Citation Nr: 1334057 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-15 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 30 percent for residuals to larynx injury. 2. Entitlement to an initial compensable rating for a left heel ulcer prior to February 7, 2008. 3. Entitlement to a rating in excess of 10 percent for a left heel ulcer. 4. Entitlement to a compensable rating for residuals of a shell fragment wound on the neck. 5. Entitlement to service connection for right hip arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active military service from October 1962 to October 1965. The appeal comes before the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Although the Veteran's virtual VA electronic file contains VA treatment records dated subsequent to the October 2011 supplemental statement of the case (SSOC), the Board finds that these treatment records are either not pertinent claims on appeal decided herein, or are duplicative of the evidence already of record. Consequently, remand of these claims for review of the VA records dated subsequent to October 2011 by the RO, and issuance of a new SSOC, is not indicated. The Board notes that the rating criteria for scars were revised effective October 23, 2008. However, the revised rating criteria are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). Since the Veteran's claims were received prior to October 23, 2008, and there has been no request by the Veteran or his representative for consideration under the new regulations, the newly revised criteria have not been considered in this case. The Board notes that a May 2013 rating decision granted the Veteran a total disability rating based on individual unemployability due to service connected disabilities (TDIU). On a September 2013 informal hearing presentation, the Veteran's representative raised a claim of entitlement to service connection for a low back injury and a claim of entitlement to compensation benefits under 38 U.S.C.A. § 1151. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an increased rating for residuals of a larynx injury, and the issue of entitlement to a rating in excess of 10 percent for a left heel ulcer, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The November 2005 rating decision on appeal granted the Veteran service connection for a left heel ulcer (due to surgery for his service-connected larynx disability), effective from February 6, 1994. 2. A March 1994 VA discharge summary report indicated that the Veteran continued to have left heel ulceration and an August 1994 VA examination report indicates that the Veteran continued to have a left heel ulceration. 3. Throughout the appeal period, the Veteran's residuals of a shell fragment wound on the neck have resulted in no impairment of the neck muscles. 4. The scar residual of the SFW on the neck is superficial, well-healed, nontender and is not disfiguring. 5. There is no probative evidence that the Veteran has ever had arthritis of the right hip. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for a left heel ulcer have been met since February 6, 1994. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7803-7805 (in effect prior to August 30, 2002); 38 C.F.R. § 4.118, 4.124a, Diagnostic Codes 7801-7805 (effective August 30, 2002). 2. The criteria for a compensable rating for the residuals of the SFW on the neck have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7800-05 (effective August 30, 2002); 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Code 5322 (2013). 3. The criteria for service connection for arthritis of the right hip have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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). With regard to the left heel ulcer claim, the appeal arises from the Veteran's disagreement with the initial rating evaluations assigned following the grant of service connection. In such cases the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because the other forms of notice-such as notice contained in the rating decisions and statement of the case (SOC)-have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). Additionally the Board notes that in January 2008 the Veteran was sent VCAA notice regarding his left heel ulcer claim. In July 2005, January 2008, and June 2008, the RO sent notice letters to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the neck, and right hip arthritis claims, and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The January 2008 letter specifically notified the Veteran of how ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the March 2007 statement of the case notified the Veteran of the applicable rating criteria (DC 7803, 7804, and 7805) for rating his right heel scar in effect from August 30, 2002, but not the applicable rating criteria in effect prior to August 30, 2002. However, given that the Board is granting the Veteran a rating of 10 percent for the entire appeal period, and that the claim for a rating in excess of 10 percent is being remanded for further development, the Board finds that this notice error is not prejudicial to the Veteran with regard to the grant of a higher rating for his right heel disability. With respect to the February 2010 Board hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts 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. Here, during the February 2010 hearing, the Veterans Law Judge enumerated the issues on appeal. Information was obtained regarding onset of the Veteran's disabilities, his current symptoms, and any causal link between the claimed right hip arthritis and his active service. The Veteran reported that his disabilities had increased in severity since his last VA medical examination. At the hearing the Veteran stated that he had not ever received Social Security Administration (SSA) disability benefits. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Moreover, the hearing discussion indicated that the Veteran had submitted all his private treatment records and that he was currently receiving his treatment through VA. Following the hearing, the case was remanded in order to obtain additional VA medical records and VA medical examinations. The Board has reviewed the development conducted by the RO, and finds that it has satisfied the Board's remand orders. In particular, the Veteran's updated VA treatment records have been obtained and the Veteran has been provided VA examinations that provide the information necessary to decide the Veteran's neck and right hip arthritis claims. The Board notes that the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. The Veteran has been provided VA medical examinations. He has provided testimony at a Board hearing. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), the RO substantially complied with the Board's remand orders, and the duty to assist has been satisfied. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Heel Ulcer, Prior to February 2008 The November 2005 rating decision on appeal granted the Veteran service connection and a noncompensable rating for a left heel ulcer effective from February 6, 1994. A September 2008 rating decision granted the Veteran a 10 percent rating for the Veteran's left heel ulcer, effective from February 7, 2008. At his February 2010 hearing, the Veteran asserted that the ulcer on his left heal had never healed. He stated that he gets hard skin on the top of his heel and that he went to VA every three or four months to get it treated. He reported that his left heel bothered him when he walked. In July 2010, the Veteran reported that his heel ached with standing and walking. VA's Schedule for Rating Disabilities provides for the evaluation of disabilities of the skin at 38 C.F.R. § 4.118. That regulation clearly provides the proper anatomical localization; that is, the skin, for the evaluation of scars. Under the schedular provisions in effect prior to August 30, 2002, the provisions of 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800 through 7805 concerned scars. DC 7800 as in effect prior to August 30, 2002, was applicable to scars of the head, face, or neck. DC 7801 and 7802 as in effect prior to August 30, 2002, were applicable to burn scars. Consequently DC 7800, 7801, and 7802 are not applicable to the Veteran's left heel ulcer claim. Prior to August 20, 2002, superficial, poorly nourished scars with repeated ulceration are given a 10 percent rating under DC 7803. Superficial scars that are tender and painful on objective demonstration are given a 10 percent rating under DC 7804. DC 7805 provides that other scars are rated on limitation of function of the affected part. 38 C.F.R. § 4.118, DCs 7803-7805 (in effect prior to August 20, 2002). The Board finds that the Veteran's left heel ulcer disability has met the criteria for a 10 percent rating under DC 7803 in effect prior to August 30, 2002, ever since the grant of service connection. Service connection for the Veteran's left heel scar was granted effective February 6, 1994. A March 1997 VA discharge summary indicates that the Veteran continued to have a left heel ulcer. An August 1994 VA examination report also indicated that the Veteran continued to have a left heel ulceration. Given that the Veteran had a recurrent left heel ulcer for so many months, the Board finds that the Veteran's left heel disability met the criteria for a 10 percent rating under DC 7803, ever since the grant of service connection, February 6, 1994. Thus, a 10 percent is granted from February 1994 through February 2008. The rating from that point forward is remanded below. The Board notes that there is no alternate diagnostic code available which provides a higher evaluation for a scar on the foot the size and status of this Veteran's. Furthermore, there is no basis to consider an extraschedular rating for the period being decided here (prior to February 2008). As the Veteran's symptom (a tender scar) is specifically contemplated by the rating criteria, extraschedular consideration is unwarranted. III. Neck The Veteran seeks a compensable rating for residuals of a SFW on the neck. On his May 2006 notice of disagreement he asserted that he was entitled to a compensable rating because he has a retained shrapnel from the injury. At his February 2010 hearing the Veteran said that he did not think that there was any shrapnel in his neck. He said that he did not like to touch that area of his neck because it was kind of hard. He indicated that the area was tender when he bent his head all the way down. An August 1970 rating decision granted the Veteran service connection and a noncompensable rating for residuals of a SFW of the neck effective from October 1967. The Veteran submitted his claim for an increased rating in April 2005. The noncompensable rating was assigned under 38 C.F.R. § 4.73, Diagnostic Code 5322, the diagnostic code for Group XXII muscle injuries. The Board notes that the shell fragment also caused considerable damage to the Veteran's larynx and the Veteran has been provided a separate rating based on the damage to his larynx. The criteria for rating muscle injuries are addressed in 38 C.F.R. §§ 4.55, 4.56, and 4.73. Muscle injury ratings are not to be combined with a peripheral nerve paralysis rating of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). The skeletal muscles of the body are divided into muscle groups. 38 C.F.R. § 4.55(b). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). The cardinal signs and symptoms of muscle disability are described in 38 C.F.R. § 4.56(c): loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Disabilities are classified as slight, moderate, moderately-severe or severe under Diagnostic Codes 5301 to 5323. 38 C.F.R. § 4.73. These terms are described in 38 C.F.R. § 4.56(d). Injuries to the muscles of Group XXII warrant a 0 percent (noncompensable) rating if the attendant symptoms are slight, a 10 percent rating if moderate, a 20 percent rating if moderately severe, and a 30 percent rating if severe. 38 C.F.R. § 4.73, Diagnostic Codes 5322, 5323. A slight disability of muscles stems from a simple wound of a muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1)(i). It heals with good functional results, is superficial, results in minimal scarring and shows no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(d)(1)(i)-(iii). There are no cardinal signs of muscle disability. 38 C.F.R. § 4.56(d)(1)(ii). For moderate disability, the type of injury is "through and through" or deep and from a single bullet; without explosive effect, residual debridement or prolonged infection. 38 C.F.R. § 4.56(d)(2)(i). The record of moderate disability would show one or more of the cardinal signs and symptoms of muscle disability; particularly the low threshold of fatigue. 38 C.F.R. § 4.56(d)(2)(ii). Objective findings are entrance and exit scars, loss of fascia or muscle substance, and lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2)(iii). Characteristics of moderately severe disability include: a deep penetrating wound; prolonged infection; debridement; prolonged treatment for wound; evidence of inability to keep up with work requirements; entrance and exit scars through one or more muscle groups; loss of deep fascia; and impacted strength and endurance. 38 C.F.R. § 4.56(d)(3). Characteristics of severe disability include all of the above plus: evidence of wounds due to large or multiple missiles; shattering bone fracture; extensive debridement; prolonged infection; intramuscular binding and scarring; consistent complaint of cardinal signs; marked scars; obvious loss on palpation; abnormal contraction; X-ray evidence of multiple scattered foreign bodies; adhesion of scars; atrophy; adaptive contraction of an opposing group of muscles, etc. 38 C.F.R. § 4.56(d)(4). The Board recognizes that the Veteran does have a retained foreign body. However, the February 2008 VA examiner could not palpate the retained foreign body in the subcutaneous tissue at the base of the neck or right upper chest wall. X-rays revealed a metallic density overlying the right apex or first right rib. In this case, though there is a retained shrapnel in the base of the neck, there is no indication that it is affecting any muscles. Overall the residuals of the SFW to the neck more nearly meet the criteria for a noncompensable rating based on the criteria for evaluating muscle injuries. On VA examination in February 2008, the examiner noted that the Veteran's wound was not a through and through injury and that the wound was not initially infected before healing. He noted that the muscle has not been injured, destroyed, or traversed, and that there was no intermuscular scarring. The examiner stated that there were no residuals of nerve damage, no residuals of tendon damage, no residuals of bone damage, no finding of muscle herniation, and no loss of deep fascia or muscle substance. He stated that there was no motion of any joint limited by muscle disease or injury. It is clear that there are no cardinal signs of muscle disability. In other words there are no signs of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement due to the SFW to the neck. In fact the February 2008 VA examiner specifically stated that the Veteran's muscle function was normal in terms of comfort, endurance, strength sufficient to perform activities of daily living and that the residuals of the SFW to the neck resulted in no significant effects. Accordingly, the Veteran residuals of a SFW to the neck results in no more than slight impairment of the neck muscles and the Veteran is not entitled to a compensable rating under Diagnostic Code 5322. The Board has also considered whether the Veteran is entitled to a compensable rating for his residuals of a SFW to the neck based on scarring. The Board notes that the criteria for rating scars were revised for claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008), codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2009). Because, however, these changes were expressly made applicable only to claims filed on or after this effective date, they do not apply to the Veteran's pending claim that, instead, was received by VA in April 2005, so prior to these regulatory changes. The February 2008 VA examination revealed the Veteran to have two scars on the anterior base of the neck that appeared to be surgical scars. One was 4 centimeters long and the other was 8 centimeters long. The scars were not adherent, and were not painful or tender to touch. On VA examination in August 2010, the Veteran was noted to have a horizontal linear scar on his distal anterior neck line. It was 0.3 centimeters wide and 4.5 centimeters long. The scar was not painful and there had no signs of skin breakdown. The scar was superficial and was without inflammation, edema, keloid formation or abnormal texture. There was no hypo- or hyper-pigmentation. There was no underlying soft tissue loss. The skin was not indurated or inflexible and the contour was not elevated or depressed. The scar was not adherent to underlying tissue and it had no disabling effects. The examiner stated that there was no disfigurement or disfiguring scar of the neck. He further stated that there was no limitation of motion or other limitation of function due to the scar. The Board finds that the Veteran does not have a neck scar residuals of a SFW that meets the criteria for a compensable rating under any applicable diagnostic code for scarring. Under Diagnostic Code 7800 (effective August 30, 2002) a 10 percent rating is warranted for disfigurement of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is warranted for disfigurement with 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. Id. The eight characteristics of disfigurement for purposes of evaluation under § 4.118 (effective August 30, 2002) are: (1) scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.). Id., at Note (1). In this case there is no indication in the record that the Veteran's has a neck scar that exhibits any of the characteristics of disfigurement listed above. Furthermore, the August 2010 VA examiner specifically stated that the Veteran's neck scar residual of the SFW is not disfiguring. Consequently the Veteran is not entitled to a compensable rating under Diagnostic Code 7800. Diagnostic Codes 7801 and 7802 are not for application, as they pertain to scars other than those on the head, face, or neck. The Veteran has not been shown to have an unstable neck scar and is therefore not entitled to a compensable rating under Diagnostic Code 7803. He has not been shown to have a neck scar that is painful on examination, and there has been no limitation of function from any scar residual of the SFW. Consequently, he is not entitled to a compensable rating under Diagnostic Codes 7804 or 7805. Accordingly, the Board finds that the Veteran has not met the criteria for a compensable rating under any applicable criteria for the rating of scars of the neck. The Board has duly considered the Veteran's statements and personal assertions regarding the severity of his SFW residuals. However, he has not reported any muscle impairment or a painful scar, the primary criteria for a compensable rating. Accordingly, the preponderance of the evidence is against this claim for a compensable rating for the residuals of the SFW of the neck, including the scar at any time during the appeal period and this claim must be denied. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321 . The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008). Here, though, the schedular rating criteria contemplate the extent and severity of the Veteran's SFW residuals. The Veteran has no muscle impairment and a nontender scar, which are contemplated in the applicable schedular rating criteria. Consequently, the Board finds that referral for extra-schedular consideration is not indicated. Id. In sum, the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. IV. Service Connection In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability, the Veteran 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, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). On his May 2006 notice of disagreement the Veteran asserted that VA x-rays in February or March 2006 showed that he had arthritis of the right hip. At his February 2010 hearing the Veteran again asserted that he had been informed at a VA medical facility that he had arthritis of the right hip. The Veteran also asserted at the hearing the he has right hip arthritis secondary to overcompensation of his service-connected left heel ulcer. Although the Veteran has reported that he had been told by VA doctors that he had right hip arthritis, this is not supported by the medical evidence. VA records in March 2006 include x-rays showing degenerative changes of the lumbar spine, but do not include x-rays of the right hip at that time. The Veteran is competent to report symptoms such as pain. Although there have been symptoms, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. The VA needs to identify a disability, not symptoms of a disability; although pain that causes limitation of function may result in a disability for VA purposes. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Here, the weight of the evidence demonstrates that the Veteran does not currently have a diagnosis of arthritis of the right hip. There is also no basis on which to find that arthritis of the right hip has been present at any point during the claim or appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The VA and private medical records in the claims file contain no diagnoses of right hip arthritis. Furthermore, in July 2010 a VA orthopedic examiner reviewed July 2010 x-rays of the Veteran's right hip and specifically stated that the Veteran does not have arthritis of the right hip. He opined that the Veteran's complaints of right hip pain were actually due to the Veteran's lumbar spine disability, and specifically it was sciatica. The Court has indicated that, in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here the July 2010 VA examiner opined that the Veteran did not have any right hip arthritis and that he did not have any other right hip disability. There is no medical evidence to the contrary. Accordingly, service connection for right hip arthritis is not warranted. Id. Given that the medical evidence reveals that the Veteran does not have arthritis of the right hip, the Veteran's assertions that he has right hip arthritis secondary to his service-connected left heel ulcer is without merit. Since an element for establishing service connection on a direct basis or a presumptive basis is the Veteran being diagnosed with arthritis of the right hip at some time during the pendency of his appeal and this claimant does not have this or a related diagnoses, the Board finds that entitlement to service connection for this disability must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Entitlement to an 10 percent rating for a left heel ulcer from February 6, 1994 is granted, subject to the law and regulation regarding the award of monetary benefits. Entitlement to a compensable rating for residuals of a shell fragment wound on the neck is denied. Entitlement to service connection for right hip arthritis is denied. REMAND The Veteran claims that he is entitled to a rating in excess of 30 percent for the residuals of his larynx injury. At his February 2010 Board hearing, the Veteran reported a great deal of difficulty breathing. In April 2010, the Board remanded the Veteran's claim for a VA medical examination to determine the current severity of the Veteran's residuals of his larynx injury. A higher rating under 38 C.F.R. § 4.87, Diagnostic Code 6520 for the residuals of the Veteran's larynx injury requires a pulmonary function test (PFT) showing Forced Expiratory Volume in one second (FEV-1) values of 40- to 55-percent predicted, with Flow Volume Loop that is compatible with upper airway obstruction. Unfortunately, when the Veteran was provided a VA examination for his larynx injury residuals in August 2010, the Veteran was not provided a PFT. Consequently, the Veteran's larynx claim must be remanded for a new VA examination that includes a PFT. The VA treatment records in the Veteran's electronic claims file subsequent to the most recent SSOC in September 2011 reflect treatment for the Veteran's left heel ulcer disability. The Board notes that the February 2008 VA examination report indicates that the Veteran has loss of function due to his left heel disability. It noted that it impairs walking due to pain with weigh bearing. Additionally the treatment records not previously considered by the AOJ describe the Veteran's gait. This pertinent evidence must be reviewed by the AOJ, and the AOJ must issue an SSOC with regard to the Veteran's claim for a rating in excess of 10 percent for his left heel disability. Additionally, since the Veteran has not had a VA examination of his left heel since July 2010, and he has indicated that it is worse than currently rated, he should be provided a new VA examination of the left heel which includes a thorough description of any loss of function the Veteran may have due to his left heel disability. The Veteran's Virtual VA file contains VA treatment records dated as recently as May 7, 2013. The Veteran's updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all of the Veteran's VA treatment records dated from May 8, 2013 to present. 2. When the above action has been accomplished, provide the Veteran an appropriate VA medical examination to determine the current severity of the Veteran's residuals of a larynx injury. The examination must include pulmonary function tests. The claims file should be provided to the examiner for review in conjunction with the examination. 3. When the action in paragraph 1 above has been accomplished, provide the Veteran an appropriate VA medical examination to determine the current severity of the Veteran's left heel ulcer disability. The examiner should state whether the Veteran has any loss of function due to the left heel disability, and if so, describe the loss of function in detail. The claims file should be provided to the examiner for review in conjunction with the examination. 4. When the above actions have been completed, readjudicate the issues on appeal. Issue a supplemental statement of the case which reflects review of all the evidence received since issuance of the October 2011 SSOC. The SSOC should provide the Veteran the rating criteria for scars in effect prior to August 20, 2002, and the criteria for the rating of scars that came into effect August 20, 2002. The SSOC should show specific consideration as to whether the Veteran is entitled to a rating in excess of 10 percent for his right heel disability based on limitation of function. The Veteran should be afforded the opportunity to respond and the case should then be returned to the Board for appellate review, if indicated. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs