Citation Nr: 1336865	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  02-11 192	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to service connection for hemorrhoids.

2.  Entitlement to an increased evaluation for a right radius fracture with possible arthritis, currently evaluated as 10 percent disabling.  

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for a neck disability.

5.  Entitlement to service connection for a shoulder disability.

6.  Whether new and material evidence has been received to reopen the claim of service connection for a back disability.

7.  Whether new and material evidence has been received to reopen the claim of service connection for a headache disability.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney-at-Law


ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

The Veteran served on active duty from July 1966 until July 1970 and from May 1971 until June 1973.

These matters come before the Board of Veterans' Appeals (Board) from September 2000, November 2000 and September 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The Board initially remanded the claim for an increased evaluation for the right radius and denied the claim for service connection for hemorrhoids in August 2003.  The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court).  In September 2004, the Court granted a Joint Motion for Remand and vacated the part of the Board's August 2003 decision that denied hemorrhoids and remanded the matter for further consideration.  In an April 2005 decision, the Board again denied the claim for service connection for hemorrhoids.  The Veteran again appealed the decision to the Court. In a May 2007 memorandum decision, the Court again vacated and remanded the matter to the Board. 

In November 2007, the Board remanded the claim pursuant to the Court's memorandum decision.  After the claim was returned to the Board, the Board denied the claim in a July 2008 decision.  The Veteran appealed the Board's denial to the Court.  In June 2009, the Court granted a Joint Motion for Remand and vacated the Board's July 2008 decision and remanded the matter to the Board for further proceedings consistent with the Joint Motion.  In November 2009, the Board remanded the claim for a new VA examination as to the etiology of his hemorrhoids.  

In a May 2010 decision, the Board again denied the Veteran's claim for service connection for hemorrhoids.  The Veteran appealed and in January 2011 the Court granted a Joint Motion and vacated and remanded the matter to the Board.  In light of the Joint Motion, the Board remanded the claim in May 2011 for an adequate VA opinion.  The requested opinion has been obtained and the case has been returned to the Board for appellate consideration.

The claim for an increased evaluation had remained on remand status until the development was completed in May 2012.  The RO subsequently transferred the case to the Board for appellate consideration.

The RO denied a claim for an increased evaluation for hearing loss in a May 2010 rating decision.  The Veteran filed a timely notice of disagreement in May 2011; however, after the RO sent the Veteran a Statement of the Case in July 2012, the Veteran did not perfect his appeal by submitting a timely substantive appeal.  As such, this issue is not presently before the Board.  

Records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered.

A review of the record reflects that, after the issuance of the November 2011 and July 2012 supplemental statements of the case, additional VA treatment records were associated with the claims file.  To the extent any records were not reviewed by the RO, the Board notes the Veteran provided a waiver of the RO's initial consideration of any new evidence in an August 2013 statement.  38 C.F.R. § 20.1304.

The issues of entitlement to service connection for tinnitus, a neck disability, and a shoulder disability and whether new and material evidence has been received to reopen claims of service connection for a back disability and headaches are being REMANDED and 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.  Hemorrhoids were not manifested during service and are not related to service. 

2.  The right radius fracture is not manifested by the functional equivalent of limitation of flexion to 90 degrees, limitation of extension to 75 degree, flexion limited to 100 and extension limited to 45 degrees, marked cubitus varus or cubitus valgus deformity or ununited fracture of head of radius, nonunion of the radius and ulna, nonunion of the upper half of the radius, or impairment of supination or pronation.


CONCLUSIONS OF LAW

1.  Hemorrhoids were not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).

2.  The criteria for an evaluation in excess of 10 percent for the right radius fracture with possible arthritis have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.59, 4.71, 4.71a, Diagnostic Code 5299-5010, 5205-5213 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

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); 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 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 U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. 

In the present case, letters were sent to the Veteran in April 2000, June 2001, December 2001, July 2004, September 2004, March 2006, December 2007, July 2009, February 2011 and May 2012 that fully addressed all notice elements. 

VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, the record includes the Veteran's service treatment records, VA outpatient treatment records, private medical records, lay statements and the report of VA examinations. 

The record reflects the Veteran is in receipt of Social Security benefits.  While VA's duty to assist extends to obtaining relevant records from the Social Security Administration, in the present case, a January 1998 VA examination report indicated the Veteran reported receiving Social Security for major depression.  There is no indication in the file that suggests his Social Security benefits are related to his hemorrhoids or right radius fracture.  As such, the Board finds these records are not relevant to the present claims and there is no duty to obtain them prior to adjudication.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is required to obtain SSA records when they may be relevant to the claim).

The Veteran's representative argued in July 2013 that the November 2011 opinion was inadequate and requested yet another VA examination for the hemorrhoids.  Specifically, the representative argued the examiner discounted the 1972 service treatment record that noted complaints of hemorrhoids and failed to consider lay testimony of rectal bleeding.  However, as will be discussed in detail below, the examiner explicitly discussed the 1972 record and provided a well-thought out rationale in discounting it.  Furthermore, the examiner considered and discussed the rectal bleeding and noted the many potential causes of this symptom.  

The representative further argued that the opinion was not adequate as it did not discuss the private physician's February 2011 letter diagnosing a hemorrhoid and linking it to service or consider the Veteran's testimony.  In this regard, although the November 2011 VA examiner did not specifically mention the February 2011 letter, the examiner clearly noted that he reviewed the claims file material, including the private medical records and VA records.  The February 2011 letter from a VA physician was received at the RO in February 2011 and was part of the claims file at the time of the VA examination.  See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Additionally, there is no duty for the examiner to comment on every favorable piece of evidence in the claims file.  See e.g. Wolfe v. Shinseki, 2012 WL 3574410, *3 (Vet. App. 2012)(noting that the requirement is for the Board to discuss any additional favorable evidence when it relies on an opinion that does not do so); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (noting that a memorandum decision may be cited or relied upon for any persuasiveness or reasoning it contains).   In sum, the Board notes that the examiner considered the Veteran's subjective history and complaints and provided an extremely thorough opinion that providing all necessary findings to evaluate the claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  As such, the November 2011 VA opinion is adequate.

The Veteran's representative also argues that the July 2012 VA examination of the right radial fracture was not adequate as it did not provide a rationale for the findings and the examiner did not discuss why the Veteran would not be entitled to a higher rating or provide "reasons or bases or draw any conclusions from the quantitative data that he collected."  The requirement for adequate reasons and bases applies to the rating specialist, however, not the examiner.  See e.g. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds Moore v. Shinseki, 555F.3d 1369 (Fed. Cir. 2009) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability.").  The examiner reviewed the records, considered the Veteran's subjective history and provided all necessary findings for the Board to apply the rating criteria.  As the representative has not pointed to any fundamental flaws with the quantitative data collected or provided any clear evidence calling into question the qualifications of the examiner, the Board finds that the examiner is competent and the examination findings provided are adequate.  See Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding VA medical examiners are presumed competent in the absence of clear evidence to the contrary).

Significantly, neither the Veteran 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 his claims.  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). 



Law and Analysis

In the present case, the Veteran seeks service connection for hemorrhoids.  He has specifically argued that he has demonstrated the presence of hemorrhoids during service and further argued that he had continuous symptoms since service.  In support of his claim, he has provided a multitude of lay statements in which he relates that his hemorrhoids first occurred in service with symptoms such as itching, burning, and bleeding and explained that he self treated the symptoms when they flared because he was embarrassed to seek help.  He indicated that the symptoms continued and even worsened over the years until he ultimately underwent a hemorrhoidectomy in 2001, a procedure that was not successful in treating the condition.  In short, the Veteran's entire argument rests upon a claim for service connection based upon continuity of symptomatology.  Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied.

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In certain cases, competent lay evidence may demonstrate the presence of any of these elements.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d). 

As an initial matter, the Board notes that the Veteran is not claiming and the record does not reflect that his hemorrhoids are related to combat exposure.  In fact, the Veteran's DD-214 shows that he served as a jet engine mechanic and nondestructive inspection specialist and reflects no periods of foreign or sea service.  Therefore, the provisions of 38 C.F.R. § 1154(b) are not applicable, and concerns as to whether the Veteran engaged in combat with the enemy are likewise not for consideration.

As noted above, the Veteran specifically seeks service connection on a theory of continuity of symptomatology.  Under 38 C.F.R. § 3.303(b) there are two alternate means of establishing service connection for certain enumerated chronic conditions.  First, if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, service connection will be warranted unless the condition is clearly attributable to intercurrent causes.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013).  If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection.  38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. 

Until recently, the Board and the Court considered whether service connection could be granted based upon a showing of continuity of symptomatology for any disability.  Indeed, the present case was previously remanded by the Court for the Board to consider this theory of entitlement.  See May 2007 Memorandum Decision.  During the pendency of the appeal, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has now clarified that the theory of continuity of symptomatology applies only to those diseases recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a).").  The Federal Circuit in Walker rejected the argument that § 3.303(b) should be interpreted to apply to any disease that ordinarily would be considered chronic in the medical arts or to any non-chronic disease or injury.  Walker, 708 F.3d at 1336 and 1339.  In fact, the Federal Circuit explicitly stated that "suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect."  Id. at 1340.  The Federal Circuit explained that diseases that would be considered chronic in a medical sense but are not listed in 3.309(a) may qualify for service connection under the 3-element test under 3.303(a).  Id. at 1338.  The primary difference is that under 3.303(a) the disease must satisfy the nexus requirement.  Id.  

As noted above, the Veteran's primary argument is based upon continuity of symptomatology of his hemorrhoids.  Hemorrhoids, however, are not listed as a chronic disease in 38 C.F.R. § 3.309(a).  As hemorrhoids are not a listed chronic disease under 38 C.F.R. § 3.309(a), the Veteran's claim cannot be processed under a theory of continuity of symptomatology under 38 C.F.R. § 3.303(b).  Walker, 708 F.3d at 1340.  As such, the only means of establishing entitlement is satisfying the 3-element test enumerated above.  Id. at 1338.

In this regard, the Veteran provided a February 2011 statement of his treating VA physician documenting treatment for bleeding hemorrhoids that continued even after hemorrhoidectomy.  As such, he has a current disability of hemorrhoids.  The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease, and whether there is evidence of a nexus or relationship between the current disability and the inservice disease or injury. 

Service treatment records reflect that the Veteran was seen in January 1967 for complaints of intermittent rectal bleeding for one and a half weeks.  Rectal examination was negative and the plan was to arrange for surgical consultation and proctoscopy.  The impression was rectal bleeding.  A January 1967 referral to a surgeon indicated that digital examination of the rectum was negative and noted no evidence of hemorrhoids.  The surgical consultant indicated in January 1967 that the Veteran had had a good preparation and that the scope was passed to 25 centimeters with ease.  There were no evident mucosal or extrinsic lesions.  The Veteran was to have a barium enema and then return.  A February 1967 barium enema allowed visualization of the entire colon.  Abnormalities were not revealed and the impression was a negative barium enema.

On clinical examination in March 1970, the Veteran's skin, anus, and rectum were normal.  The Veteran denied having or having skin problems or piles or rectal disease on an April 1971 report of medical history.  Clinically, his skin, anus, and rectum were normal upon examination in April 1971.  In January 1972, the Veteran complained of pain with a hemorrhoid.  No objective findings were reported and no diagnosis was provided; however, he was provided with a sitz bath and suppository.  On service discharge examination in June 1973, the Veteran's rectum and prostate were normal to digital examination.  His hematocrit was 44 percent.  The Veteran also denied having or having had piles or rectal disease on the June 1973 report of medical history.

The Veteran has consistently argued that the notation of rectal bleeding and the January 1972 complaint of a hemorrhoid in his service treatment records affirmatively established an inservice incurrence of hemorrhoids.  Over the course of the appeal, the Board has obtained VA medical opinions to illuminate the meaning of the service treatment records.   

The Veteran was afforded a VA examination in January 2010.  The examiner noted the Veteran reported the onset of hemorrhoids was in the 1960s but did not know who diagnosed it or the when they were diagnosed.  Rather he reported it was in the military.  He described the condition as progressively worse and indicated he treated it with medication.  The examiner indicated the Veteran appeared to be intentionally vague with his answers.  The examiner noted no history of trauma to the rectum or anus, neoplasm, obstetrical injury rectal prolapsed recurrent anal infection or proctitis.  He did report occasional rectal bleeding.  The Veteran reported burning diarrhea and pain but denied anal itching difficulty passing stool tenesmus or swelling.  There was a history of hemorrhoids but was no bleeding from hemorrhoids.  There was no recurrence without thrombosis.  There was no history of fecal incontinence or perianal discharge.  Clinical examination reflected no current hemorrhoids and no anorectal fistula or anal or rectal stricture.  

After reviewing the record and examining the Veteran, the January 2010 VA examiner indicated the service records were reviewed and there were no objective findings of hemorrhoids in service.  The examiner explained that the Veteran complained of rectal bleeding for a week and a half in January 1967 but digital rectal exam showed no hemorrhoids and he was referred for proctoscopy and the proctoscopy was negative for abnormalities and the Veteran was scheduled for a barium enema that was normal in February 1967.  The Veteran had a normal medical examination in March 1970 without mention of hemorrhoids and in April 1971 he denied piles or rectal disease and examination was normal.  Discharge examination was also normal rectal examination.  The examiner concluded there was absolutely no objective evidence that the Veteran ever had any problem in the military that was related to his future development of hemorrhoids.  

Because the January 2010 VA examination did not specifically address the January 1972 service treatment record, another VA opinion was obtained in November 2011 to assess the nature and etiology of the current hemorrhoids.  See January 2011 Joint Motion; May 2011 Board remand.  The November 2011 examiner reviewed the claims file and specifically noted review of private medical records, service treatment records that indicated blood in stool and hemorrhoids and VA treatment records along with the Veteran's 2010 letter.  After reviewing the record, the examiner concluded that one note of self-reported pain with hemorrhoid in 1972 did not qualify as objective evidence that the Veteran ever had a problem in the military that was related to future development of hemorrhoids.  The examiner explained that it would be helpful if more detailed histories and perhaps stool testing for blood were obtained in the medical visits during service.  The examiner explained that certain foods such as beets, Kool-Aid, gelatins, and red licorice can make stool appeal bloody.  The examiner indicated that the etiology of this reported bleeding was not definitively defined.  He noted that besides hemorrhoids, rectal bleeding can be caused by anal fissure from large stool, possibly healed by the time of examinations or a congenital arteriovenous malformation in the lower GI tract which would be notoriously difficult to find if it was not actively bleeding and could possible never rebleed.  

The examiner further explained that a variety of conditions can cause pain that layman present as hemorrhoids and experience taught him to examine the area to assure the diagnosis.  Other causes of pain can include abscess, infection, and cancer (which the Veteran did not have) and muscle issues, proctalgia fugax, levator ani syndrome, fissures from large stool, constipation, anal sex, pruritis ani, perianal hematoma without hemorrhoids, coccydodynia, fungal infection, anal sexual transmitted diseases, anal ulcers, and skin problems like dermatitis.  As such, the examiner felt a layperson was not competent to make the diagnosis of hemorrhoid pain without some medical background or being assigned the diagnosis after appropriate evaluation at least once and this was not apparent from the records.  

The examiner indicated that the condition the Veteran suffered from in 1972 is not precisely known but all of the examples above can be misinterpreted as hemorrhoids by laypersons and would be capable of subsiding in 1973 and retuning at some point later.  Hemorrhoids, however, would be expected to be more persistent albeit episodic.  The lay statements in regard to observable symptoms of rectal bleeding appear to be of one complaint in 1967 without findings on exam, silence on multiple medical visits throughout service and separation history questionnaire and silence until 2001 when the surgeon noted problems with hemorrhoids for some time and the physician's assistant noted painful bleeding and hemorrhoids for years.  Those were both nonspecific time periods but did not suggest multiple decades.  The Veteran did not appear to complain of painful bleeding hemorrhoids in the service treatment records.  The examiner also commented on the notation in the 2008 VA examination that the Veteran reported memory problems since his coronary bypass in 2000 and could not remember when symptoms started or have a clear memory of past history of hemorrhoids.  Rather, the Veteran asserted it was in the 1960s but did not know who or when they were first diagnosed.  He only indicated it was in the military.  The file also contained a letter from the Veteran conforming memory loss but then describing symptoms he had in service, such as itching, burning and bleeding with blood on the tissue he would wipe several times a month along with a detailed description of the recalled hemorrhoid problems in service he was not able to provide to prior VA examiners.  The examiner noted that all lay statements concerning the longevity and duration of hemorrhoid condition were based upon self-described flawed memory after the 2000 illness.   

The Board carefully considered whether the Veteran was competent to diagnose hemorrhoids.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence is competent and sufficient in certain instances to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  In the present case, however, the diagnosis of hemorrhoids is not something that would be readily apparent to an average layperson, nor does this case fall into any of the exceptions carved out by Jandreau.  

First, as explained by the November 2011 VA examiner, rectal bleeding and pain may be caused by at least 15 different gastrointestinal disorders and even possibly from skin disorders.  The examiner indicated that clinical examination of stool samples could help determine the proper diagnosis.  Additionally, testing such as flexible sigmoidsocopy, rigid anoscopy, rectal examination, and colonoscopy may be essential in evaluating and diagnosing rectal bleeding.  See Merck Manual 91 and 165 (18th ed. 2006) (noting that flexible sigmoidoscopy and rigid anoscopy may be all that is required for symptoms of hemorrhoidal bleeding but other patients with hematochezia should have colonoscopy).  In discussing hermorrhoids, the Merck Manual explains that while most hemorrhoids are seen on inspection of the anus and rectum, anoscopy is essential in evaluating painless or bleeding hemorrhoids.  Id. at 165.  It further notes that rectal bleeding should be attributed to hemorrhoids only after more serious conditions are excluded.  Id.; 38 C.F.R. § 19.9(a remand or referral to the AOJ is not necessary when supplementing the record with a recognized medical treatise).  In light of the above explanations of the VA examiner and explanation as to proper diagnosis of the symptom in a recognized medical treatise, the Board concludes that diagnosing hemorrhoids is a complex matter that requires medical knowledge training and experience.  

Additionally, the record does not reflect that the Veteran was reporting a contemporaneous medical diagnosis in 1972.  Although he has indicated that he was diagnosed with hemorrhoids in the 1960s, during the January 2010 VA examination the Veteran indicated he was unsure of the date of diagnosis or who diagnosed the condition.  As noted above, prior to 1972, the service treatment records only reflected an assessment of "rectal bleeding."  In fact, prior to 1972, testing demonstrated the lack of hemorrhoids.  The January 1967 digital examination reflected no evidence of hemorrhoids.  Similarly, the January 1967 proctoscopy showed no evidence of lesions and there were no abnormalities that were noted after the barium enema.  Accordingly, the Veteran's self-report of hemorrhoids in 1972 is not credible in light of the conflicting contemporaneous medical records and it does not fit the exception in Jandreau for reporting a contemporaneous diagnosis of a medical professional.

Additionally, the Board considered whether the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  In this regard, the Veteran is competent to describe symptoms of itching, burning, rectal bleeding and pain.  The November 2011 VA examiner clearly indicated that these symptoms noted in service could support a mass of disabilities, all of which could resolve and never recur.  As will be explained in detail below, while there are clearly symptoms in 1972 and a diagnosis beginning around 2011 the record does not reflect that the symptoms in 1972 support the ultimate diagnosis of hemorrhoids in 2001.   Accordingly, because the Board finds that the diagnosis of hemorrhoids is a complex matter, and the Veteran has not demonstrated that he has knowledge, skill, education, training or experience to understand and differentiate the many possible diagnoses that could be caused by pain and rectal bleeding or interpret the necessary testing to pinpoint the correct diagnosis, nor has he demonstrated he fits the exceptions outlined by Jandreau, the Board concludes that the Veteran is not competent to state that he had a diagnosis of hemorrhoids.  

Accordingly, the Board finds the November 2011 VA examination that concluded the Veteran did not have objective evidence of a problem in the military to be more probative than the January 1972 self-report of hemorrhoids.  The examiner reviewed the entire record and provided an extremely thorough rationale for the opinion he provided.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  The examiner considered all of the symptoms and the inservice records and explained the many types of disabilities that can manifest with those symptoms.  The examiner further explained that similar symptoms are frequently misinterpreted by laypersons.  Although the January 1972 record was created at the time of service, the mention of hemorrhoids appeared only in the subjective history portion of the report.  Significantly, the physician in 1972 did not provide a diagnosis.  In short, the January 1972 record represents a mere transcription of the Veteran's lay report as to a diagnosis which the Board has found to be not competent or credible.  The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.  See Leshore v. Brown, 8 Vet. App. 406, 409 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the Veteran and noting that the Board must evaluate the credibility and weight of the history upon which the opinion is predicated).  

Although the Veteran did not have a diagnosis of hemorrhoids during service, he clearly had rectal bleeding during service.  As such, the final element is competent evidence of a nexus between the current hemorrhoids and the rectal bleeding during service.  By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2). 

In this regard, the Veteran was afforded several VA examinations to assess the nature and etiology of the current hemorrhoids.  The Veteran's claims file was reviewed by a VA examiner in January 2008.  The examiner indicated the service treatment records were negative for any complaints of a treatment of hemorrhoids and the first mention of hemorrhoids was not until January 2001.  The examiner noted that upon talking to the Veteran, he reported memory problems since he had an operation for coronary bypass in 2000 and he could not remember when the symptoms started and did not have a clear memory of the past history of his hemorrhoids.  He described some blood when he wipes after a bowel movement on average about every two weeks and treated with preparation H suppository about every two months.  He denied pain with bowel movement.  On examination there was one lateral internal hemorrhoid that was enlarged but there was no evidence of bleeding on examination.  The impression was there was no evidence that the hemorrhoids were related to any injury or disease or manifestation in service.  

The Veteran was afforded a VA examination in January 2010 to assess the etiology of the hemorrhoids.  After reviewing the record and examining the Veteran, the examiner concluded the hemorrhoids were not caused by or a result of military service.  As noted above, the examiner pointed to the 1967 service treatment records along with the service examinations in March 1970, April 1971 and discharge examination that reflected a normal rectal examination.  The examiner concluded there was absolutely no objective evidence that the Veteran ever had any problem in the military that was related to his future development of hemorrhoids.  

Additionally, the November 2011 examiner concluded that it was less likely as not that the hemorrhoids were related to his service.  He explained that the service treatment records noted rectal bleeding but testing revealed no evidence of hemorrhoids.  The records were silent on hemorrhoids or rectal bleeding until 2001 and the examiner discussed some prior records that noted prescriptions of suppositories in 1997 prior to regular suppository prescriptions that began around early 2000.  

As discussed above, the examiner further discounted the 1972 report of hemorrhoids explaining that there were many disabilities that would present with similar symptoms and could subside and later recur.  He explained that hemorrhoids would be expected to be more persistent albeit episodic.  The examiner also commented upon the records in 2001 when the surgeon noted problems with hemorrhoids for some time and the physician's assistant noted painful bleeding and hemorrhoids for years.  The examiner indicated that those were both nonspecific time periods but did not suggest multiple decades.  The examiner further commented on the notation in the 2008 VA examination that the Veteran reported memory problems since his coronary bypass in 2000 and could not remember when symptoms started or have a clear memory of past history of hemorrhoids.  However, a later letter from the Veteran confirmed memory loss but then described symptoms he had in service, such as itching, burning, and bleeding, along with a detailed description of the recalled hemorrhoid problems in service that he was not able to provide to prior VA examiners.  The examiner noted that all lay statements concerning the longevity and duration of hemorrhoid condition were based upon self-described flawed memory after the 2000 illness.   

To the extent to which the Veteran argues the above examination is predicated on an inaccurate factual history as he alleged continuous symptoms of hemorrhoids (e.g. that the hemorrhoids were persistent), the Board notes that the Veteran's assertions as to continuous symptoms of hemorrhoids are simply not credible.  As noted above, service treatment records contain many examinations which fail to reflect the presence of hemorrhoids.  See January 1972 digital examination, January 1967 proctoscopy, and February 1967 barium enema, examinations in March 1970, April 1971 and June 1973.  Furthermore, the Veteran himself denied a past history of piles or rectal disease in the April 1971 and June 1973 reports of medical history.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character).  The record accordingly demonstrates not only that the Veteran had a gap in treatment for his hemorrhoid symptoms but additionally reflects there is more than silence as the Veteran denied the presence of hemorrhoids during service and testing failed to document the presence of hemorrhoids.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  As the Board has found the Veteran's assertions as to persistent symptoms to be not credible, it is entirely appropriate for the November 2011 VA examiner to render the above opinion.  Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of service medical records to provide a negative opinion when the Board specifically assumed that the Veteran sustained an injury during service); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006)("[R]eliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran").  

The favorable evidence of record includes a February 2011 statement of his treating VA physician.  The physician noted that the Veteran related having hemorrhoids while in the military and has had problems with bleeding hemorrhoids and prolapse that were resistant to medical management.  He underwent hemorrhoidectoy in 2001 and continues to have problems with hemorrhoids.  Significantly, this statement does not indicate that the current hemorrhoids are related to the rectal bleeding in service.  Furthermore, to the extent to which the physician suggests a relationship between the current hemorrhoids and service, the physician provides no rationale for this opinion.  See Black v. Brown, 5 Vet. App. 177, 180 (1993); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record, and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions).  Additionally, this record was based upon a self-reported history of the Veteran that the Board has found to be not competent or credible.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value).

Similarly, an August 2001 VA record noted history of painful bleeding hemorrhoids "for years" that did not respond to conservative management.  Another August 2001 general surgery record related to the hemorrhoidectomy reflect a history of hemorrhoids "for some time."  While these records suggest a long history of hemorrhoids, neither statement affirmatively links the condition to the rectal bleeding in service.  

To the extent to which the Veteran seeks to provide the nexus, as explained in detail above, he is not competent to do so without demonstrating that he has the knowledge, skill, or training to differentiate between the many causes of rectal bleeding and interpret appropriate testing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease).  In expressing an opinion as to cause of his current hemorrhoids, the Veteran is not reporting readily apparent symptoms, nor is he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional.  See Jandreau v. Nicholson, 492 F.3d at 1377.  The Veteran has not demonstrated he has knowledge of the acceptable medical practices in diagnosing hemorrhoids.  

Accordingly, the totality of the record fails to reflect a nexus between the rectal bleeding during service and the current hemorrhoids.  The favorable evidence of record merely notes a long duration of the hemorrhoids, it does not affirmatively link the hemorrhoids to the rectal bleeding noted in service.  The VA obtained several opinions to determine the etiology of the condition and all of the examiners concluded that it was less likely that the current hemorrhoids were related to the rectal bleeding during service.  The November 2011 VA examiner in particular reviewed the record, including the favorable opinions of record, and provided a detailed rationale for the conclusion.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (the probative value of a medical opinion comes from when there is a factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The Board has further considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, service connection for hemorrhoids is denied.


Increased Evaluation Right Radius Fracture

The Veteran seeks an increased evaluation for residuals of a right radius fracture.  By way of history, the RO granted service connection for the right radial fracture in a May 1975 rating decision.  At that time a noncompensable evaluation was assigned under Diagnostic Code 5299.  In March 2000, the Veteran sought an increased evaluation for the right radius fracture and also sought service connection for arthritis of the right arm.  During the pendency of the appeal, the RO granted an increased 10 percent evaluation under 5299-5010 in a November 2000 rating decision.  The increased evaluation was effective March 9, 2000.  A subsequent April 2002 rating decision granted the claim for service connection for right arm arthritis and combined this disability with the right arm arthritis and continued the 10 percent evaluation.  The Veteran argues the current evaluation does not accurately reflect the severity of his disability.  Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ratings. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 

The Veteran's right radius fracture was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5010.  Diagnostic Code 5299 indicates the disability is not listed in the Schedule for Rating Disabilities and it has been rated by analogy under a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27.  In the present case, the RO rated the claim under Diagnostic Code 5010 which evaluates degenerative arthritis.  Diagnostic Code 5010 mandates the claim be evaluated as degenerative arthritis. Diagnostic Code 5003, in turn, evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes, in this case Diagnostic Code 5201.  If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion.  Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion.  Id.  In the absence of limitation of motion, a 10 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations.  Id. 

The affected body part would be limitation of motion of the forearm under Diagnostic Code 5206.  The normal range of motion for the forearm is from 0 degrees extension to 145 degrees flexion. 38 C.F.R. § 4.71, Plate I.  Flexion of the forearm limited to 110 degrees of the major or minor arm warrants a noncompensable evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5206.  Flexion limited to 100 degrees of the major or minor arm warrants a 10 percent evaluation. Id.  Flexion limited to 90 degrees of the major or minor arm warrants a 20 percent evaluation. Id. 

A 10 percent evaluation is in order where there is evidence of a limitation of forearm extension to 45 or 60 degrees of the major or minor arm.  A 20 percent evaluation is in order where there is evidence of a limitation of forearm extension to 75 degrees of the major or minor arm. 38 C.F.R. § 4.71a, Diagnostic Code 5207.

Finally, a 20 percent evaluation is in order where there is evidence of a limitation of forearm flexion to 100 degrees and a limitation of forearm extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5208.

Major and minor refer to a Veteran's handedness, with a higher rating sometimes available for a disability affecting a Veteran's dominant hand.  38 C.F.R. § 4.69 (2012).  The historical evidence of record, including a January 2012 VA examination report, indicates that the Veteran is right-handed.  As such, the minor ratings are for application with regard to his left elbow disability. 

The Board must also consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability rating for a disability using the limitation of motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45, 4.59; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995).

In the present case, the Veteran has clearly been treated consistently for his right radius.  The record reflects the Veteran was seen by physicians, and treated with pain medication, injections to the joint, a transcutaneous electrical nerve stimulation (TENS) unit and a brace.  The Veteran's claim for an increased evaluation for the right radius was dated in March 2000 and was received by the RO on March 9, 2000.  Accordingly, the Board has considered findings from March 1999; however, in the present case, the first records documenting relevant findings during this period are from August 2000.  38 C.F.R. §3.400 (noting that the effective date for an increased evaluation can be as early as 1 year prior to the date of the receipt of the claim). 

As an initial matter, in the Form 646, the Veteran's representative argues that the Veteran is right is dominant.  However, the remainder of the record reflects the Veteran is left handed.  For example, private treatment records in April 1989 reported the Veteran was left handed.  Similarly, during the VA examination the Veteran indicated he was left handed.  Most significantly, service treatment records include a June 1966 report of medical history on which the Veteran reported he was left handed.  Accordingly, the Veteran's right arm is his minor extremity. 

The Veteran was afforded a VA examination in August 2000 to assess the severity of the wrist.  The Veteran reported the forearm and elbow hurt at times and explained that pain was aggravated by damp weather.  Range of motion of the elbows reflected extension to 0 degrees and flexion to 137 degrees.  There was no pain on range of motion.  Pronation and supination at both elbows noted to be normal and equal.  Strength of extensors and flexors were normal and equal.  No significant right elbow tenderness was noted.  An addendum reflected complaints of right wrist discomfort and examination revealed normal flexion and extension of both wrists and normal eversion and inversion of both wrists.  There was no significant deformity of either wrist and no tenderness.  X-ray revealed a slightly depressed radial head fracture and the lateral competent of fracture was also slightly depressed.

Private treatment records in 2002 showed complains of right elbow pain typically with twisting, gripping, or twisting.  He denied improvement with medication.  There was tenderness to palpation.  Epicondyle resisted supination and there was also quite painful grip strength of 3/5. Sensory examination was intact.  The assessment was lateral epicondylitis of the right.  

The Veteran was afforded another VA examination in February 2003.  The examiner reviewed the records including the prior examination.  The Veteran indicated he used a TENS unit for a few months but stopped and took medication.  He last worked 12 years before.  He indicated the elbow hurt when he picked up and held things.  He did minimal activities and most days did not get out of house.  Clinical examination reflected flexion to 130 of the right and extension to 0.  Internal rotation to 90 and external rotation to 80.  There was tenderness over the radial head of the right elbow and base of right thumb.  The impression was fractured right radial head with near normal range of motion.  The examiner explained that the Veteran's activity was so limited by his depression that his elbow was not tested much; however, it functioned without disability within current range of activity.  

The Veteran was afforded a VA examination in July 2012.  The examiner diagnosed right radial fracture at the elbow.  The Veteran reported increased pain with use of the right elbow and indicated he treated with medication.  The Veteran reported flare-ups with activity and specifically with lifting, pushing, and pulling.  Clinical examination reflected flexion of the right elbow to 145 degrees or greater.  There was no objective evidence of painful motion.  Extension was to 0 degrees or any degree of hyperextension, in other words no limitation of extension.  Objective evidence of painful motion began at 0 degrees or any degree of hyperextension.  After repetitive testing, the Veteran continued to have 145 degrees or greater of flexion and 0 degrees or hyperextension of the right elbow.  

The examiner indicated the Veteran did not have any functional loss or functional impairment of the elbow and forearm and did not note factors such as less movement, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy.  The examiner noted tenderness or pain on palpation to the right elbow or forearm.  Muscle strength was 5/5 for flexion and extremity.  There was no ankylosis.  There was no flail joint fracture or impairment of supination or pronation.  The Veteran had not had total joint replacement.  He had a prior arthroscopic surgery of the right elbow but did not have any residuals from that surgery.  There were no scars related to the elbow and no other pertinent physical findings.  The examiner indicated that functional impairment was not so extreme that no effective function remains other than that which would be equally well served by amputation.  Imaging studies were reviewed but did not show degenerative or traumatic arthritis.  The elbow did not impact the Veteran's ability to work.  

VA outpatient treatment records reflect treatment for pain and tenderness of the right elbow, particularly with twisting and gripping.  These records consistently reflect that in spite of the complaints of pain, the Veteran retained a full, unrestricted range of motion of the right upper extremity.  See April 2002, May 2002, February 2011, July 2012 VA treatment records.  Of particularly note, the May 2002 record noted some functional give way weakness of the elbow, wrist and hand motors; however, range of motion was described as full without radial humeral crebitance and the physician noted that the pain intensity was out of proportion with clinical finding.  VA records also include several radiological studies.  An April 2000 x-ray of elbow noted slightly depressed radial head fracture age indeterminate.  No significant joint effusion was seen.  An August 2000 x-ray of the elbow showed slightly depressed radial head fracture unchanged in position and slightly more evident than previous study.  An April 2002 x-ray of the right elbow hoed old fracture of the radial head.  No joint effusion was seen.  A November 2002 x-ray of the right forearm noted slight persistent irregularity of the radial head that could be related to the prior fracture.  Multiple surgical clips were seen about soft tissues in forearm.  No new injury seen.

Evaluating the evidence in light of the above rating criteria reflects increased evaluations are not warranted.  None of the records demonstrate flexion of the right arm limited to 90 degrees.  VA outpatient treatment records have consistently described full unrestricted range of motion.  Additionally, the VA examinations reflected flexion ranging from 130 to 145 degrees.  As such, an increased evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5206 is not warranted.  Similarly, an increased evaluation under 5207 is not warranted as the Veteran has not demonstrated extension to 75 degrees.  Rather, the February 2003, August 2000and July 2012 VA examinations all reflected extension to 0 degrees.  Additionally, a higher 20 percent evaluation is not warranted under Diagnostic Code 5208 as the Veteran clearly has not demonstrated both flexion limited to 100 degrees and extension limited to 45 degrees.

The Board also considered whether the functional loss due to pain could result in a higher schedular evaluation.  While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body.  See Mitchell v. Shinseki, 25 Vet. App at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" may constitute functional loss).  In this case, as noted above, the Veteran has significant right upper extremity pain which he treated with medication, injections, TENS unit and a brace. 

While the Veteran has significant pain, there is nothing in the record that suggests the pain was tantamount to a finding of motion limited to 0 degrees or flexion limited to 90 degrees.  Rather, as noted above, while the majority of the treatment records document complaints of pain and tenderness, objective findings illustrated full unrestricted range of motion.  VA examinations documented restricted motion as outlined above.  Significantly, even considering the Veteran's pain and tenderness, the July 2012 VA examinations performed repetitive testing and noted there was no functional loss due to factor such as less movement, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling deformity or atrophy.  In other words, while the Veteran clearly has pain and tenderness, these symptoms do not result in additional functional impairment and accordingly, an increased disability rating based solely on pain is not warranted. 38 C.F.R. § 4.45, 4.71a, Diagnostic Codes 5242; DeLuca, 8 Vet. App. at 202.

As the Veteran's range of motion does not meet compensable levels under Diagnostic Codes 5206 (flexion limited to 100 degrees) and 5207 (extension limited to 45 degrees), the Board considered whether a higher rating could be assigned under Diagnostic Code 5003.  In this regard, however, the x-ray evidence only demonstrates x-ray evidence of 1 major joint and does not reflect any incapacitating episodes.  38 C.F.R. § 4.45(f) (explaining the elbow is a major joint).  As such, a higher 20 percent evaluation is not warranted under Diagnostic Codes 5010 and 5003.

In reaching its decision, the Board considered whether an increased rating under another Diagnostic Code would be appropriate.  While the Veteran sustained a right radius fracture, the evidence as outlined above does not reflect that there is nonunion of the upper half of the radius to warrant a higher rating under 5212.  Similarly, there is no impairment resulting in nonunion of the radius and ulna with a flail false joint to warrant a rating under 5210.  As the Veteran clearly retains motion of the arm, there is no evidence of ankylosis and as such a rating under Diagnostic Code 5205 is not warranted.  There is also no evidence of impairment of the ulna and no evidence of impairment in supination and pronation and as such an increased evaluation for these disabilities under Diagnostic Codes 5210, 5211, 5212, or 5213 is not warranted. 

Based upon the guidance set forth in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate.  In the present case, the Veteran's symptoms have remained constant throughout the entire appeal period and as such staged ratings are not appropriate.

ExtraSchedular Evaluation

The Board also considered whether the Veteran's right radius fracture with possible arthritis warranted referral for extra-schedular consideration.  In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.  ; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. 

In this case, the evidence shows that the Veteran's right radial fracture does not present an exceptional disability picture, insofar as his symptoms are expressly contemplated by the rating schedule.  The Veteran has reported pain, limited motion, and difficulty performing physical activities such as twisting, gripping and picking things up.  Limitation of motion is expressly contemplated by the schedular criteria.  Additionally, 38 C.F.R. § 4.40, 4.55 and 4.59 require consideration of pain, limited motion and the effect of the pain on the Veteran's functioning.  In other words, the currently assigned Diagnostic Code 5010, 5003, 5206, 5207, 5208 adequately contemplates all of the Veteran's symptoms. 

As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met and referral for the assignment of an extraschedular disability rating is not warranted.


ORDER

Service connection for hemorrhoids is denied.

An evaluation in excess of 10 percent for right radial fracture with arthritis is denied.





REMAND

Concerning the issues of entitlement to service connection for tinnitus, a neck disability, and a shoulder disability and whether new and material evidence has been received to reopen claims for service connection for a back disability and headaches, the record reflects that the RO denied the claims in an October 2012 rating decision.  A July 2013 statement of the Veteran's representative refers to a June 2013 notice of disagreement on these issues.  Similarly, VACOLS reflects receipt of a NOD in June 2013. 

The claims file does not contain any Statement of the Case (SOC) for these issues and the Board must therefore remand it for the issuance of an SOC.  See Manlincon v. West, 12 Vet. App. 238, 240 (1999). 

Accordingly, the case is REMANDED for the following action:

The AOJ should issue a statement of the case that addresses the issues of entitlement to service connection tinnitus, a neck disability, a shoulder disability and whether new and material evidence has been received to reopen claims for service connection for a back disability and headaches.  The Veteran should be informed that, in order to perfect an appeal of these issues to the Board, he must file a timely and adequate substantive appeal following the issuance of the statement of the case.

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).



______________________________________________
REBECCA FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs