Citation Nr: 1334968	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  90-44 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for an eye condition, including refractive error and allergic conjunctivitis.

2.  Entitlement to an initial disability rating higher than 20 percent for degenerative arthritis of the cervical spine.  

3.  Entitlement to an initial disability rating higher than 10 percent for a pain disorder.  

4.  Entitlement to an initial disability rating higher than 10 percent for gastritis with diverticulitis of the colon.  

5.  Entitlement to a separate compensable evaluation for stricture of the esophagus.  

6.  Entitlement to an initial compensable disability rating for allergic rhinitis/sinusitis.

7.  Entitlement to an evaluation in excess of 30 percent for prolapse of the rectum.  
8.  Entitlement to an effective date earlier than December 19, 2002, for an award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Byron Rhodes, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served as a member of the Arkansas National Guard from January 1969 to October 1983, consisting of numerous periods of active duty for training and inactive duty for training.

This case originally came to the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.  

The issues on appeal each have an extensive procedural history, which was previously detailed when the matter was last before the Board in July 2008.  At that time, the Board remanded all issues presently on appeal to the RO for further development.  
The Veteran testified before numerous Decision Review Officers (DROs) at the RO in Little Rock, Arkansas.  The Veteran also testified at hearings before a Veterans Law Judge at the RO in November 2003 and August 2010.  These transcripts have been associated with the claims file.  

When before the Board in July 2008, the issues now on appeal were addressed in two separate decisions under different docket numbers.  These separate appeals have now been consolidated under the earlier docket number for purposes of further appellate development and adjudication.  

The Board previously remanded the issue of entitlement to service connection for empty sella syndrome.  However, upon further review the RO noted that the claim for entitlement to service connection for empty sella syndrome was denied in a November 12, 2008 rating decision, of which the Veteran was notified on November 17, 2008.  The Veteran filed a general notice of disagreement which was received by the RO on November 12, 2008.  As the Veteran had not yet been notified that his claim for entitlement to service connection for empty sella syndrome had been denied, this cannot be a timely notice of disagreement.  There is no other evidence in the claims file to be construed as a timely notice of disagreement with the November 2008 rating decision.  38 C.F.R. § 19.26 (2013).

The case was brought before the Board most recently in November 2012, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include obtaining treatment records and affording the Veteran new VA examinations.  The Veteran's most recent treatment records from the VA Medical Center were obtained and associated with the claims file.  The Veteran was afforded multiple VA examinations in January and February 2013 for his claims.  Therefore, the Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

The issues of entitlement to service connection for an eye disability, entitlement to an increased rating for allergic rhinitis/sinusitis, and entitlement to an effective date prior to December 19, 2002 for the award of a TDIU 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 cervical spine disability is manifested by moderate limitation of motion, with pain; and there were no incapacitating episodes having a total duration of at least four weeks in a twelve-month period.

2.  Throughout the appeal period the Veteran's pain disorder has been manifested by sleep impairment, depression, and some impairment in social and occupational functioning.

3.  Throughout the appeal period the Veteran's gastritis with diverticulitis is manifested by diarrhea with abdominal distress.

4.  Throughout the appeal period the Veteran's esophageal disorder has been manifested by moderate stricture.

5.  Throughout the appeal period the Veteran's prolapsed rectum has been moderate with frequent recurrence.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 20 percent for a cervical spine disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, including Diagnostic Codes 5290, 5293 (effective prior to September 23, 2002), Diagnostic Code 5293 (effective on September 23, 2002), and Diagnostic Codes 5010, 5237, 5242, 5243 (effective on September 26, 2003), General Rating Formula for Diseases and Injuries of the Spine (2013).

2.  The criteria for an evaluation in excess of 10 percent for pain disorder have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9422 (2013).

3.  The criteria for an evaluation in excess of 10 percent for gastritis with diverticulitis have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7327-7319 (2013).

4.  For the entire appeal period the criteria for a separate 30 percent evaluation for stricture of the esophagus have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7203 (2013).

5.  The criteria for an evaluation in excess of 30 percent for a prolapsed rectum have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7334 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication his claims, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the rating decisions, statements of the case, and supplemental statements of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted.  See Shinseki, supra.  

Next, as indicated, VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting in the procurement of service treatment records, all pertinent pre-and post-service treatment records, and by providing an examination, when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In particular, the claims file contains the Veteran's service treatment records, as well as all post-service reports of VA and private treatment and examination, including records from the Social Security Administration (SSA).  Moreover, his statements in support of the claim are of record, including testimony provided at numerous hearings before DROs and from the November 2003 and August 2010 Board hearings.  The Board has carefully reviewed such statements and concludes that no available, pertinent evidence has been identified that remains outstanding.  The Board has also perused the medical records for references to additional treatment reports not of record, but likewise finds nothing to suggest that there is any outstanding evidence pertinent to the Veteran's claim. 

Furthermore, the Veterans Law Judge at the August 2010 Board hearing explained the issues on appeal and attempted to identify any pertinent evidence that may have been overlooked.  The Veterans Law Judge therefore satisfied all hearing officer duties as presently directed by 38 C.F.R. § 3.103(c).  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).   

Also, the Veteran was afforded VA examinations, most recently in January and February 2013, to address the medical issues raised by the claims of entitlement to an increased rating for a cervical spine disability, pain disorder, gastritis, and prolapsed rectum.  The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the service-connected disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  

Moreover, the Veteran has not asserted, and the evidence does not indicate, that his symptoms have materially increased in severity since that evaluation.  See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  

Otherwise, a VA examination is not necessary to address the remaining issues decided below.  The Board accordingly finds no reason to remand for further examination.  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the appeal.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence).  38 C.F.R. § 3.157 (b) (1); 3.400(o)(2).

Cervical Spine

The Veteran contends that his cervical spine disability should be rated higher than 20 percent.  For the reasons that follow, the Board finds that an increased rating is not warranted.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.  The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 direct VA to assign the minimum compensable rating for a joint where the joint is actually painful, unstable, or misaligned.  This directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis.  See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

The Veteran's cervical spine disability was originally rated under Diagnostic Code 5010-5290, for limitation of motion of the cervical spine.  See June 2002 rating decision.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  

In a May 2005 rating decision the Veteran's cervical spine disability rating was recharacterized as degenerative arthritis of the spine under the revised 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242.

Since the Veteran's initial claim for service connection was filed in 1997, there have been a number of changes in the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a.  The new criteria for rating intervertebral disc syndrome became effective September 23, 2002.  See 67 Fed. Reg. 54345 (Aug, 22, 2002).  Further, additional regulatory changes for rating all other back disorders became effective September 26, 2003, but these did not change the way intervertebral disc syndrome was rated, except for renumbering Diagnostic Code 5293 as Diagnostic Code 5243.  See 68 Fed. Reg. 51454-56 (Aug. 27, 2003).  In addition, 69 Fed. Reg. 32449 (June 10, 2004) corrected a clerical error in the Federal Register publication of August 27, 2003.

However, given the change in law, while VA may consider the old criteria for rating an intervertebral disc syndrome and all other back disorders for the entire period during which the appeal has been pending, it may only consider the new criteria for rating an intervertebral disc syndrome prospectively from September 23, 2002, and the new criteria for rating all other back disorders from September 26, 2003.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Rating Criteria Effective prior to September 23, 2002

Under the 'old' rating criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5290, limitation of motion of the cervical spine was assigned a 10 percent evaluation where there was slight limitation of motion, a 20 percent evaluation for moderate limitation of motion, and a 30 percent evaluation for severe limitation of motion. 

The terms 'mild,' 'slight,' 'moderate,' and 'severe' are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence.  38 C.F.R. § 4.6.

As to limitation of motion under old Diagnostic Code 5290, at a June 1998 VA examination the Veteran had flexion to 60 degrees and extension to 50 degrees.  He had lateral flexion to 40 degrees and rotation to 55 degrees.  

A May 1999 private treatment record showed the Veteran had slightly diminished range of movement and x-ray examination revealed spondylosis with anterior osteophytes and narrowing.  

At his April 2002 VA examination he had flexion limited to 60 degrees, extension to 40 degrees, lateral flexion to 30 degrees bilaterally, and rotation limited to 55 degrees bilaterally.  X-rays showed degenerative arthritis of the cervical spine with spur formation.  

April 2003 range of motion testing revealed cervical spine flexion limited to 55 degrees, extension to 25 degrees, left rotation limited to 10 degrees, right rotation limited to 55 degrees, left lateral flexion limited to 10 degrees and right lateral flexion limited to 20 degrees.  

At his October 2008 examination he had flexion limited to 30 degrees, right lateral rotation limited to 50 degrees and left lateral rotation limited to 40 degrees.  His extension was to 50 degrees.  Repetitive testing showed no additional loss of range of motion.

At the Veteran's February 2013 VA examination on range of motion testing the Veteran had flexion and extension limited to 40 degrees with pain.  Right and left lateral flexion was limited to 35 degrees with pain.  Right and left lateral rotation was limited to 60 degrees with pain.  There was no change to range of motion findings on repeat testing.

The VA examiners have not characterized the findings of range of motion as severe, or even moderate, and there is no other evidence suggesting that the range of motion of the cervical spine was severe throughout the appeal period.  

Based on the foregoing, there is objective evidence showing the Veteran's cervical spine disability was appropriately characterized as moderate cervical spine limitation of motion throughout the appeal period.  Accordingly, under Diagnostic Code 5290, the criteria for a rating higher than 20 percent are not met.  

As already alluded to, in considering range of motion, painful motion is a factor.  As noted, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca, supra.  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  The October 2008 VA examiner noted painful motion, but no evidence of weakness or tenderness.  The February 2013 VA examiner found that the Veteran had no functional loss other than pain on movement, which was accounted for in the range of motion findings.  There is no evidence that there is additional functional loss beyond what is reflected in the range-of-motion measurements.  In reviewing the record, the Board finds that the evidence does not demonstrate that pain on use or during flare-ups results in additional functional limitation to the extent that the cervical spine is severely limited in motion under the former Diagnostic Code 5290.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.

Under the 'old' rating criteria for rating intervertebral disc syndrome (IVDS), the criteria for 20 percent is evidence of moderate recurring attacks.  A 40 percent rating is warranted where there is evidence of severe recurring attacks with intermittent relief.  The criteria for a 60 percent rating requires evidence of pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disability, and little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293.

The objective evidence does not show the Veteran meets the criteria for a higher rating at any point during the appeal period.

At his April 2002 VA examination the Veteran reported that he was limited in his ability to carry more than 30 pounds.  He also reported neck pain which was a 7 to 8/10 in severity.  At his October 2008 VA examination the Veteran reported stiffness in his neck and occasional numbness in his bilateral arms and legs.  He was diagnosed with chronic cervical sprain with spondylosis.  At the Veteran's February 2013 VA examination he reported daily pain, without any specific cause, lasting up to 4 hours.  There was evidence of mild radiculopathy to the upper bilateral extremities.  The Veteran had no episodes of incapacitating episodes over the previous 12 months.  X-rays showed fusion at C6-C7 with strong bony union.  There was osteophyte formation throughout the cervical spine.  In a March 2013 addendum opinion the examiner stated the Veteran's flare ups of pain caused him to rest 4 hours per day.  He was unable to provide degrees of limitation, but the Veteran reported that he had to lie down during flare ups of pain.  Although the February 2013 VA examiner found evidence of IVDS of the cervical spine, the Veteran had no incapacitating episodes over the previous year, severe recurring attacks or evidence of pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disability, and little intermittent relief.  

These findings, particularly in the absence of severe recurring attacks, do not show that his cervical spine disability more nearly approximates or equates to severe IVDS to warrant a rating higher than 20 percent rating under the former Diagnostic Code 5293, even considering pain on movement, pain on use, or pain during flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.  

Consequently, the Board finds that the Veteran is not entitled to an evaluation higher than 20 percent at any point during the appeal period.

Rating Criteria effective on September 23, 2002

The criteria for evaluating limitation of motion of the cervical spine, as in effect prior to September 23, 2002, remained the same, despite other revisions to spine evaluation criteria that were made effective on September 23, 2002.

Effective September 23, 2002, the criteria for evaluating IVDS were revised.  Under the revised criteria, IVDS (preoperatively or postoperatively) is evaluated on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293.

IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating.  IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating.  IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002).

The accompanying notes to Diagnostic Code 5293 provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  'Chronic orthopedic and neurologic manifestations' means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so.

Note (2):  When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnosis code or codes.

In regard to peripheral nerve (sciatic nerve) injuries, a 10 percent rating requires mild incomplete paralysis.  A 20 percent rating requires moderate incomplete paralysis.  38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620, 8720.

For such other nerves as the external popliteal nerve (common peroneal), internal popliteal nerve (tibial), and anterior crural nerve (femoral), incomplete paralysis warrants a 10 percent rating when mild, 20 percent rating when moderate, and 30 percent rating when severe.  38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8524, 8526.  The posterior tibial nerve is evaluated as 10 percent disabling for either mild or moderate incomplete paralysis, and as 20 percent disabling for severe incomplete paralysis.  38 C.F.R. § 4.124a, Diagnostic Code 8525.

Moderate incomplete paralysis is required for a compensable (10 percent) rating for the musculocutaneous nerve (superficial peroneal) and anterior tibial nerve (deep peroneal).  38 C.F.R. § 4.124a, Diagnostic Codes 8522, 8523.  Severe to complete paralysis is required for a compensable (10 percent) rating for the internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve.  38 C.F.R. § 4.124a, Diagnostic Codes 8527, 8528, 8529, 8530.

The term 'incomplete paralysis' indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

With respect to the rating criteria based on incapacitating episodes, there is no competent and credible evidence in the record that the Veteran's cervical spine disability has required physician-prescribed bed rest for at least two weeks at any point during the appeal period.  This is true for all times under consideration and, therefore, by definition he has not experienced an incapacitating episode of the type specifically contemplated by this VA regulation.

The Board next addresses whether a higher rating under Diagnostic Code 5293 would result if chronic orthopedic and neurologic manifestations were separately evaluated.  As shown on VA examination and VA medical records, as described above, the orthopedic manifestations of the Veteran's cervical spine disability consist of pain and some associated or consequent limitation of motion.

Any pain localized to the cervical spine already has been evaluated under chronic orthopedic manifestations, and to separately rate neck pain additionally as a neurologic manifestation would violate the rule against pyramiding.  38 C.F.R. § 4.14.

As for neurological manifestations, at his October 2008 VA examination the Veteran specifically denied bowel or bladder problems.  He did report pain and numbness radiating into his arms and legs.  However, the examiner specifically stated that the Veteran did not have any neurologic deficit.  At his February 2013 VA examination the Veteran reported right and left upper extremity numbness, pain, and paresthesias.  The examiner determined this was due to mild radiculopathy.  The Board observes the Veteran was granted service connection for this condition in an April 2013 rating decision.  At the February 2013 VA examination there was no evidence of other neurologic abnormalities, to include bowel or bladder problems.

As noted, the Veteran is separately service-connected for radiculopathy of the bilateral upper extremities.  The Veteran has not disagreed with the assigned disability ratings or the effective dates.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.)  Therefore, this matter is considered resolved and is not in appellate status.

The Board finds no other evidence of record which would warrant assignment of a separate rating for neurologic manifestations resulting from the cervical spine disability.   

Under the orthopedic evaluation criteria in effect prior to September 26, 2003, the Veteran does not meet the criteria for a rating higher than 20 percent for his cervical spine disability at any point during the appeal period.  

Rating Criteria effective on September 26, 2003

The revised criteria effective on September 26, 2003, are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine.

Under the new General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, a 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.

Note (1):  Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral rotation are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the nearest five degrees.

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Additionally, under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code.  The criteria for rating peripheral nerve injuries have been provided in the section above.

The Board will consider whether the new rating criteria warrant a higher evaluation for the Veteran's cervical spine disability.  

With regards to the Veteran's range of motion testing, as has been noted, at no time during the appeal did he have flexion of the cervical spine limited to 15 degrees or less.  He also has never been diagnosed with ankylosis of the cervical spine.  Aside from the VA regulatory definition already provided in Note (5) to Diagnostic Codes 5235-5242, consider also that ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure"); see also Colayong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because he has retained some quantifiable measure of range of motion, even if not normal range of motion, the Veteran by definition does not have ankylosis, either favorable or unfavorable.
Throughout the appeal period there is no suggestion of ankylosis of the cervical spine that could warrant a higher rating.  Accordingly, there is no evidence a higher rating is warranted for limitation of range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

As noted, the revised or current Diagnostic Codes 5237 and 5242 are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  This implies that the factors for consideration under the holding in DeLuca are now contemplated in the rating assigned under the General Rating Formula.  The Board took into account the DeLuca factors to determine if a higher rating was warranted.

As has been discussed, the Veteran is already receiving separate ratings for radiculopathy of the bilateral upper extremities.  There is no evidence that any additional, and separate, neurological rating is warranted aside from this.  Indeed, the Veteran himself has denied experiencing any associated bowel or bladder dysfunction.

The application of the revised criteria of the General Rating Formula for Diseases and Injuries of the Spine would not result in a rating higher at any point during the appeal period for the Veteran's cervical spine disability.

Effective September 26, 2003, IVDS is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  The former rating formula has been discussed in the preceding paragraphs.  The latter formula involves evaluating IVDS based on the total duration of incapacitating episodes over the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

As previously discussed and considered in relation to the old rating criteria, which are essentially the same as the current criteria, the medical evidence does not demonstrate the Veteran has incapacitating episodes having a total duration of at least two weeks during a period of 12 months.  Therefore, a higher rating is not warranted under the revised or current Diagnostic Code 5243, as it pertains to evaluation according to incapacitating episodes.

In addition to the medical evidence, the Board has considered the statements and testimony of the Veteran in support of his claim.  At his November 2003 Board hearing the Veteran testified to decreased range of motion and pain in his neck.  He also testified to symptoms including tightness and stiffness.  At his August 2010 Board hearing the Veteran testified that he had neck pain and that his condition had worsened since his previous examination and that he was experiencing radiculopathy down his bilateral arms.  

The Veteran, as a layman, is competent to report on that as to which he has personal knowledge, such as pain and limitation of motion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  Since the allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and, thus, probative.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating his competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence).

As a layman, however, he is not further competent to provide a probative opinion on a medical matter, especially the severity of his cervical spine disability in relation to the applicable rating criteria.  The VA compensation examiner conducted objective range of motion testing and reported the Veteran's subjective complaints.  The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.'  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

The Board concludes that the evidence discussed above supports no more than a 20 percent rating for the Veteran's cervical spine disability.  Consequently the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Pain Disorder

The Veteran's pain disorder has been rated as 10 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9422.  Under this Diagnostic Code a 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

A 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  Id.

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships.  Id.

A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name.  Id.

As evidenced by use of the phrase "such symptoms as," followed by a list of examples, this list of symptoms in the rating criteria is meant to be mere examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation.  Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002).  However, if the evidence shows the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Mauerhan, at 443.  The Federal Circuit Court has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). 

The Board has considered whether a higher evaluation is warranted, but for the reasons discussed below finds that a 10 percent evaluation is proper.

In a June 1998 VA examination the Veteran reported that he was depressed.  He also reported sleep impairment in that he could not sleep unless he drank alcohol.  He also reported suicidal ideation, but no intent.  His speech was within normal limits for rate and rhythm and his mood and affect were generally appropriate to content.  The examiner also found that his thought processes and associations were logical and no gross memory impairment was noted.  His insight was somewhat limited.  He denied suicidal intent.  He was diagnosed with pain disorder associated with psychological factors and a general medical condition.  He was assigned a GAF score of 55.

In an August 1999 examination report the Veteran reported that his symptoms included depression, anger, worry, and anxiety.  He reported being isolated and staying to himself.  He also reported black out conditions which occurred during drinking episodes.  He also admitted to explosive outbursts and irritability.  He had low energy and difficulty concentrating.  He had suicidal ideations as recently as half a year earlier.  His psychological diagnoses were major depressive disorder, alcohol dependence, and intermittent explosive disorder.  She also noted he had chronic pain, but she did not diagnose him with a pain disorder.  The examiner noted that the Veteran appeared to be stuck in a situation from service in 1983 where he felt he was mistreated.  She opined he was in need of treatment especially rehabilitation services for alcohol dependence and explosive outbursts and psychotherapy for his depression.

In a December 2001 VA examination the Veteran continued to suffer from alcohol dependence and depression.  The examiner noted that the intermittent explosive disorder had subsided since 1999.  The Veteran denied blackouts with drinking.  He still reported a lack of energy during the day.  His psychiatric diagnoses included major depressive disorder, alcohol dependence, and intermittent explosive disorder.  He was assigned a GAF score of 55.

The Veteran was afforded a VA examination in January 2002.  His complaints included pain and mistreatment in the military.  He reported that he was tired frequently and if his children were crying or screaming he would "blow up," but he had not physically hit anyone since 1997.  He denied sleep disturbances if he took his medication, but he would awake to pain on occasion.  He reported depression.  He denied suicidal or homicidal ideation.  

He reported that his relationship with his wife ranged from poor to average.  He visited with friends or his brother a few times a week.  The Veteran was fully cooperative on the examination and his complaints stemmed more from mistreatment in the military than to pain or depression complaints.  There was no overt anxiety noted.  His speech was within normal limits and his thought processes and associations were logical and tight.  There was no evidence of gross impairment in memory.  There was no evidence of hallucinations or delusions.  His insight was somewhat limited in judgment.  The Veteran denied suicidal or homicidal ideation.

He was diagnosed with alcohol dependence and pain disorder associated with psychological factors and a general medical condition.  He was assigned a GAF score of 55.

In an April 2002 addendum opinion the examiner clarified that the Veteran's GAF score would be 55 based solely on his pain disorder, independent of alcohol dependence.  The examiner also noted that the Veteran had presented with many different complaints and a variety of factors causing these complaints.  The examiner believed that numerous other factors contributed to the Veteran's functioning independent of what may be related to his service-connected disability.

In a separate April 2002 VA report the Veteran reported that he and his wife were "not clicking."  He reported spending a small portion of time outside doing yard work.  He reported drinking at least a 6 pack of beer per day.  He was assigned a GAF score of 80.

The examiner found the Veteran's speech was within normal limits and his mood and affect were appropriate to content.  His thought processes and associations were logical and tight without confusion.  His judgment and insight were adequate.  There was no gross impairment in memory and the Veteran was oriented in all spheres.  There was no evidence of hallucinations or delusions.  

At his October 2008 VA examination the Veteran reported that he had pain in his cervical and lumbar spine, hips, legs, and headaches.  He stated that all he could do was watch television, listen to the radio, and do light cooking.  He reported that he did not socialize a great deal because he would get irritable and did not like to be around people when he is in pain.  

At his October 2008 VA examination the Veteran was appropriately dressed.  He was cooperative and pleasant with good eye contact.  His speech was logical and coherent and within normal limits.  His though processes were logical and tight.  His memory was also largely intact.  He reported no hallucinations or delusions.  He also denied suicidal or homicidal ideations.  He was assigned a GAF of 43.  

In June 2009 the Veteran reported that he was feeling depressed because the VA had recently decreased his service-connected status and he was going to be receiving less money.  He felt angry, had decreased energy, and decreased interest.  

At his February 2013 VA examination the Veteran reported a good relationship with his family and overall that his mood was "not too bad."  He was not taking any psychotropic medications or receiving current mental health treatment.  He did report sleep disturbances due to pain and sinus condition.  

The examiner determined that a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication.  

At his August 2010 Board hearing the Veteran testified that he was not currently being followed for a psychiatric disorder, but he was experiencing depression.  He also testified that he was normally in pain and that his grandchildren could get on his nerves, which intensified his pain.  He also testified that he has threatened people before when he has things going on and cannot concentrate.

The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more closely approximates a 30 percent evaluation.  

The Veteran has been diagnosed with multiple psychiatric disorders, such as alcohol dependence and major depressive disorder.  See e.g., August 1999 private treatment record.  However, the Board will only focus on the Veteran's service-connected pain disorder and whether his symptoms for this condition, acting alone, warrant a higher evaluation.

The Veteran reported suicidal ideations at his June 1998 and August 1999 examinations, but denied intent.  He later denied suicidal ideations, as well as hallucinations or delusions.  See January 2002 VA examination report.  He also reported explosive outbursts and irritability, which caused his diagnosis of intermittent explosive disorder.  See also December 2001 treatment record.  The Board has reviewed all of the Veteran's symptoms when determining an appropriate rating for his pain disorder.  The evidence of record does not indicate that the Veteran's pain disorder, acting alone, causes symptoms which warrant an evaluation in excess of 10 percent.

In a January 2002 VA examination the Veteran reported anger outbursts.  He also reported sleep disturbances in that he would wake up with pain.  See also February 2013 VA examination report.  The Veteran has also reported feeling depressed, due in part to his service-connection status and the amount of money he receives monthly.  See June 2009 VA treatment record.  These symptoms have been considered when determining an appropriate evaluation.

At the October 2008 VA examination the Veteran identified social impairment due to his pain disorder.  He stated that when he was in pain he did not like to socialize and all that he could do was watch television, listen to the radio, and do light cooking.  In his most recent, February 2013 VA examination the Veteran reported a good relationship with his family overall.  Ultimately the examiner found that the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication.  This is consistent with the Veteran's August 2010 Board hearing testimony that he was not being treated for a psychiatric condition.  The Veteran's slight social and occupational impairment symptoms were taken into account with the 10 percent evaluation.

The Veteran's speech and though processes have been normal.  See e.g., April 2002 and October 2008 VA examination reports.  The examiners have also determined that there is no gross impairment in the Veteran's memory.  Id.  There is also no evidence of panic attacks or grossly inappropriate behavior, which may warrant a higher evaluation.

As noted in the April 2002 VA addendum opinion, the Veteran's pain disorder caused some of his symptoms, but he also had a variety of other factors, non-service-connected, which were causing his complaints.  Specifically the January 2002 examiner noted the Veteran's complaints stemmed more from military mistreatment than to pain or depression.

It is clear from the competent evidence of record that the Veteran's pain disorder manifestations throughout the appeal period have consistently included sleep impairment, depression, and some impairment in social and occupational functioning.  This is consistent with his existing 10 percent rating.

Also of record are the Veteran's Global Assessment of Functioning (GAF) scores.  GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care.  The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record and they will not be relied upon as the sole basis for an increased rating.

The Veteran was assigned a GAF score of 55 at his June 1998 and January 2002 VA examinations.  In April 2002 the Veteran was assigned a GAF score of 80.  At his October 2008 VA examination he was assigned a GAF score of 43.  At his February 2013 VA examination he was assigned a GAF score of 70.

GAF scores ranging between 41 and 50 indicate some serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  GAF scores ranging between 51 and 60 indicate some moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  GAF scores ranging between 71-80 denote no more than slight impairment in social functioning, with transient and expectable reactions to psychological stressors.  

Although the Veteran's GAF scores have ranged from 43 to 80, a GAF score will not be relied upon as the sole basis for an increased disability rating.  Instead, the Board must consider the entire claims file, including the private treatment records, VA examinations, and VA treatment when determining the proper rating.  In viewing the evidence of record in its entirety, the Board finds that the Veteran's overall disability picture continues to most closely approximate that contemplated by a 10 percent evaluation.

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor.  The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that warrants the assignment of a 10 percent rating.  See 38 C.F.R. § 4.7.

In addition to the medical evidence, the Board has considered the statements and testimony of the Veteran in support of his claim.  The Veteran, as a layman, is competent to report on that as to which he has personal knowledge, such as pain, depression, and social impairment.  See Jandreau, supra; Barr, supra. and 38 C.F.R. § 3.159(a)(2).  The Board finds the Veteran's statements to be credible and, thus, probative.  See Buchanan, supra; Rucker, supra.

However, as a layman, without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his pain disorder in relation to the applicable rating criteria.  The VA examiners have taken into account the Veteran's subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of his pain disorder.  This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  Madden, supra.

The Board concludes that the evidence discussed above supports no more than a 10 percent rating for the Veteran's pain disorder.  Accordingly, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  

Gastritis with Diverticulitis & Separate Evaluation for Stricture of the Esophagus

The Veteran has been assigned a 10 percent evaluation for gastritis with diverticulitis and esophageal stricture under Diagnostic Codes 7327-7319.  He contends both a higher evaluation for gastritis and a separate evaluation for esophageal stricture are warranted.

Diagnostic Code 7327 for diverticulitis is to be rated as irritable colon syndrome, peritoneal adhesions, or colitis, ulcerative, depending upon the predominant disability picture.  The Veteran has been rated under the criteria for irritable colon syndrome.  Under Diagnostic Code 7319 for irritable colon syndrome (spastic colitis, mucous colitis, etc.) a 10 percent evaluation is warranted for moderate disability; frequent episodes of bowel disturbance with abdominal distress.  A 30 percent rating is warranted for severe disability; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.

In a July 1995 private treatment record the Veteran was assessed as having esophagitis and an esophageal stricture.  See also April 1997 treatment record.

Endoscopic evaluation showed peptic ulcer disease with esophagitis and gastritis.  See December 2001 treatment record.  At his January 2002 VA examination the Veteran reported intermittent symptoms of diarrhea and pyrosis.  The Veteran was diagnosed with gastritis with diverticulitis.  

In an April 2003 statement, a VA examiner opined that the Veteran's most recent examination did not show evidence of an esophageal stricture.  He opined that if esophagitis or stricture was found, it could or would be related to gastritis.  At a separate evaluation the Veteran reported that he was diagnosed with an esophageal stricture in 1990 or 1991.  However, the examiner found no evidence of an esophageal stricture at the current examination.

In March 2004 the Veteran's examination revealed esophagitis and gastritis.  The Veteran was afforded a VA examination in October 2008.  He reported abdominal burning and discomfort for which he had been prescribed Prevacid.  He had no alternating bouts of diarrhea or constipation and no pain or cramping with bowel movements.  

On examination the Veteran had good sphincter tone, no stricture, no masses, and no evident bleeding.  He was diagnosed with gastritis and esophagitis due to reflux with associated distal esophageal stricture and diverticular disease of the sigmoid colon.  However, his diverticulitis was asymptomatic at that time.  

At the Veteran's February 2013 VA examination the examiner noted the Veteran had been diagnosed with gastroresophageal reflux disease, hiatal hernia, and esophageal stricture in 1991.  The Veteran reported he was taking medication but still experienced infrequent episodes of epigastric distress, heartburn, reflux, and nausea.

The Veteran had a mild esophageal stricture with reflux and epigastric pain.  The examiner related the Veteran's reflux disease and esophageal stricture to his chronic esophagitis.  The stricture was one contributing factor causing esophagitis.  

In a March 2013 addendum the examiner stated that the Veteran's diverticulitis was of the lower colon and a separate body system from upper gastritis.  It was a separate condition from the Veteran's esophagus stricture.  

In a separate February 2013 examination the Veteran reported that his diverticulosis caused pain and cramping in his lower abdomen and constipation alternating with diarrhea.  The episodes occurred frequently, with a severe episode 2 1/2 months earlier.  The Veteran had also lost 5 pounds, which was attributed to his intestinal condition.  There was no evidence of malnutrition.  CT scans showed evidence of diverticulosis throughout the colon without evidence of diverticulitis.  

At his November 2003 Board hearing the Veteran testified that he experienced diarrhea regularly, but not constipation.  At his August 2010 Board hearing the Veteran testified that he had constant diarrhea and stomach pain.  He also testified to having regurgitation and acid reflux regularly to the point where he could not swallow.

In reviewing the evidence of record, the Board finds that a higher evaluation is not warranted for gastritis with diverticulitis.  While the Veteran testified to diarrhea and stomach pain, the Veteran's gastrointestinal symptoms are not severe with more or less constant abdominal distress.  To the contrary, at his February 2013 examination the Veteran reported frequent episodes of abdominal distress, but denied "more or less constant abdominal distress."  His most recent severe intestinal attack was 2 1/2 month earlier.  In view of the evidence of record, the Board finds that a 10 percent evaluation for gastritis is appropriate.  

However, the Board also finds that, for the entire rating period the Veteran has had esophageal stricture, which was originally included as part of the Veteran's gastritis evaluation.  At his August 2010 Board hearing the Veteran testified these symptoms included a tightening of his esophagus.  The March 2013 examiner clarified that this condition is not related to diverticulitis and is a completely separate condition.  Accordingly, a separate 30 percent evaluation is warranted for moderate esophagus stricture.  See 38 C.F.R. § 38 C.F.R. § 4.114.  A higher rating is not warranted as the evidence does not show the Veteran is only able to have liquids or has marked impairment of his general health.  38 C.F.R. § 4.114, Diagnostic Code 7203.

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disabilities in his favor.  The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the current assigned rating for gastritis and a separate, 30 percent evaluation for esophagus stricture.  See 38 C.F.R. § 4.7.

The Board has also considered whether a separate and/or higher rating may be assigned for the Veteran's gastrointestinal conditions under any other diagnostic code.  The Veteran's gastritis is appropriately rated using the irritable colon syndrome criteria.  He does not have evidence of symptoms analogous to ulcerative colitis where there are numerous attacks each year, malnutrition, and general debility.  The rating criteria for peritoneum adhesions are also not applicable as there is no evidence of partial obstruction manifested by delayed motility, at a minimum.  Thus, a separate, or alternative rating, is not warranted.

In addition to the medical evidence, the Board has considered the Veteran's statements in support of his claim.  The Veteran, as a layman, is competent to report matters of which he has personal knowledge, such as stomach pain and diarrhea.  See Jandreau, supra; Barr, supra; 38 C.F.R. § 3.159(a)(2).  

However the Veteran is not further competent to provide a probative opinion on the severity of his gastrointestinal conditions in relation to the applicable rating criteria.  The VA compensation examiners have measured the objective evidence and reviewed the Veteran's subjective complaints of problems swallowing, diarrhea, and stomach pain.  This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  Madden, supra.

The Veteran is not entitled to a higher evaluation for his gastritis with diverticulitis at any point during the appeal period.  A 30 percent evaluation is warranted for the Veteran's esophagus stricture, effective October 24, 1994, the date his original gastritis claim was received.  The Board has considered whether the benefit of the doubt rule applies to the present appeal.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.  However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied.

Prolapsed Rectum

The Veteran has been assigned a 30 percent evaluation for his prolapsed rectum under 38 C.F.R. § 4.114, Diagnostic Code 7334.  Under this Diagnostic Code a 30 percent evaluation is warranted for a moderate prolapse with persistent or frequently recurring prolapse.  A 50 percent evaluation is warranted for severe (or complete), persistent prolapse.

The Veteran was originally granted service connection for a prolapsed rectum in a February 1995 rating decision.  The Veteran had been diagnosed with a small prolapsed area of the rectal mucosa in a March 1993 treatment record.

At an October 2000 VA examination the examiner found no evidence of a prolapsed rectum.  At his March 2001 procedure for incision and drainage of perianal abscess, the Veteran had a normal rectal examination.  Again in June 2001 the Veteran's rectal examination was normal.  

At his April 2003 VA examination the examiner found "absolutely no evidence of any sort of prolapse of the rectum and with the findings present described in his history, seriously doubt the diagnosis of prolapsed rectum ever being accurate."

At his November 2003 VA examination the Veteran had a normal rectal examination.  At his March 2004 VA examination there was no evidence of rectal prolapse.

At the Veteran's February 2013 VA examination he was noted to have internal or external hemorrhoids, anal/perianal fistula, rectal fissure, and peri-rectal abscess.  The Veteran did not have rectal prolapse at this examination.

Subsequent to the March 1993 treatment record diagnosing the Veteran with a prolapsed rectum, the objective evidence of record indicates that the Veteran has had normal rectal examinations.  The Board finds the Veteran's current 30 percent rating is appropriate.  In view of the examination findings, the Veteran does not have severe (or complete), persistent rectum prolapse.
The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor.  The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the current assigned rating.  See 38 C.F.R. § 4.7.

The Board has also considered whether a separate and/or higher rating may be assigned for the Veteran's prolapsed rectum under any other diagnostic code.  However, the Veteran is already receiving separate compensation ratings for hemorrhoids and gastritis and diverticulitis, which encompass his gastrointestinal symptoms.  The February 1995 rating decision specifically granted the Veteran's prolapsed rectum as a separate condition from his hemorrhoids and assigned a separate rating.  Thus, a separate, or alternative rating, is not warranted for the Veteran's prolapsed rectum.

The Board has also considered the Veteran's statements in support of his claim.  However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative opinion on the severity of his prolapsed rectum in relation to the applicable rating criteria.  Multiple VA examiners have measured the objective evidence and found that the Veteran has a normal rectum.  This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

The Veteran is not entitled to a higher evaluation for his prolapsed rectum at any point during the appeal period.  The Board has considered whether the benefit of the doubt rule applies to the present appeal.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied.




Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1).  The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.'  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

The Veteran's service-connected conditions are appropriately rated.  His primary symptoms are cervical spine pain and limitation of motion, sleep disturbances and social impairment, abdominal pain with diarrhea, esophageal stricture, and a prolapsed rectum.  All of his symptoms are accounted for in the regular schedular rating criteria.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule 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.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

As the assigned schedular evaluations for the service-connected disorders are adequate, referral for an extra-schedular rating is unnecessary.  Thun, supra.  Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule.  To the extent that the Veteran argues he is unable to work due to his service-connected disorders, multiple examiners have found that he is able to work.  See e.g., April 2002 and February 2013 VA examiners.  The Veteran's findings from the SSA also took into account non-service-connected disabilities including a right inguinal hernia and left leg fracture.  Extra-schedular referral is not warranted under the circumstances presented.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

Entitlement to an initial disability rating higher than 20 percent for degenerative arthritis of the cervical spine is denied.

Entitlement to an initial disability rating higher than 10 percent for a pain disorder is denied.

Entitlement to an initial disability rating higher than 10 percent for gastritis with diverticulitis is denied.

Entitlement to a separate 30 percent evaluation for stricture of the esophagus is granted, effective October 24, 1994, subject to the applicable provisions governing payment of monetary awards.

Entitlement to an evaluation in excess of 30 percent for a prolapsed rectum is denied.


REMAND

At the Veteran's February 2013 VA examination the examiner opined that the Veteran's eye corneal abrasion in 1978 healed and did not cause any refractive error.  The Veteran's conjunctivitis began in 1978 and has been described as allergic or chronic.  He opined it was more likely than not that this was related to his current episodes of conjunctivitis.  However, in a March 2013 addendum opinion the examiner stated he could not tell if a current episode of conjunctivitis was related to any past episode.  As this opinion is contradictory, the February 2013 VA examiner should be contacted for an addendum opinion.  
In February 2013 the Veteran submitted an authorization form for the VA to obtain private treatment records from the Arkansas Allergy and Asthma Clinic for his rhinitis and sinusitis claim.  There is no evidence that the AOJ attempted to retrieve these treatment records.  In obtaining relevant records from a non-Federal agency or department, reasonable efforts will generally consist of an initial request and at least one follow up.  Id at (c)(1).  That was not done in this case.  On remand, the Veteran should be requested to fill out a new authorization form and the AOJ should use reasonable efforts to obtain the records identified.
The Veteran has provided evidence indicating he is unable to work because of his service-connected disabilities.  Only service-connected disabilities may serve as grounds for granting a TDIU, and he is still trying to establish his entitlement to service connection for his eye disorder.  As for the Veteran's claim of entitlement to an effective date prior to December 19, 2002 for a TDIU, the Court has held that all issues 'inextricably intertwined' with an issue certified for appeal are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  As the outcome of the Veteran's TDIU claim is impacted by the determination of whether the Veteran's claimed eye disorder is related to service, the TDIU claim is considered to be inextricably intertwined with the service connection claim on appeal.  Consequently, the claim of entitlement to a TDIU rating must be remanded to the AOJ in accordance with Harris.

Accordingly, the case is REMANDED for the following action:
1.  Ask the Veteran to provide authorization to obtain any outstanding, relevant private records, to include records from the Arkansas Allergy and Asthma Clinic.  The Veteran should be asked to include addresses for all identified providers.  After securing the necessary authorization, these records should be requested.  If any records are not available, the Veteran should be notified of such.  

2.  Request that the February 2013 VA examiner offer an addendum opinion regarding the Veteran's claimed conjunctivitis.  The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination.

The examiner should review his February 2013 opinion relating the Veteran's conjunctivitis to service against his March 2013 opinion which stated there was no way to tell if current conjunctivitis was related to a past diagnosis.  Specifically, the examiner should opine whether it is at least as likely as not that the Veteran's current conjunctivitis is related to service.  

The examiner should provide a complete rationale for any opinion provided.  Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why.

If further examination of the Veteran is needed, he should be scheduled for an examination.  The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report.  See 38 C.F.R. § 3.655 (2013).  

3.  Ensure the opinion is responsive to this determinative issue.  If it is not, take any needed corrective action.  See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2.

4.  After the development requested above has been completed to the extent possible, the record should again be reviewed.  If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.  

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).

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).



______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs