Citation Nr: 1335314	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-11 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 30 percent for service-connected bilateral pes planus.

2.  Entitlement to a disability evaluation in excess of 20 percent for service-connected residuals of a left shoulder sprain.

3.  Entitlement to a disability evaluation in excess of 10 percent for service-connected hemorrhoids with pruritus ani and rectal leakage.

4.  Entitlement to a compensable evaluation for service-connected post-operative residuals of a cholecystectomy.

5.  Entitlement to a compensable evaluation for a service-connected right knee arthroscopy scar.

6.  Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for an Arnold-Chiari malformation with dizziness, sleep problems, and head pain.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from February 1979 to July 1992.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2008 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 

In his February 2010 substantive appeal, the Veteran requested a hearing before a member of the Board, but withdrew that request in a March 2010 hearing election Form.


FINDINGS OF FACT

1.  The Veteran's pes planus is no more than severe, manifested by pain on use not relieved by arch supports, built up shoes, or orthotics and marked pronation of both feet, and is not manifested by extreme tenderness of plantar surfaces of the feet, inward displacement or severe spasm of the Achilles tendon on manipulation.

2.  Throughout the entire pendency of the appeal, the Veteran's service-connected left shoulder strain has more closely approximated painful motion equating to limitation of motion at shoulder level.

3.  The Veteran's hemorrhoids are productive of constant slight, or occasional moderate leakage; and are not productive of occasional involuntary bowel movements, necessitating wearing of pad, or external or internal hemorrhoids with persistent bleeding and with secondary anemia or with fissures.

4.  The Veteran's residuals of cholecystectomy are asymptomatic; the disability picture does not more nearly approximate mild symptoms.

5.  The Veteran's right knee arthroscopy scar is not shown to have been productive of deep scars, scars causing limited motion and covering an area exceeding 6 square inches (39 sq. cm.), superficial scars (without a limitation of motion) with an area or areas of at least 144 square inches (929 sq. cm.), superficial and unstable scars, superficial and painful scars on examination, or a limitation of function.

6.  A July 2003 RO decision severed entitlement to service connection for an undiagnosed illness manifested by dizziness, fatigue, sleep problems, and head pain which had been diagnosed as an Arnold-Chiari malformation; the Veteran did not appeal. 

7.  Evidence received since the July 2003 RO decision is not new and material and the Veteran's claim is not reopened. 


CONCLUSIONS OF LAW

1.  The criteria for entitlement to a disability evaluation in excess of 30 percent for service-connected bilateral pes planus have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5276 (2013).

2.  The criteria for entitlement to a disability evaluation in excess of 20 percent for service-connected residuals of a left shoulder sprain have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.3, 4.7, 4.40, 4.45, 4.59, Diagnostic Codes 5201 (2013).

3.  The criteria for entitlement to a disability evaluation in excess of 10 percent for service-connected hemorrhoids with pruritus ani and rectal leakage have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013).

4.  The criteria for entitlement to a compensable evaluation for service-connected post-operative residuals of a cholecystectomy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.114, Diagnostic Code 7318 (2013).

5.  The criteria for entitlement to a compensable evaluation for a service-connected right knee arthroscopy scar have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805, 7818, 7819 (2008, 2013). 

6.  The July 2003 RO decision that severed entitlement to service connection for an undiagnosed illness manifested by dizziness, fatigue, sleep problems, and head pain which has been diagnosed as an Arnold-Chiari malformation is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013).

7.  New and material evidence has not been received since the July 2003 RO decision and the Veteran's claim for entitlement to service connection for an Arnold-Chiari malformation is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2013).  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2013).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, 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.  Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy.  Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Bilateral Pes Planus

Service connection for bilateral pes planus was granted in a September 1992 RO decision and assigned an initial non-compensable (0 percent) rating, effective July1992.  In January 2007, the Veteran submitted a claim for an increased disability rating.  The RO initially denied the Veteran's claim for an increased rating in March 2008, but in a November 2012 rating decision, increased the Veteran's disability evaluation to 30 percent, effective January 2007, the date of the Veteran's increased rating claim.  

The Veteran's bilateral pes planus is currently evaluated under Diagnostic Code 5276.  Under that diagnostic code, a non-compensable rating is warranted for mild symptoms relieved by built-up shoe or arch support.  A 10 percent rating is warranted for moderate pes planus, with weight-bearing line over or medial to great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet.  For severe pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, unilateral flatfoot warrants a 20 percent rating and bilateral flatfoot warrants a 30 percent rating.  For pronounced bilateral flatfoot disability demonstrating marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation which is not improved by orthopedic shoes or appliances, a 30 percent rating is warranted for unilateral flatfoot and a 50 percent raging is warranted for bilateral flatfoot.  38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013).

The Board observes that the words "marked," "severe" and "pronounced" as used in the various diagnostic codes are not defined in VA's Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

As noted above, the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, because Diagnostic Code 5276 is not predicated on a limited range of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The Veteran was afforded a VA examination in January 2008, but declined an examination of his bilateral pes planus at the time.  Available VA outpatient treatment records are negative for treatment for pes planus.  

In October 2012, the Veteran was afforded another examination.  At that time, the Veteran complained of pain in his feet after standing for thirty minutes or walking a half mile.  He had pain and swelling with use of his feet, as well as pain with manipulation of the feet.  However, he did not have extreme tenderness of the plantar surfaces of the feet.  He had decreased longitudinal arch height on weight bearing and objective evidence of marked deformity of the feet.  The weight-bearing line fell over or medial to the great toes, but there was not marked pronation of the feet.  The Veteran had inward bowing of the Achilles tendon, but not marked inward displacement or severe spasm of the Achilles tendon on manipulation.  He reported the occasional use of orthotics, but complained that they did not relieve his symptoms.  The examiner described the Veteran's pes planus as moderate and reported that it would impact climbing, standing, walking, and running.  

Based on the above evidence, the Board finds that entitlement to a disability rating in excess of 30 percent for service-connected bilateral pes planus must be denied.  To warrant a higher disability rating for pronounced bilateral flatfoot disability, a veteran must demonstrate marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation which is not improved by orthopedic shoes or appliances.  Here, the VA examiner specifically found that the Veteran did not have extreme tenderness of the plantar services, marked pronation, or marked inward displacement and severe spasms of the Achilles tendon.  The Veteran has not presented any evidence to the contrary or even articulated a clear reason for why he believes a higher disability rating should be assigned.  Accordingly, a disability evaluation in excess of 30 percent for bilateral pes planus is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

Left Shoulder Strain

The Veteran claims that his left shoulder disability warrants ratings higher than the 20 percent rating assigned for this disability.  In January 2007, he filed a claim for an increased rating for his service-connected left shoulder strain, which at the time was assigned a 10 percent disability rating.  His claim was denied in a March 2008 rating decision, but in November 2012, the RO increased the Veteran's disability rating to 20 percent, effective January 2007, the date of the Veteran's claim.  

The Veteran's left shoulder strain has been evaluated under Diagnostic Code 5019-5201.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5019, 5201 (2013).  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(2013).  Diagnostic Code 5019 pertains to bursitis, which is rated based on limitation of motion of the affected part as degenerative arthritis (Diagnostic Code 5003), and Diagnostic Code 5201 pertains to limitation of motion of the arm.  38 C.F.R. § 4.71a, Diagnostic Code 5201.

Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203.  Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees.  Lifting the arm to shoulder level is lifting it to 90 degrees.  See 38 C.F.R. §4.71, Plate I.

Diagnostic Code 5201 provides that limitation of motion of the minor arm at shoulder level warrants a 20 percent disability rating.  Limitation of motion of the minor arm midway between the side and shoulder level warrants a 20 percent disability rating.  Limitation of motion of the minor arm to 25 degrees from the side warrants a maximum 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5201.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  As demonstrated by the medical evidence of record, the Veteran is right-handed and as such, minor, as opposed to major, shoulder disability ratings are applicable.  38 C.F.R. § 4.69 (2013).

The Veteran was afforded a VA examination in January 2008, but declined to have his left shoulder examined.  VA treatment records negative for any complaints of or treatment for shoulder problems.  In October 2012, the Veteran was afforded a VA examination of his left shoulder.  At that time, he complained of worsening pain in his left shoulder with motion, particularly extension of the left arm and attempting to lift the left arm.  He estimated that he had flare-ups of moderate pain in the left shoulder approximately once a week lasting twenty four hours and associated with over use.  

On examination, flexion of left shoulder was from 0 to 145 degrees with objective evidence of pain beginning at 125 degrees.  Abduction of the left shoulder was from 0 to 105 degrees, with objective evidence of pain beginning at 95 degrees.  Following three repetitions, flexion decreased to 135 degrees and abduction decreased to 95 degrees.  There was no tenderness to palpation or guarding.  Abduction strength was mildly reduced.  Hawkin's impingement test, empty can test, external rotation/infraspinatus strength test, and lift-off subscapularis test were positive.  There was no impairment of the clavicle or scapula or any ankylosis of the shoulder joint.  The Veteran was diagnosed with left shoulder ligamentous strain which the examiner noted could cause mild impact on the Veteran's ability to hold objects over his head with his left arm or lifting objects greater than 50 pounds.

None of the evidence above shows that the Veteran's range of motion of the left shoulder was limited to 25 degrees from the side, even considering De Luca factors, at any time during the period on appeal.  Accordingly a higher disability rating cannot be assigned under Diagnostic Code 5201.  Additionally, there is no evidence of ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula.  Therefore, Diagnostic Codes 5200, 5202, and 5203 are not applicable.  For all the above reasons, a disability evaluation in excess of 20 percent for service connected left shoulder strain is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

Hemorrhoids

The Veteran was granted service connection for hemorrhoids in September 1992 and assigned an initial non-compensable disability evaluation, effective July 1992.  In January 2007, the Veteran submitted the increased rating claim that is currently on appeal.  The claim was initially denied in a March 2008 RO decision, but in November 2012, the RO increased the Veteran's disability evaluation to 10 percent, effective January 2007, the date of his claim.  

The Veteran' service-connected hemorrhoids with pruritis ani and rectal leakage is evaluated under criteria of the Rating Schedule for the digestive system at 38 C.F.R. § 4.114. 

The disability is evaluated under the criteria of a hyphenated diagnostic code, 38 C.F.R. § 4.114, Diagnostic Code 7336-7332.  This hyphenated diagnostic code indicates that the service-connected disability is considered to be hemorrhoids, external or internal (7336) associated with a residual condition of impairment of sphincter control of rectum and anus (7332).  See 38 C.F.R. § 4.27 (2013).

Diagnostic Code 7332 provides that assignment of a zero percent rating is warranted for impairment of sphincter control of the rectum and anus that is healed or slight, without leakage.  A 10 percent rating is warranted for impairment of sphincter control of the rectum and anus with constant slight, or occasional moderate leakage.  A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing of pad.  A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements.  A 100 percent rating is warranted for complete loss of sphincter control.  38 C.F.R. § 4.114, Diagnostic Code 7332 (2013).

Diagnostic Code 7336 provides that assignment of zero percent rating is warranted for mild or moderate hemorrhoids, external or internal.  A 10 percent rating is warranted for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  A 20 percent rating is warranted for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures.  38 C.F.R. § 4.114, Diagnostic Code 7336 (2013).

As for other provisions under the Rating Schedule, the Veteran's hemorrhoids have never resulted in stricture of the rectum or anus or prolapse of the rectum and Diagnostic Codes 7333 and 7334 are not for application.

The only VA examination evaluation the Veteran's hemorrhoids was performed in October 2012.  At that time, the Veteran complained of hemorrhoids of many years duration with bleeding and pain about five times a year.  He estimated that each flare-up lasted approximately ten days on average.  He denied any surgery or thrombosis.  He described chronic anal itching and reported past treatment for a perianal condyloma acuminata which had not bothered him since.  

On examination, the Veteran had moderate external hemorrhoids and internal hemorrhoids with mild pain on palpation and mild fecal leakage that was characterized as slight and constant.  The hemorrhoids were not thrombosed and the Veteran did not use any pads or diapers.  

Available VA treatment records were reviewed, which showed that the Veteran underwent a colonoscopy in March 2011 which showed mild, non-bleeding internal hemorrhoids.  

The Board is unable to identify any probative evidence that at any time on appeal, the Veteran's hemorrhoids resulted in occasional involuntary bowel movements, necessitating wearing of pad, extensive leakage and fairly frequent involuntary bowel movements, or complete loss of sphincter control.  Therefore, a disability evaluation in excess of 10 percent cannot be awarded under Diagnostic Code 7332.  Furthermore, there is no evidence that the Veteran's hemorrhoids have ever resulted in persistent bleeding with secondary anemia, or with fissures or even were large or thrombotic, and irreducible with excessive redundant tissue.  Accordingly, a higher or even separate disability evaluation cannot be assigned under Diagnostic Code 7336.  The Veteran has failed to articulate why he believes a higher disability evaluation is warranted.  For all the above reasons, entitlement to a disability evaluation in excess of 10 percent for service-connected hemorrhoids with pruritis ani and anal leakage is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

Residuals of a Cholecystectomy

Entitlement to residuals a cholecystectomy was granted effective July 1992 and has been continuously assigned a non-compensable disability evaluation.

Pursuant to Diagnostic Code 7318, removal of the gall bladder is evaluated as follows: non-symptomatic (0 percent); with mild symptoms (10 percent); and, with severe symptoms (30 percent).  38 C.F.R. § 4.114, Diagnostic Code 7318. 

The words "mild" and "severe" are not defined in the rating schedule, and the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  See 38 C.F.R. § 4.6 (2013). 

The Veteran was afforded a VA examination in October 2012.  At that time, the Veteran did not report any residual symptoms of his cholecystectomy and all lab results were normal.  VA outpatient treatment records are negative for any complaints of or treatment for residuals of the Veteran's gall bladder removal.  

On review, the Board finds that the Veteran's disability picture is asymptomatic and does not more nearly approximate mild symptoms.  Objective evidence suggests that the Veteran's gall bladder removal has not been productive of any significant health consequences.  The Veteran has not reported and there is no evidence of bowel obstruction, digestive disorders, adhesions, abdominal pain, malnutrition, significant weight loss, or other such factors that would suggest symptomatology resulting from the cholecystectomy.  Thus, the preponderance of the evidence weighs against a finding that there are any symptoms.  Accordingly, an evaluation greater than 0 percent is not warranted.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).

Right Knee Arthroscopy Scar

In January 2007, the Veteran submitted the claim currently on appeal, seeking a higher disability evaluation for his right knee arthroscopy scar.  This claim has been continuously assigned a non-compensable disability evaluation from the time service connection was granted.  However, during the pendency of the appeal, separate disability ratings were assigned for instability of the right knee and right knee ligamentous strain, associated with the Veteran's right knee arthroscopy.  

In evaluating scars, the Board notes that changes have recently been made to 38 C.F.R. § 4.118, Diagnostic Code 7800.  These changes apply only to applications for benefits received on or after October 23, 2008, which is well after the date of the appellant's January 2007 claim.  However, under typical circumstances, a veteran who is rated under Diagnostic Codes 7800 to 7805 before October 23, 2008, may request review under the amended diagnostic codes, irrespective of whether the Veteran's disability has increased since the last review, but in no case will the revised award be effective before October 23, 2008.  Here, while there is no indication that he made such a request, the RO did consider the recent regulatory revisions in adjudicating the Veteran's claims, and thus, the Board will address both the pre-2008 rating criteria and post-2008 rating criteria, even though the Veteran cannot receive a revised award under the new criteria until October 23, 2008.

With respect to the pre-2008 criteria, the following diagnostic codes are relevant:

Under 38 C.F.R. § 4.118 , Diagnostic Code 7801, scars, other than head, face, or neck, that are deep or that cause limited motion: area or areas exceeding 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1):  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part.  Note (2): a deep scar is one associated with underlying soft tissue damage. 

Under Diagnostic Code 7802, a 10 percent rating is warranted for scars, other than the head, face, or neck, that are superficial and that do not cause limited motion that cover an area or areas of 144 square inches (929 sq. cm.) or greater. 

Under 38 C.F.R. § 4.118, Diagnostic Code 7803, a 10 percent rating is warranted for superficial and unstable scars. 

Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating for scars that are superficial and painful on examination. 

Under 38 C.F.R. § 4.118, Diagnostic Code 7805, other scars are rated on limitation of function of the affected part. 

The notes pertaining to these regulations (re-numbered) are shown below: 

(1) Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. 

(2) A deep scar is one associated with underlying soft tissue damage. 

(3) A superficial scar is one not associated with underlying soft tissue damage. 

(4) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 

Under the revised Diagnostic Code 7801, scars other than head, face, or neck, that are deep or that cause limited motion warrant the assignment of a 10 percent rating for an area or areas exceeding 6 square inches (39 sq. cm).  38 C.F.R. § 4.118, Diagnostic Code 7801(2013).  Under the revised version of Diagnostic Code 7802, burn scars or scars due to other causes not of the head, face or neck, that are superficial and nonlinear warrant a 10 percent evaluation under Diagnostic Code 7802 when they cover an area or areas of 144 square inches (929 sq. cm.) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2013). 

The revised Diagnostic Code 7804 allows for compensable evaluation for unstable or painful scars, regardless of the size.  Note (1) of Diagnostic Code 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (3) makes clear that a scar rated under Diagnostic Code 7802 may receive an evaluation under Diagnostic Code 7804 when appropriate.  For a 10 percent rating under the revised Diagnostic Code 7804, there must be a showing of one or two scars that are unstable or painful.  For a 20 percent rating, there must be three or four scars, and for a 30 percent rating, there must be five or six scars.

Diagnostic Code 7805 has not changed, providing that scars may be rated on limitation of function of the affected part.

Diagnostic Code 7818 provides that malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. 

When the requirements for a compensable rating of a diagnostic code are not shown, a 0 percent rating is assigned.  38 C.F.R. § 4.31 (2013). 

The Veteran's disability on appeal does not involve scarring or disfigurement of the head, face, or neck.  The disability at issue is therefore to be rated as scars (under Diagnostic Codes 7801, 7802, 7803, 7804), or rated on impairment of function (Diagnostic Code 7805).  Diagnostic Codes 7818, 7819.

The Veteran was afforded a VA examination in January 2008, but declined at that time to have his right knee arthroscopy scar examined.  The Veteran was afforded another VA examination in October 2012.  At that time, the examiner determined that the Veteran's scar was not painful, unstable, or deep.  Additionally, there was no inflammation, redness, heat, swelling, or keloid.  The scar did not affect the movement of the knee.  The scar was linear and 2 cm long.  

On a separate VA examination of the Veteran's right knee, also in October 2012, the examiner noted that the Veteran's right knee arthroscopy scar was not painful or unstable and did not exceed 39 sq. cm.  

As there is no evidence that the Veteran's right knee arthroscopy scar is painful, unstable, deep, exceeds 39 square centimeters/ 144 square inches, or limits the function of the right knee, a higher disability evaluation is not warranted under any diagnostic code for the entire period on appeal.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).


Other Considerations

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his various service-connected disabilities.  The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severe than the assigned disability ratings reflect.  Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (Wets 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms.  The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

Finally, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration.  To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R.  § 3.321(b)(1) (2013).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R.  § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In this case, it does not appear that the disabilities at issue result in an "exceptional or unusual" disability picture.  Essentially, the Veteran merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations for his service-connected disabilities are adequate.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  


New and Material Evidence

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §3.303(a) (2013).  Service connection generally requires credible and competent evidence showing: (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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 

In November 1998, the RO granted entitlement to service connection for an undiagnosed illness manifest by dizziness, fatigue, head pain, and sleep problems.  However, in April 2003, the RO proposed to sever service connection for this condition after a March 2003 VA examiner opined that the Veteran's condition was not due to an undiagnosed illness, but rather to an Arnold-Chiari malformation, and that this condition was a congenital anomaly unrelated to the Veteran's service.  In July 2003, the RO severed service connection for an undiagnosed illness manifested by dizziness, fatigue, head pain, and sleep problems.  The Veteran did not appeal.  In January 2007, the Veteran submitted a claim for cerebral arteriosclerosis, which he later clarified was a claim for symptoms of dizziness, sleep problems, and head pain due to his Arnold-Chiari malformation.

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  However, 38 U.S.C.A. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened.  See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998).

New and material evidence means evidence not previously submitted to agency decisionmakers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).

The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim.  Evans v. Brown, 9 Vet. App. 273 (1996).  Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material.  Id.  Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim.  Id.  

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion.  

The RO severed service connection for the symptoms of the Veteran's Arnold-Chiari malformation, referred to as an undiagnosed illness, because that disability is a congenital condition that did not have onset in service and was not caused or aggravated by the Veteran's active military service.  Thus, for evidence in this case to be considered new and material, it must show that the Veteran's Arnold-Chiari malformation is related to his active military service.  

Since service connection was severed in July 2003, the Veteran was afforded a VA examination in January 2008.  At that time, the VA examiner diagnosed the Veteran with an Arnold-Chiari malformation and opined that this condition pre-existed the Veteran's service and was not permanently worsened by the Veteran's active military service.  While this evidence is new, it is not material, as it does not establish a relationship between the Veteran's claimed disability and his military service.  The Veteran has also submitted lay statements in which he attributed his symptoms to his service in Southeast Asia during the first Gulf War, but these are similar to claims the Veteran made as part of his initial claim for service connection in 1997.  Finally, VA outpatient treatment notes since July 2003 show that the Veteran is followed by Neurology for his Arnold-Chiari malformation and include MRI findings which may be consistent with either early ischemic changes or multiple sclerosis.  While these treatment records are new, they are not material because they do not suggest a relationship between the Veteran's service and his symptoms.  

As the Veteran has not submitted any new and material evidence showing that his Arnold-Chiari malformation is related to service, his claim cannot be reopened.  


The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen.  With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  The letter must also inform the Veteran of the bases of the prior denial.  

The Board notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court clarified VA's notice obligations in increased rating claims.  The Federal Circuit reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication.  For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims).  

Here, the duty to notify and assist was satisfied by letter sent to the Veteran in January 2008 and May 2012.  These letters informed the Veteran of what evidence was required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence.  The Veteran was also informed of why his claim for an Arnold-Chiari malformation was previously denied and what evidence was required to reopen that claim.  Finally, he was informed of how VA assigns disability ratings and effective dates.   

In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in May 2012.  Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her or his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in November 2012 after the notice was provided.  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.  
See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  

VA also has a duty to assist the veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and 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, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The RO has obtained the Veteran's service treatment records, as well as VA treatment records.  The appellant was afforded VA medical examinations in January 2008 and October 2012.  These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disabilities as well as the functional impairments resulting therefrom.  These examination reports are adequate for rating purposes.  See 38 C.F.R. § 4.2.  

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  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).









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ORDER

Entitlement to a disability evaluation in excess of 30 percent for service-connected bilateral pes planus is denied.

Entitlement to a disability evaluation in excess of 20 percent for service-connected residuals of a left shoulder strain is denied.

Entitlement to a disability evaluation in excess of 10 percent for service-connected hemorrhoids with pruritus ani and rectal leakage is denied.

Entitlement to a compensable disability evaluation for service-connected post-operative residuals of a cholecystectomy is denied.

Entitlement to a compensable disability evaluation for a service-connected right knee arthroscopy scar is denied.

As new and material evidence has not been provided, a claim for entitlement to an Arnold-Chiari malformation with dizziness, sleep problems, and head pain is denied.  


____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs