Citation Nr: 1330137	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  09-24 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for cephalgia, consistent with post concussive syndrome, claimed as headaches. 

2.  Entitlement to a compensable rating for scar of the left parietal area of the scalp.

3.  Entitlement to service connection for an acquired psychiatric disorder, to include, bipolar disorder, a mood disorder, and posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for gastritis, claimed as irritable bowel syndrome, to include as secondary to an acquired psychiatric disorder.

5.  Entitlement to service connection for gastroesophageal reflux disease, claimed as acid reflux/hiatal hernia, to include as secondary to an acquired psychiatric disorder.

6.  Entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disorder and/or service-connected cephalgia.

7.  Entitlement to service connection for asthma.

8.  Entitlement to service connection for hearing loss.

9.  Entitlement to service connection for residuals of a cold weather injury.

10.  Entitlement to service connection for incomplete paralysis, inferior alveolar nerve, claimed as a dental problem/severed nerves.

11.  Entitlement to service connection for gonorrhea to include urethritis.

12.  Entitlement to service connection for a neck disorder.

13.  Entitlement to service connection for a bilateral shoulder disorder.

14.  Entitlement to service connection for a bilateral arm disorder.

15.  Entitlement to service connection for a bilateral hand disorder.

16.  Entitlement to service connection for a bilateral leg disorder.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney At Law


ATTORNEY FOR THE BOARD

A. M. Clark, Counsel




INTRODUCTION

The Veteran served on active duty from January 1979 to January 1984. 

These matters come before the Board of Veterans' Appeals (BVA or Board) from April 2007 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 

As noted on the title page, the Board is recharacterizing the Veteran's PTSD and bipolar disorder claims to include other psychiatric disorders that have been diagnosed, i.e., a bipolar disorder, a mood disorder, and PTSD.  See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

The Board notes that although the Veteran requested a BVA Videoconference Hearing in November 2009, in a January 2013 written statement he indicated that he was withdrawing his request for a hearing.  Thus, his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2012). 

The issues of entitlement to an increased rating for cephalgia, and service connection for an acquired psychiatric disorder, gastritis, gastroesophageal reflux disease, a sleep disorder, asthma, hearing loss, incomplete paralysis, a bilateral arm disorder, a bilateral hand disorder, and a bilateral leg disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The Veteran's scar of the left parietal area of the scalp is only 5.2 cm in length and difficult to visualize, with no adherence of underlying structures, wound tenderness, depression, hyperesthesia, or hypoesthesia.

2.  There is no credible or competent evidence that the Veteran has a current diagnosis of residuals of a cold weather injury at any time during or contemporary to the appeals process. 

3.  There is no credible or competent evidence that the Veteran has a current diagnosis of gonorrhea, to include urethritis, at any time during or contemporary to the appeals process. 

4.  There is no credible or competent evidence that the Veteran has a current diagnosis of a neck disorder, at any time during or contemporary to the appeals process. 

5.  The preponderance of the evidence is against a finding that any diagnosed bilateral shoulder disorder is related to service.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for a scar of the left parietal area of the scalp have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800 (pre-amended 2008). 

2.  Residuals of a cold weather injury were not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012).

3.  Gonorrhea to include urethritis was not incurred in or aggravated by service.     38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012).

4.  A neck disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012).

5.  A bilateral shoulder disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Assist and Notify

VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Here, neither the Veteran nor his attorney has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board. In August 2006 (cold weather, gonorrhea), and December 2009 (neck, shoulder) the Veteran was notified via letters of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  The Veteran was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded.  With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal.  

The Veteran's increased rating claim for a scar of the left parietal area of the scalp arises from his disagreement with the initial rating following the grant of service connection.  Once service connection is granted, the claim is substantiated.  Therefore, 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).  

Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
  
VA also has a duty to assist a veteran in the development of a claim.  That duty includes assisting a claimant in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained the Veteran's service treatment records and VA treatment records.  The Veteran also submitted private treatment records and personal statements in support of his appeal.  The Veteran's Social Security Administration records were additionally reviewed, as were extensive amounts of VA treatment records in the Veteran's Virtual VA file.  No other outstanding evidence has been identified that has not been obtained.

Next, a VA examination and opinion with respect to his cold weather injury and gonorrhea claims were obtained in January and March 2007.  A VA examination and opinion were obtained, with respect to his bilateral shoulder disorder claim, in May 2010.  His neck was additionally examined in May 2010.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination and opinions obtained adequately address these service connection claims.  They consider all of the pertinent evidence of record, the statements of the Appellant, and provide a sufficient rationale for the opinions stated, relying on and citing to the records reviewed. 

The Veteran underwent VA examinations in January 2007 and November 2012, with respect to his increased scar claim.  The examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and together provide the information necessary to rate his disability under the applicable rating criteria.  

The Veteran's most recent scar examination is several months old.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  There is no objective evidence of record indicating that there has been a material change in the severity of the Veteran's scar of the left parietal area of the scalp since the November 2012 VA examination.  The Veteran does not contend otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims.  Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Increased Ratings

Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  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 several grades of disability.  38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  The Board should consider only those factors contained in the rating criteria.  Massey v. Brown, 7 Vet. App. 204 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

The Veteran is appealing the initial disability rating assigned for his scar of the left parietal area of the scalp.  Therefore, the claim requires consideration of the entire time period involved, and the Board will consider staged ratings where warranted.  Fenderson v. West, 12 Vet. App. 119 (1999). 

The Veteran seeks a compensable evaluation for his service-connected scar of the left parietal area of the scalp.  The Board observes that the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective in October 2008.  However, the October 2008 revisions are applicable to applications for benefits received by VA on or after October 23, 2008.  See 73 Fed. Reg. 54708 (September 23, 2008).  In this case, the Veteran filed his claim in August 2005.  Therefore, only the pre-October 2008 version of the schedular criteria is applicable in this case.

The Veteran's scar of the left parietal area of the scalp is rated utilizing the rating criteria found at Diagnostic Code 7800, burns or scars of the head, face, or neck; or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118.  A 10 percent rating is for application when there is one characteristic of disfigurement.  A 30 percent rating is for application when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.

Note (1) to Diagnostic Code 7800 defines the eight characteristics of disfigurement for purposes of evaluation under § 4.118.  They are: (1) a scar five or more inches (13 or more cm) in length; (2) a scar at least one-quarter inch (0.6 cm) wide at the widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id.

The Veteran's service-connected scar of the left parietal area of the scalp has been examined twice during the pendency of this claim.  At a January 2007 VA examination it was noted that the Veteran had a small scar on the scalp, left parietal area, 1.5 cm by 0.3 cm.  It was noted that it was difficult to find and barely visible among hair.  The VA examiner indicated that there was no palpable deformity of the bone of the skull in this area.  It was additionally noted that the Veteran had a scar of the left breast allegedly due to an accident, a scar of the right thigh allegedly due to an accident after slaughtering a hog, multiple open and closed comedo on the torso and a tattoo of the left upper arm.  The Board notes that the Veteran is only service-connected for the scar of the left parietal area of the scalp.

The Veteran underwent a VA scars examination in November 2012.  It was noted that the Veteran had an unremarkable left parietal scalp, an unremarkable linear scar of the right frontal scalp, and an unremarkable linear scar of the bridge of the nose. It was noted that the Veteran did not have any scars of the head, face, or neck that are painful.  Additionally no scars of the head, face, or neck were noted to be unstable or with frequent loss of covering of the skin over the scar.  No scars of the head, face, or neck were observed to be both painful and unstable.  Additionally, none of the Veteran's scars of the head, face, or neck were due to burns.  

The Veteran's scar of the left parietal area of the scalp was noted to be 5.2 X 0.1 cm tan-white, flat, non-tender, stable, and linear.  The VA examiner indicated that it was located perpendicular to the coronal plane extending from midline to 5.2 cm lateral, 10 cm above the brow line within a fully hair covered area.  The length and width of the scar, at the widest part, was noted to be 5.2 x 0.1 cm.  The VA examiner stated that there was no elevation, depression, adherence to underlying tissue or missing underlying soft tissue.  She noted that there was no abnormal pigmentation or texture of the head, face, or neck.  Moreover, no distortion of the facial features and or tissue loss for the head, face, or neck was observed.  The VA examiner additionally noted that none of the Veteran's scars of the head, face, or neck result in limitation of function and the Veteran's scar does not result in other pertinent physical findings, complications, conditions, signs and/or symptoms.  She stated that the Veteran's scar did not impact the Veteran's ability to work. 

Here, none of the aforementioned characteristics of disfigurement have been noted on examination.  The Board has considered other diagnostic codes to determine if another code would provide a higher rating for this disability, but finds none. Diagnostic Code 7801 and 7802 are not for application because those diagnostic codes apply to scars on parts of the body other than the head, face, or neck. Diagnostic Codes 7803 and 7804 are inapt because the scar has not been described as unstable or painful upon examination.  Diagnostic Codes 7806 through 7829 are not for application because they all deal with diseases of the skin, not scars. Diagnostic Code 7830 is inapt because it deals with scarring related to alopecia, not for scarring such as the Veteran's laceration-related scar.  Diagnostic Codes 7831-33 are inapt because they deal with skin disorders as opposed to scars.

The Board thus finds that the Veteran's scar of the left parietal area of the scalp more nearly approximates the criteria required for the currently-assigned noncompensable evaluation, and that a higher rating is not warranted at any time during the pendency of this appeal.

The Board has also considered whether the Veteran is entitled to an additional rating under any different diagnostic codes for separate and distinct manifestations attributable to the same injury.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).  In this case, a review of the record, including the medical evidence and the Veteran's contentions, does not reveal that the Veteran has any separate and distinct manifestations attributable to his scar of the left parietal area of the scalp.  Accordingly, an additional rating is not warranted. 

Consequently, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for a scar of the left parietal area of the scalp.  The Board has also considered the Veteran's statements discussing the severity of his service-connected scar of the left parietal area of the scalp.  In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact.  Credibility and weight are a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994).  Although interest may affect the credibility of testimony, it does not affect competency to testify.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Veteran is competent to report his scar of the left parietal area of the scalp symptoms because that requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, the clinical evidence of record does not indicate that the assignment of any increased rating is warranted.  As the Veteran's statements are inconsistent with the evidence of record, the Board finds his assertions of increased scar of the left parietal area of the scalp symptoms to be less credible than the medical evidence of record from examinations and treatment.  Jones v. Derwinski, 1 Vet. App. 210 (1991).  Thus, evidence of increased scar of the left parietal area of the scalp to a degree that warrants a higher rating has not been established, either through medical or lay evidence, during the appeal period.

The Board finds that the Veteran's claim for a compensable rating for his scar of the left parietal area of the scalp must be denied.  The Board has considered staged ratings, but concludes that they are not warranted because the evidence does not show any period of time when the symptomatology has been sufficiently more severe to warrant a higher rating.  Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the preponderance of the evidence is against this claim, the claim for increase must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has also considered whether referral for consideration of an extraschedular rating is warranted.  38 C.F.R. § 3.321(b) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular consideration when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2012).  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is adequate.  Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of the assignment of an extraschedular rating is not warranted.  38 C.F.R. § 3.321 (2012). 

Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible for his scar of the left parietal area of the scalp, he has not submitted evidence of unemployability, or claimed to be unemployable.  Significantly the November 2012 VA examiner indicated that the Veteran's scar did not impact his ability to work.  Thus, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

In conclusion, the Board finds that the Veteran's disability picture regarding his scar of the left parietal area of the scalp does not more nearly approximate a compensable disability evaluation.  Further, the Board finds that the evidence, as detailed above, does not show distinct time periods exhibiting symptoms warranting staged evaluations.  See Fenderson, supra.  Consequently, the Board finds that a noncompensable disability rating, throughout the rating period on appeal, appropriately reflects the clinically established impairment experienced by the Veteran.  

III.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131 (West 2002).  Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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); Hansen v. Principi, 16 Vet. App. 110 (2002); Caluza v. Brown, 7 Vet. App. 498 (1995).

Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  The provisions of § 3.303(b) only apply to the list of chronic disabilities identified under § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

Residuals of a Cold Weather Injury, Gonorrhea and Neck

The Veteran claims service connection for numerous disabilities.  Those include residuals of a cold weather injury, gonorrhea, and a neck disorder.  There is no medical evidence of record that provides a diagnosis for any of the claimed disorders.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  Without evidence of a current disability, there is no basis for service connection.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The requirement that a current disability be present is satisfied when a claimant has a disability at the time or contemporary to the time that a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  

Significantly, there is no competent evidence that the Veteran has a disability relating to residuals of a cold weather injury, gonorrhea, or neck, nor that he had any such disabilities at any time while the claims have been pending.  The Board finds significant that despite his complaints, no residuals of a cold weather injury, gonorrhea, or neck disorder have been diagnosed.  Additionally, although various treatment records reflect complaints of neck pain, the Board emphasizes that pain 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.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

Significantly, the Veteran underwent a VA examination in March 2007.  The VA examiner indicated that although the Veteran had alleged cold exposure, there were no demonstrable sequelae consistent with a cold injury such as frost bite or prolonged immersion.  With respect to gonorrhea and non-specific urethritis, by history, the VA examiner indicated it had resolved without demonstrable sequelae.  
Based on the foregoing, the weight of the evidence is against the claims for service connection for residuals of a cold weather injury, gonorrhea, or a neck disorder.  Therefore, the appeals for residuals of a cold weather injury, gonorrhea or a neck disorder must be denied.

Bilateral Shoulder Disorder

As an initial matter, the service treatment records reflect no complaints of, treatment for, or a diagnosis related to a bilateral shoulder disorder.  The Veteran asserts that he suffers from shoulder problems which began after a beating in service.  Service treatment records confirm that the Veteran was assaulted at Ft. Riley in September 1983.  Notably, his separation examination in November 1983 reflected a normal clinical evaluation of his upper extremities.  

Post service treatment records show diagnoses of a bilateral shoulder disability.  Specifically, a May 2010 VA examination shows a diagnosis of degenerative joint disease and rotator cuff tear of the right shoulder and mild degenerative joint disease and rotator cuff strain of the left shoulder.  Therefore, the objective medical evidence does not reflect continuity of symptomatology.

In addition to the absence of documented post-service symptomatology related to a bilateral shoulder disorder for several decades, the evidence includes the Veteran's statements asserting continuity of symptoms with respect to this disorder.  The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

In this case, there is no dispute that Veteran is competent to report symptoms of shoulder pain he experiences because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.").  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination.

However, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible.  
Notably, as noted above, records do not reflect a diagnosis of a bilateral shoulder disorder for several decades following separation from service.  Moreover, although he filed claims for disability compensation benefits for other disorders as early as the 2005, a claim for a bilateral shoulder disorder was not filed until 2009.  The fact that the Veteran was aware of the VA benefits system, sought out a claim for other disabilities, but made no reference to his purported history of a shoulder disorder since service, weighs heavily against his credibility.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as fact finder to draw a reasonable inference).  Had the Veteran been experiencing a bilateral shoulder disorder at that time, there seems to be no reason why the Veteran would not have identified that disability.  

The value of the Veteran's assertions are additionally diminished, given that there is clinical evidence indicating that his shoulders were normal at the time he left service.  The Board has also considered a May 2005 VA treatment record which noted shoulder pain since 2003, many years following separation from service.  The Veteran also self reported at a July 2008 VA treatment visit that he had pain in both shoulders since working at a beef processing plant several years prior.  Continuity has not here been established, either through the competent evidence or through the Veteran's statements. 

Service connection may also be granted when the evidence establishes a nexus between active duty service and current complaints.  However, the objective medical evidence of record does not establish a link between the Veteran's bilateral shoulder disorder and his period of military service, to include his 1983 assault.   After reviewing the Veteran's claims file a May 2010 VA examiner determined that it was less likely than not that the Veteran's bilateral shoulder disorder is caused by or a result of the 1983 beating, or other event in service.  The VA examiner acknowledged that the Veteran had been injured in service in 1983 but that he had many other street fights (not in service), with undocumented injuries.  He noted the Veteran's reports that he was holed up in a shed, using drugs and alcohol supplied by his step-brothers, from his 1984 separation from service until 1990.  The VA examiner considered that the Veteran had taken on an intensely physical job, involving both upper extremities, killing cattle for a meat plant from 1990 to 1999.  The VA examiner noted that the Veteran could not remember what caused the injuries to his shoulders which are similar bilaterally, although the right is more severe.  He concluded that he could not find a nexus to service.  There are no contradictory opinions of record. 
	
The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed bilateral shoulder disorders and active duty service.  The Board reiterates that he is competent to report symptoms as they come to them through his senses.  However, degenerative joint disease of the shoulders is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis.  Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal.  Here, the Board attaches greater probative weight to the clinical findings than to his statements.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board finds that the preponderance of the competent evidence is against the Veteran's claim for service connection for a bilateral shoulder disorder.  Therefore, the claim is denied.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A compensable rating for scar of the left parietal area of the scalp is denied. 

Service connection for residuals of a cold weather injury is denied. 

Service connection for gonorrhea to include urethritis is denied. 

Service connection for a neck disorder is denied.

Service connection for a bilateral shoulder disorder is denied. 


REMAND

As previously noted, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board finds that additional development is necessary to satisfy VA's obligations under VCAA.

Increased Rating Cephalgia-  The Veteran seeks an initial evaluation in excess of 10 percent for service-connected cephalgia, consistent with post concussive syndrome, claimed as headaches.  Before the Board can adjudicate this claim on the merits, additional development is required.

The Veteran's cephalgia is currently evaluated as 10 percent disabling under Diagnostic Code 8045.  The Board notes that effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising the portion of the Schedule that addresses neurological conditions and convulsive disorders to provide updated criteria for evaluating residuals of Traumatic Brain Injury (TBI).  The amendment applies to all applications for benefits received by VA on or after October 23, 2008. 73 Fed. Reg. 54693 (Sept. 23, 2008) ('The amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date.').  However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence.

In this case, the Veteran has requested consideration for his TBI under the new criteria.  See November 2010 Statement from Attorney.  The Veteran was provided with a VA examination in November 2012, in accordance with the criteria set forth in the new regulations.

Unfortunately, a review of the most recent December 2012 Supplemental Statement of the Case reflects that the RO has not considered the new rating criteria when evaluating the Veteran's service connected cephalgia.  Additionally, notice of the amended regulations regarding rating residuals of TBI has not been provided to the Veteran.  The Board finds that there is potential prejudice to the Veteran if he does not receive notice of these regulations and if the RO does not consider the rating criteria in the first instance.  See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Thus, the matter must be remanded. 

Acquired Psychiatric Disorder-  The Veteran underwent a November 2012 VA examination.  At that time, the VA examiner determined that the Veteran did not have PTSD and there was no nexus between his bipolar disorder and service.  She rationalized that this was based on findings that his bipolar disorder began sometime after service and appears to have become impairing during the two year period of heavy alcohol, amphetamine and cocaine use following military service.  The Board initially notes that the fact that the Veteran did not obtain treatment for a disorder until after separation from service is not detrimental to a service connection claim.  Moreover, a review of the Veteran's service treatment records clearly reflects that he reported nervous trouble in a report of medical history completed in November 1983.  

For the foregoing reasons, the Board finds that the November 2012 VA examiner's opinion is inadequate, and the RO must obtain a new opinion as to whether the Veteran's current acquired psychiatric disorder is related to service.  

Gastritis, Gastroesophageal Reflux Disease, Sleep Disorder-  A review of the Veteran's August 2007 Notice of Disagreement reflects that he is essentially alleging service connection for gastritis and gastroesophageal reflux disease, to include as secondary to an acquired psychiatric disorder.  He is additionally alleging service connection for a sleep disorder, to include as secondary to an acquired psychiatric disorder and/or his service-connected cephalgia.  As such corrective VCAA notice regarding these specific relationships should be sent to the Veteran.  Moreover, while on remand VA etiological opinions should be obtained to determine whether any of these disorders are related to the Veteran's acquired psychiatric disorder or service-connected cephalgia.
 
The Board additionally notes, with respect to his sleep disorder claim, although the VA examiner vaguely addressed the relationship between the Veteran's sleep disorder and GERD, sleep apnea or a mental health disorder, the March 2007 VA examiner did not address any potential relationship between the Veteran's sleep disorder and service.  While on remand this relationship should be addressed.  The Board notes a November 1983 report of medical history which reflects complaints by the Veteran of "frequent trouble sleeping."  

Additionally, with respect to his gastritis and GERD claims, the March 2007 VA examiner  indicated that these disorders were likely related to chronic alcohol abuse and rationalized that there was no record of treatment for these disorders during military service.  As noted above, the fact that the Veteran did not obtain treatment for a disorder until after separation from service is not detrimental to a service connection claim.  Moreover, the Veteran alleged in an October 2005 statement that he had these conditions in service but just lived with the conditions until 2002 when he started taking medication.  While on remand additional an VA examination and opinions should be obtained. 

Hearing Loss-  In a February 2013 statement, the Veteran indicated that he had recently received hearing aids at the VAMC in Des Moines, Iowa in February 2013.  Records in the claims file are updated through December 2012.  Therefore, these outstanding records should be obtained.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).  All outstanding VA records, pertaining to the Veteran's hearing loss, should be obtained and associated with the claims file.

Incomplete Paralysis, Inferior Alveolar Nerve, Claimed as Dental Problem-  The  Veteran asserts that his nerve was damaged while undergoing dental work in service.  A January 2007 VA Dental Examination reflects that the Veteran's third molars were extracted while on active duty.  The Veteran reported that he was not having numbness on the day of the exam as it was not that cold.  The VA examiner indicated that trauma to the inferior alveolar nerve in the mandible is a common occurrence with the removal of the third molars, but in most cases the sensory ability will return to normal with time.  He noted that he had not previously seen a case where the sensory deprivation from extraction of the third molars has only affected an area when the weather is cold but could not rule out that the extraction of the impacted teeth had initiated this problem.  Rationale for his opinion is lacking.    

The Board has considered the Veteran's assertion that his numbness occurs in cold weather.  See November 2006 treatment record.  A review of the January 2007 VA examination reflects that he was not experiencing numbness symptomatology at the time of the examination.  Where a Veteran's condition is subject to active and inactive stages, an examination should be conducted during the active stage. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  The Veteran should be scheduled for an appropriate VA dental examination, preferably in the winter months, to determine the nature, extent, onset, and etiology of all pathology pertaining to his claimed incomplete paralysis of the inferior alveolar nerve.

Asthma-  Service treatment records reflect a normal clinical evaluation of his lungs and chest in a November 1978 enlistment examination.  Although it was noted in a report of medical history at that time that the Veteran had experienced asthma at age 6, the Board places significant weight on the fact that the Veteran's clinical evaluation was normal at that time.  In assessing whether the Veteran was in sound condition upon entry into service, the treatment records have been reviewed.  Moreover, the Board has considered a March 2007 VA examination which noted that the Veteran had been diagnosed with asthma prior to service.  

The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness.  See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition).  As such, and giving him the benefit of the doubt, the Board will proceed under the premise that his respiratory disorder did not preexist his service. 

As noted above the Veteran underwent a VA examination in March 2007 which evaluated his respiratory disorder claim.  The VA examiner incorrectly treated the Veteran's asthma as a preexisting disorder.  Because the Board has determined that the Veteran's respiratory disorder did not preexist his service, an additional VA examination should be afforded to the Veteran.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

Bilateral Arm, Bilateral Hand, Bilateral Leg Disorders-  A May 2010 VA examination reflects that the Veteran has myoclonic syndrome involving jerks of the arms, hands and legs.  The VA examiner in his May 2010 VA opinion indicates that some patients with myoclonus "are felt to have psychological components to their (myoclonus) in that they can be improved with biofeedback."  As there is an indication the Veteran's arm, hand, and leg issues may be related to psychological causes, and the Veteran's acquired psychiatric disorder claim is being remanded for further development, the Board will hold these claims in abeyance pending completion of the development discussed below.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  As such, the Board defers ruling on these matters until after the mandates of the Remand have been completed.

Accordingly, the case is REMANDED for the following actions:

1.  The RO must notify the Veteran of the amended regulation with regard to rating traumatic brain injury. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008).
   
2.  Obtain all outstanding VA clinical records pertaining to the Veteran's hearing loss, from the VAMC in Des Moines, Iowa. 

3.  Send the Veteran corrective VCAA notice pertaining to the issues of entitlement to service connection for gastritis, to include as secondary to an acquired psychiatric disorder; entitlement to service connection for GERD, to include as secondary to an acquired psychiatric disorder; and entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disorder and/or service-connected cephalgia.

4.  A VA examiner, other than the November 2012 VA examiner, is asked to review the claims file, and provide opinions as to the following:

Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current acquired psychiatric disorder, or one which the Veteran has experienced during the course of his appeal, had its onset during the Veteran's active service or is otherwise causally related to his service.  The examiner should discuss the relevance, if any, of the service treatment record documenting complaints of nervousness.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

5.  Schedule the Veteran for an examination to determine the nature and etiology of his gastritis.  Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred.  

The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current gastritis disorder, or one which the Veteran has experienced during the course of his appeal, had its onset during the Veteran's active service or is otherwise causally related to his service.  

The VA examiner should specifically determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's gastritis, was caused, or aggravated, by an acquired psychiatric disorder. 

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

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

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

6.  Schedule the Veteran for an examination to determine the nature and etiology of his GERD.  Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred.  

The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current GERD, or one which the Veteran has experienced during the course of his appeal, had its onset during the Veteran's active service or is otherwise causally related to his service.  

The VA examiner should specifically determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's GERD, was caused, or aggravated, by an acquired psychiatric disorder. 

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

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

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

7.  Schedule the Veteran for an examination to determine the nature and etiology of his sleep disorder.  Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred.  

The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current sleep disorder or one which the Veteran has experienced during the course of his appeal, had its onset during the Veteran's active service or is otherwise causally related to his service.  

The VA examiner should specifically determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep disorder, was caused, or aggravated, by an acquired psychiatric disorder and/or his service-connected cephalgia. 

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

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

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

8.  Schedule the Veteran for a dental examination, preferably in the winter months, to determine the nature and etiology of his neurological disorder.  Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred.  

The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any incomplete paralysis, inferior alveolar nerve (claimed as dental problem/severed nerves) or one which the Veteran has experienced during the course of his appeal, had its onset during the Veteran's active service or is otherwise causally related to his service, to include the removal of his wisdom teeth.  

In the event that the VA examiner is unable to clinically diagnose a neurological issue objectively, are the Veteran's complaints consistent with damage to the alveolar nerve?

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

9.  Schedule the Veteran for a VA examination, to determine the nature and etiology of his asthma. Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred.  

The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any asthma or one which the Veteran has experienced during the course of his appeal, had its onset during the Veteran's active service or is otherwise causally related to his service.  
   
For purposes of this opinion, the VA examiner is to presume that the Veteran's asthma did not preexist service.

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

10.  Thereafter, readjudicate the claims, to include consideration of the 'old' and 'new' TBI regulations (with respect to his increased rating for cephalgia).  If the benefits sought on appeal remain denied, provide the Appellant a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response.

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

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



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

Department of Veterans Affairs