical opinion of record, that of a January 2013 VA examiner, shows that the Veteran's carpal tunnel syndrome is not related to his service.  The Board will discuss this examiner's opinion in more detail below.  In sum, there is no nexus evidence relating any currently diagnosed carpal tunnel syndrome of the left hand to the Veteran's first three periods of active service.  Accordingly, the evidence does not support a finding that the Veteran's carpal tunnel syndrome of the left hand is the result of his first three periods of service.  

Rather, the evidence showed that the Veteran's carpal tunnel syndrome of the left hand was incurred between his third and final periods of active duty.  The pertinent evidence of record shows that his carpal tunnel syndrome of the left hand preexisted his final period of active service beginning in August 2009.  VA treatment records beginning in September 2006 after his third period of duty do not show left hand complaints until July 2009.  In July 2007, the Veteran reported "throbbing, tingling and trouble lifting things with the left hand for approximately one month."  A VA treatment record in October 2007 shows that the Veteran was diagnosed with carpal tunnel syndrome confirmed by EMG findings.  No opinion relating the Veteran's carpal tunnel syndrome to his first three periods of service was provided.  A March 2010 report of medical assessment shows that the Veteran reported that his left hand "cramped up real bad."

In this case, the Board finds that the presumption of soundness has been rebutted by clear and unmistakable evidence that the Veteran had carpal tunnel syndrome of the left hand prior to his final period of active service.  Considering the treatment records clearly showing a diagnosis of carpal tunnel syndrome of the left hand in 2007, prior to his last period of active duty beginning in 2009, the Board concludes that clear and unmistakable evidence has been presented sufficient to rebut the presumption of soundness for the Veteran's final period of active duty.  
The evidence also shows that the Veteran's carpal tunnel syndrome of the left hand clearly and unmistakably was not worsened during his second period of active duty.  The Veteran was afforded a VA examination in January 2013.  He was diagnosed with carpal tunnel syndrome with an onset of October 2007.  The Veteran reported that he was diagnosed in October 2007, but that he first developed symptoms around 2006 while in Iraq.  The examiner noted that the Veteran's STRs did not reflect complaints of numbness, parasthesias or left wrist pain while in service in 2006.  The examiner also noted the Veteran being seen for left upper extremity carpal tunnel syndrome while in the last period of active service between August 2009 and June 2012.  Following examination, the examiner opined that since the Veteran's STRs prior to 2007 did not reflect any complaint, diagnosis or treatment for carpal tunnel syndrome during service, it was less likely as not that the Veteran's claimed left carpal tunnel syndrome was service-related.  The examiner further opined that worsening may occur as a normal progression of the disease without appropriate intervention (Veteran declined surgery in 2008).

The pertinent medical evidence that has been presented shows a current diagnosis of carpal tunnel syndrome of the left hand; however, the evidence does not contain a medical opinion indicating that the Veteran's preexisting carpal tunnel syndrome was aggravated by his final period of active duty.  The only medical opinion provided regarding whether the Veteran's preexisting carpal tunnel syndrome was aggravated by his final period of service is that of the January 2013 VA examiner, which weighs against the claim.  No medical professional has provided any opinion to indicate that the Veteran's carpal tunnel syndrome was aggravated by his final period of active duty.

The probative medical evidence simply fails to adequately establish any nexus between current carpal tunnel syndrome of the left hand and the Veteran's periods of service.  Without competent evidence of an association between carpal tunnel syndrome of the left hand and his active duty, service connection for carpal tunnel syndrome of the left hand is not warranted.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of carpal tunnel syndrome of the left hand falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

In summary, carpal tunnel syndrome of the left hand was not present during the Veteran's first three periods of service and the currently diagnosed carpal tunnel syndrome of the left hand did not develop as a result of any incident during his first three period of service.  Carpal tunnel syndrome of the left hand clearly and unmistakably preexisted the Veteran's final period of service and the carpal tunnel syndrome of the left hand clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the fourth period of service.  Accordingly, the Board concludes that carpal tunnel syndrome of the left hand was not incurred or aggravated in service.  

      C.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  Where there is a question as to which of two ratings should 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.  

The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App 505 (2007).  As discussed in detail below, the Board concludes that staged ratings are not warranted.

		1.  Hypertension 

In this case, the Veteran has been diagnosed with hypertension.  This service-connected disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.104, DC 7101, which evaluates impairment from hypertensive vascular disease (hypertension and isolated systolic hypertension).  

Pursuant to DC 7101, a 10 percent rating is warranted for diastolic blood pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  § 4.104, DC 7101 (2012).

A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.  Id.  A 40 percent rating is warranted for diastolic pressure predominantly 120 or more.  Id.  A 60 percent rating is warranted for diastolic pressure predominantly 130 or more.  Id.  

Based on a review of the evidence, the Board concludes that an initial rating in excess of 10 percent is not warranted at any time since the award of service connection.  

The Veteran's pertinent treatment records and VA examinations fail to show that his diastolic pressure is predominantly 110 or more or that his systolic pressure is predominantly 200 or more.  The Board has reviewed the Veteran's voluminous records and of those that show his blood pressure readings, the evidence fails to show that such readings meet the criteria for a 20 percent rating.  

While a March 2007 record indicates that the Veteran's hypertension was poorly controlled, a July 2007 VA examination shows that the Veteran's hypertension was asymptomatic.  His blood pressure readings at that time were 139/76, 120/70 and 130/70.  Treatment records dated in April 2010 and October 2010 show that it was under good control.  

An August 2012 VA examination revealed that the Veteran had blood pressure readings of 130/69 and 110/70.  The examiner opined that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more.  At his  April 2013 hearing, the Veteran specifically testified that he checked his blood pressure at home and that the readings were normal.  T. at 20.  He testified that he took his medication every day.  Id. at 19.

As the evidence fails to show that the Veteran's diastolic pressure is predominantly 110 or more or that his systolic pressure is predominantly 200 or more, the Board finds that the criteria for an initial rating in excess of 10 percent is not warranted at any time since the award of service connection.

		2.  Arthritis of the Right Foot

In this case, the Veteran has been diagnosed with arthritis of the right foot.  This service-connected disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5010-5277.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012). 

DC 5010 evaluates impairment from arthritis due to trauma that is substantiated by X-ray findings.  DC 5010 calls for the disability to be rated as degenerative arthritis.  38 C.F.R. § 4.71a, DC 5010 (2012).  Degenerative arthritis is evaluated under 38 C.F.R. § 4.71a, DC 5003.

Pursuant to DC 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling.  The 20 percent and 10 percent ratings based on X-ray findings without limitation of motion will not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, DC 5003 (2012).  The ankle is considered a major joint, while the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints, ratable on a parity with major joints.  38 C.F.R. § 4.45(f). 

DC 5277 evaluates impairment from bilateral weak foot.  The only rating available under DC 5277 is 10 percent.  38 C.F.R. § 4.71a, DC 5277 (2012).  

Other foot injuries are rated under DC 5284.  Pursuant to DC 5284, a 10 percent rating is warranted for moderate disability.  38 C.F.R. § 4.71a, DC 5284 (2012).  A 20 percent rating is warranted for moderately severe disability.  Id.  A 30 percent rating is warranted for severe disability.  Id.  

Based on a review of the evidence, the Board concludes that an initial rating in excess of 10 percent is not warranted at any time since the award of service connection.  

As the Veteran is receiving the only rating available under DC 5277, the Board has considered whether other diagnostic codes would provide for a higher rating.  The Veteran's pertinent treatment records and VA examinations fail to show involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations in the absence of limitation of motion, which is warranted for a 20 percent rating under DC 5010.  

The evidence also does not show that his arthritis results in moderately severe disability, required for a 20 percent rating under DC 5284.  As "moderately severe" is not defined in the rating criteria, a review of what warrants an increased rating of 20 percent for unilateral foot disabilities under other diagnostic codes is particularly instructive.  For a 20 percent rating for unilateral flatfoot, the disability must be severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, characteristic callosities.  A 20 percent rating for unilateral acquired claw foot (pes cavus) requires all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  38 C.F.R. § 4.71a, DCs 5276, 5278(2012).  The pertinent medical findings shown during this appeal fail to show that the Veteran has such symptoms.  

The April 2006 VA examination shows that the Veteran denied using any special shoe, orthotic device or other assistive devices and denied any restriction in walking.  He was not restricted from doing his chores at home.  The Veteran was independent in activities of daily living, transfers and ambulation.  Examination revealed no deformity or swelling, calluses, point of tenderness or restriction in range of motion.  He was able to squat and rise without assistance and walk on heels/toes without loss of balance or support.  There was no pain or discomfort with the extension of legs.  DeLuca factors could not be clearly delineated.  During flare-ups, the Veteran could have further limitations in range of motion and amount of pain in functional capacity, but the examiner was unable to estimate the additional loss of range of motion and amount of pain in functional capacity during a flare-up without resorting to mere speculation.  Endurance could also be limited during acute exacerbations.  Coordination was a central nervous system function.  Fatigue was a subjective complaint and he did not offer any complaints of fatigue.  The examiner could detect no objective evidence of weakness, incoordination, fatigue or lack of endurance.  

At a July 2007 VA examination, the Veteran reported discomfort and pain, with pain rated as zero on a scale of one to ten (0/10) to flare-up pain of 7/10.  Usually flare-up pain occurred once a week due to prolonged standing/walking.  He wore no special or corrective shoes and had no special arch supports.  Pain lasted about one to one and a half hours.  Associated symptoms included weakness in his ankle, stiffness in the foot and swelling of the foot at times, but it did not give way or lock-up.  His pain did interfere with his work at times, but not enough to incapacitate him.  He was independent in all basic activities of daily living.  

Physical examination showed no evidence of painful motion, edema, instability or weakness.  Slight tenderness was noted at the first metatarsophalangeal joint.  Gait pattern was normal.  He was able to stand on his toes/heels and walk on them without difficulty.  There was no abnormal callus or breakdown noted; inspection of shoes shown no abnormal shoe wear.  There was no evidence of hammer toe, claw foot or flatfoot; arch was normal.  Examination of the right great toe revealed evidence of valgus deviation at the first metatarsophalangeal joint measuring 20 degrees of angulation.  Dorsiflexion of the metatarsophalangeal joints measured 45 degrees of flexion and extension was limited at 15 degrees.  For comparison, the valgus deviation was noted on the left great toe, first metatarsophalangeal joint measuring 22 degrees.  Again, the range of motion of the left metatarsophalangeal joint measured dorsiflexion of 50 degrees and extension of 15 degrees.  The rest of the ranges of motion of the toes of both feet were within normal limits.  He experienced discomfort at the extremes of range passively on the first metatarsophalangeal join on both the right and left as exhibited by muscle guarding.  There was no evidence of pain/tenderness along the plantar fascia on either foot.  Repetitive motion of all joints tested failed to show any change in range.  Functionally, the Veteran was independent in all basic activities of daily living skills.  Any physically exerting activity to the right foot would most likely provoke flare-up pain, but should not limit him from any occupational opportunity.  

A May 2008 VA examination for cold residual injuries of the feet show that he had mild arthritic change.  The Veteran's STRs from his period of active duty from August 2009 to June 2012 do not show symptoms equating to those contemplated for by 20 percent ratings under DCs 5276, 5278.  

An August 2012 VA examination reveals that the Veteran reported increased symptoms of burning, cramping and sharp pain with numbness and tingling.  During his 2009 deployment, he had difficulty walking with wearing military combat boots and was placed in sneakers with permanent profile of no wearing military boots, only sneakers.  As the examiner found that the Veteran did not have pes cavus, no symptoms associated with that disability were shown on examination.  The Veteran occasionally used shoe orthotics.  A January 2013 VA examination reveals that the Veteran was diagnosed with pes planus; symptoms associated with that disability were shown.  However, as the examination fails to show that such symptomatology resulted from the Veteran's arthritis of the right foot, it cannot be used to support a higher rating.

The pertinent medical findings shown during this appeal fail to show that the Veteran has symptoms due to his arthritis such as those contemplated for by 20 percent ratings under DCs 5276 and 5278.  In other words, although "moderately severe" is not defined, as the Veteran's arthritis of the right foot has not caused symptoms that would warrant a higher rating under diagnostic codes that list symptoms indicative of 20 percent ratings for unilateral foot disabilities, the Board concludes that a rating of 20 percent rating is not warranted.
 
As for other diagnostic codes used to evaluate foot disabilities, the evidence fails to show that the Veteran's arthritis resulted in malunion or nonunion of the tarsal or metatarsal bones.  Therefore, a 20 percent rating under DC 5283 is not warranted.  38 C.F.R. § 4.71a, DC 5283 (2012).

In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating under all of the diagnostic codes use to evaluate foot disabilities, based on limitation of motion is not warranted.  See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like).  None of the VA treatment records or examinations shows that the Veteran had evidence of disuse such as muscle atrophy.  The July 2007 examination shows that there was no abnormal callus or breakdown noted; inspection of shoes showed no abnormal shoe wear.  The other examinations did not indicate any symptoms indicative of disuse of the feet.  Furthermore, the April 2006 and July 2007 examiners opined as to the functional impairment caused by the Veteran's right foot disability, which as discussed above, is adequately compensated for in the currently assigned 10 percent rating.  Accordingly, the criteria for a rating in excess of 10 percent have not been met.  38 C.F.R. § 4.71a, DCs 5010, 5277, 5284.

For these reasons, the Board finds that the criteria for an initial rating in excess of 10 percent for arthritis of the right foot have not been met at any time since the award of service connection.

		3.  Acne

In this case, the Veteran has been diagnosed with acne of the posterior trunk and abdomen.  This service-connected disability is currently rated as zero percent or noncompensably disabling under 38 C.F.R. § 4.118, DC 7806, which evaluates impairment from dermatitis or eczema.  

Pursuant to DC 7806, a 10 percent rating requires that at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  38 C.F.R. § 4.118, DC 7806 (2012).  

A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  Id.

A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  Id. 

DC 7806 also provides for the disability to be rated as disfigurement of the head, face, or neck (DC 7800) or as scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.  Id. 

In this case, there is no evidence of scarring warranting a compensable rating under the applicable diagnostic codes associated with the service-connected skin disorder, so DCs 7801, 7802, 7803, 7804 and 7805 are not for consideration.  With respect to DC 7800, the evidence fails to show that the Veteran's skin disorder meets any of the eight characteristics of disfigurement enumerated under that diagnostic code.  Under note (1), the 8 characteristics of disfigurement for purposes of evaluation under § 4.118, are: a scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation: scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  Under note (3) the adjudicator is to take into consideration unretouched color photographs when evaluating under these criteria. 

Based on the evidence of record, the Board concludes that an initial compensable is not warranted at any time since the award of service connection.  Regarding body area affected, the evidence fails to show that the Veteran's skin disability covers at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected.  An April 2006 VA examination shows that the Veteran's disability involved less than one percent of exposed area and approximately two percent of the entire body area.  A July 2007 VA examiner opined that the Veteran's disability affected zero percent of exposed area and less than one percent of the entire body area; his acne was opined to be inactive.  At an August 2012 VA examination, the Veteran did not have a visible skin condition; consequently, no percentage of body area affected was reported.  None of his treatment records show the percentage of body areas affected by his acne.  As such, an initial compensable rating based on percentage of body area affected is not warranted at any time since the award of service connection.
The evidence also does not show that the Veteran required systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  The April 2006 VA examination shows that he reported using topical medication.  At the July 2007 examination, he reported taking an antihistamine (Benadryl) and using topical medication.  He reported using topical corticosteroids constantly at the August 2012 examination.  Although he also took a pill, the examiner indicated that it was an antihistamine, not a corticosteroid.  His treatment records fail to show treatment of immunosuppressive drugs for this disability.  At his hearing, he testified that he took Benadryl, occasionally received a shot and used a salve.  T. at 23-24.  As such, the Veteran does not meet the criteria for an initial compensable rating at any time since the award of service connection based on intermittent therapy.  

For these reasons, the Board finds that the criteria for an initial compensable rating is not warranted at any time since the award of service connection.  

		4.  Status Post-Mastectomy of the Left Breast

In this case, the Veteran has been diagnosed with status post-mastectomy of the left breast.  This service-connected disability is currently rated as zero percent or noncompensably disabling under 38 C.F.R. § 4.119, DC 7999-7915, which evaluates impairment from benign neoplasm rated as residuals of endocrine dysfunction.  The evidence shows that the Veteran's mastectomy caused a scar and has not resulted in endocrine dysfunction.  Therefore, the RO has considered the Veteran's disability under the diagnostic codes used to rate scars and the Board will do the same.

The Board notes amendments were made to the rating criteria for skin, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008).  However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), this issue will only be evaluated under the rating criteria in effect prior to October 23, 2008.  Id.  See also 38 C.F.R. § 4.118.

Pursuant to the criteria for rating skin disabilities effective prior to October 23, 2008, scars other than the head, face, or neck, that are deep, or that cause limitation of motion warrant a 10 percent evaluation if they involve area or areas exceeding 6 square inches (39 sq. cm.).  38 C.F.R. § 4.118, DC 7801 (2008).  A 20 percent evaluation is warranted for area or areas exceeding 12 square inches (77 sq. cm.).  Id.  

Scars other than the head, face, or neck, that are superficial, and do not cause limitation of motion only warrant a 10 percent evaluation if they involve areas of 144 square inches or greater.  38 C.F.R. § 4.118, DC 7802 (2008).  Note (2) which follows shows that a superficial scar is one not associated with underlying soft tissue damage.  Id.  

Superficial scars which are unstable where, for any reason, there is frequent loss of covering of the skin over the scar, only warrant a 10 percent evaluation.  38 C.F.R. § 4.118, DC 7803 (2008).  Note (1) which follows shows that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar.  Id.  

Scars which are superficial and painful on examination only warrant a 10 percent evaluation.  38 C.F.R. § 4.118, DC 7804 (2008).

Other scars that cause limitation of function of affected part are to be rated on limitation of function of affected part.  38 C.F.R. § 4.118, DC 7805 (2008).

Based on the evidence of record, the Board concludes that a compensable rating is not warranted any time during this appeal.

The pertinent evidence of record fails to show that the Veteran's scar meets any of the criteria for a compensable rating.  The evidence does not show that the Veteran's scar was deep or caused limitation of motion and involved an area exceeding six square inches (39 sq. cm.).  A May 2008 VA examination revealed that the scar only measured one inch; therefore, an area exceeding six square inches was not shown.  Furthermore, the examiner did not opine that it was deep; they specifically opined that it did not cause limitation of motion.  A February 2013 examiner indicated that the scar was three centimeters by 0.01 centimeters, again showing that it did not exceed six square inches.  The examiner also opined that it did not present any limitation of motion.  Therefore, a compensable evaluation under DC 7801 is not warranted.  

Although both VA examinations show that the scar did not cause limitation of motion, and the examiners both opined that there was no adherence to underlying tissue, indicating that it was superficial, it did not involve an area of 144 square inches or greater, rendering DC 7802 inapplicable.

There is no indication in the May 2008 and February 2013 examination reports that the Veteran's scar was unstable where, for any reason, there was frequent loss of covering of the skin over the scar.  Both examiners indicated that the scar was stable.  As such, a compensable evaluation under DC 7803 is not warranted.  

The Veteran denied pain or tenderness of the scar on exam at both VA examinations.  Therefore, a 10 percent rating under DC 7804 for scars which are superficial and painful on examination is not warranted.  

Lastly, there is no indication that the Veteran's scar caused limitation of function of the affected part.  Both VA examiners specifically found that the scar did not result in limitation of motion.  Absent limitation of function of the affected part, a compensable evaluation under DC 7805 is not warranted.   

The Veteran's pertinent treatment records during this appeal have not shown treatment for his scar.  There is no indication in his records that his scar met any of the criteria discussed above for a compensable rating.

Accordingly, the criteria for a compensable rating for the Veteran's status post-mastectomy of the left breast scar have not been met.  38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805.


		5.  Extraschedular Consideration

Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability.  38 C.F.R. § 4.1.  The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder.  38 C.F.R. § 3.321(b).  

However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's hypertension, arthritis, acne and status post-mastectomy symptoms and disability levels.  Marked interference with employment beyond that contemplated by the schedular criteria has not been shown.  The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disabilities.  The evidence does not show that the Veteran's hypertension, arthritis, acne and status post-mastectomy have resulted in interference with employment or activities of daily life which would warrant ratings in excess of 10 percent for hypertension and arthritis of the right foot and compensable ratings for acne of the posterior trunk and abdomen and status post-mastectomy of the left breast.  Moreover, as the Veteran has not contended, nor does the evidence show that these disabilities render him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).



ORDER

New and material evidence having been received, the claim for service connection for pes planus is reopened.  

New and material evidence having been received, the claim for service connection for sinusitis is reopened.   

Entitlement to service connection for pes planus is granted.

Entitlement to service connection for sinusitis is granted.

Entitlement to service connection for tuberculosis is denied.

Entitlement to service connection for carpal tunnel syndrome of the left hand is denied.

Entitlement to an initial rating in excess of 10 percent for hypertension is denied.

Entitlement to an initial rating in excess of 10 percent for arthritis of the right foot is denied.

Entitlement to an initial compensable rating for acne of the posterior trunk and abdomen is denied.

Entitlement to a compensable rating for status post-mastectomy of the left breast is denied.


REMAND

Regrettably, a remand is necessary for further evidentiary development of the claims of entitlement to dental treatment and a rating in excess of 50 percent for PTSD.
Regarding the Veteran's PTSD rating claim, the Veteran was awarded disability benefits from the SSA based, in part, on his PTSD.  Only the decision awarding benefits is of record.  A remand is necessary to obtain the Veteran's SSA records.  Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).

The Veteran's claim for dental treatment is inextricably intertwined with his PTSD rating claim.  Class IV dental treatment eligibility is warranted for those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability.  38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 17.161 (2012).  In this case, it is possible that the Veteran could be awarded an increased rating for his PTSD such that his disabilities would be rated at 100 percent by schedular evaluation; he would therefore be entitled to Class IV treatment.  As such, the issues are inextricably intertwined and the claim for dental treatment must be remanded.  

The most recent VA treatment records from the VA Medical Center (VAMC) in Jackson, Mississippi are dated in February 2013.  On remand, records of any VA pes planus and psychiatric treatment that the Veteran received since February 2013 should be obtained.  38 U.S.C.A. § 5103A(c) (West 2002).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).  

Since the last VA examination was in July 2012, as a remand is necessary, the Veteran should be afforded a new VA examination to determine the current severity of his psychiatric disability.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims folder the SSA records pertaining to the Veteran's claim for benefits, to include copies of the medical records used in support of that determination.  All attempts to obtain these records should be documented in the claims folder.  Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile.  Because these are Federal records, if they cannot be located or no such records exist, the Veteran should be notified in writing.

2.  After obtaining the appropriate release of information forms where necessary, procure records of post-service psychiatric treatment that the Veteran has recently received.  The Board is particularly interested in records of such treatment that the Veteran may have received from the Jackson VAMC.  If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file.  All such available reports should be associated with the claims folder.

3.  Thereafter, schedule the Veteran for a VA psychiatric examination to determine the severity of the service-connected PTSD.  All indicated tests and studies are to be performed.  The claims file and a copy of this REMAND should be made available to and reviewed by the examiner in connection with the examination.  

The examiner should also provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected PTSD.  In addition, the examiner should provide a Global Assessment of Functioning (GAF) score with an explanation of the significance of the score assigned.  The examiner should assign a GAF score for the Veteran's service-connected PTSD consistent with the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).

The examiner should include a complete rationale for the findings and opinions expressed.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale.

4.  Then, readjudicate the issues of entitlement to dental treatment and a rating in excess of 50 percent for PTSD remaining on appeal.  If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration.

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

CONTINUED ON NEXT PAGE

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 MARTIN 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs