Citation Nr: 1339975 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 94-36 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for polycythemia, including as secondary to the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. 2. Entitlement to service connection for hypertension, including as secondary to the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor. 3. Entitlement to an initial evaluation in excess of 30 percent prior to November 2, 2011, and to an evaluation in excess of 50 percent thereafter, for dementia and anxiety disorder due to pituitary tumor (previously characterized as organic mental syndrome, secondary to a pituitary tumor). 4. Entitlement to an initial compensable evaluation for postoperative residuals of an incisional hernia. [The claims for increased initial evaluations for limitation of motion of the lumbar spine with scoliosis for the period prior to July 8, 2003, for degenerative disc disease of the cervical spine; for residuals of a transsphenoidal hypophysectomy of a pituitary tumor; and for sinusitis are addressed in a separate decision.] ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1975, from December 1975 to December 1979, and from October 1983 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 1994 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 1994, the RO granted service connection for organic mental disorder and awarded a 30 percent rating, and granted service connection for ventral hernia at a noncompensable rate. The Veteran perfected an appeal as to the initial ratings assigned, after which, in March 2001, the Board denied the hernia claim, and remanded the claim for an increased initial rating for organic mental disorder. In May 2002, the Court of Appeals for Veterans Claims (Court) vacated the Board's March 2001 decisions for action in accordance with a Joint Motion for Remand (joint motion). Since that time, both initial rating claims were remanded in October 2005, March 2008, and December 2009. In July 2009, the RO denied service connection for both hypertension and polycythemia. The Veteran perfected an appeal as to the denial of service connection. These claims were remanded by the Board in May 2011 and have now been returned for adjudication. In February 2012, the RO issued a rating decision which recharacterized the Veteran's mental disorder claim from "organic mental syndrome" to "dementia and anxiety disorder" and increased the rating to 50 percent, effective November 2, 2011. This increase during the appeal did not constitute a full grant of the benefit sought. Therefore, the Veteran's claim for an increased initial evaluation for the dementia and anxiety disorder remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board is satisfied that the RO and AMC has now substantially complied with all remand directives as they pertain to the claims herein decided, in particular entitlement ot service connection for polycythemia and entitlement to an increased initial evaluation for dementia and anxiety disorder and for postoperative residuals of an incisional hernia. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required.) Thus, the Board shall proceed with the decision as to these claims, below. In March 2012, the RO denied the Veteran's claims for special monthly compensation based upon housebound status, and for service connection for posttraumatic stress disorder (PTSD), as well as the claims alleging that the effective date for service connection for both tinnitus and bilateral hearing loss were clearly and unmistakably erroneous. The Veteran filed a timely notice of disagreement with these denials and a statement of the case was issued in May 2012. The Veteran filed a substantive appeal in May 2012, after the claims discussed in the decision below were already certified to the Board. These issues have not yet been considered by the RO following the substantive appeal and it is unclear to the Board whether the RO's development of the claims is complete, as it has not yet certified the issues to the Board. As such, the Board is not taking jurisdiction of these issues at this time, and rather refers them to the RO for appropriate action in accordance with the Veteran's substantiated appeal and normal VA procedure. If, once the RO's action is complete, the Veteran remains dissatisfied with the outcome, the claims must be certified to the Board so that appellate action can be completed. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Polycythemia is a laboratory finding and not a disability for VA compensation purposes; there has been no showing of polycythemia vera or any other disability associated with the Veteran's confirmed polycythemia. 2. The Veteran's dementia and anxiety disorder has been manifested throughout the entire appeal period by impairment in his short term memory and difficulty concentrating and learning new material, which caused the frequent need to change jobs, as well as led to an anxiety disorder manifested by irritability and anger; but has not been manifested by suicidal ideation, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. 3. Throughout the course of this appeal, outside of the period for which the Veteran was in receipt of a 100 percent temporary rating, the Veteran's postoperative residuals of an incisional ventral hernia have not included any indication of the use of a belt for support, or a weakening of the abdominal wall. 4. Throughout the course of this appeal, postoperative residuals of the incisional ventral hernia have included a 28 cm scar that has been consistently reported by the Veteran and shown in the medical evidence to be painful and superficial, but not poorly nourished with ulceration, greater than 144 cm in length, or associated with underlying soft tissue damage. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for polycythemia have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent, but no higher, initial rating for dementia and anxiety disorder due to pituitary tumor (previously characterized as organic mental syndrome, secondary to a pituitary tumor) are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.132, Diagnostic Code 9322 (1993). 3. The criteria for a compensable initial rating for postoperative residuals of an incisional hernia are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7339 (2012). 4. The criteria for an initial separate 10 rating for the abdominal scar associated with the postoperative residuals of an incisional hernia have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, with regard to the organic brain syndrome and hernia initial rating claims, the June 1994 rating decision under appeal was issued long before the VCAA was enacted, and the VCAA notice was first given long after June 1994. The Court acknowledged in Pelegrini that some claims were pending at the time the VCAA was enacted and that proper notice prior to the initial AOJ decision was impossible. The Court specifically stated in Pelegrini that it was not requiring the voiding or nullification of any AOJ action or decision, only finding that appellants are entitled to VCAA-content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based. In June 2003 and October 2006 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate increased rating claims. He was also notified as to what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations, thus meeting the requirements of Dingess. Moreover, the Board recognizes that the Veteran's appeals are longstanding and have challenged the initial evaluations assigned for these disabilities. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, the duty to notify with regard to the initial rating claims has been satisfied. As to the service connection claim, a September 2008 letter notified the Veteran as to what information and evidence is needed to substantiate his service connection claims, including on a secondary basis. He was also notified as to what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA, as well as how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Thus, the duty to notify with regard to the service connection claim has also been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, post-service private and VA treatment records, several VA examination reports, the records of the Social Security Administration, as well as the Veteran's lay statements. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Law and Analysis A. Service Connection Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Polycythemia The Veteran has claimed service connection for polycythemia, which he contends is a byproduct of his service connected pituitary gland disorder. Polycythemia is an increase in the total cell mass of the blood. See June 2011 VA examination report. At the outset, the Board observes that the evidence does not show and the Veteran does not claim that any disability related to polycythemia initially manifested in service. The service treatment records do not show any symptoms that could be construed as initial manifestations of a blood disorder. As such, the Board is limiting its analysis of this claim to the question of whether the Veteran has a disability and whether that disability was caused or aggravated by an already service connection disability, to include the service-connected transsphenoidal hypophysectomy of a pituitary tumor. The record reflects that the Veteran sought treatment with his private physician in May 2004, at which time Dr. C.P. noted an elevated hemoglobin level and assessed the Veteran has having polycythemia. Later the same month, an assessment of erythrocytosis was noted in the same physician's notes. This is synonymous with polycythemia. See Dorland's Illustrated Medical Dictionary, 1510 (31st ed. 2007). An ultrasound of the spleen was noted as normal in a follow-up report two days later. September 2004 records show polycythemia continuing on the Veteran's problem list; however in May 2006, Dr. C.P. issued a report from a follow-up visit related to the Veteran's "panhypopituitarism, " which included hypertension, hyperlipidemia and diverticular disease, but there was no mention at that time of any polycythemia. VA laboratory findings show a high hemoglobin level in June 2007, however, there is no indication of treatment required. June 2008 laboratory findings, however, are noted as normal. Records dated through 2010 from Dr. C.P. show ongoing treatment for various medical issues, but no treatment related to any residual of high hemoglobin levels or polycythemia. The Veteran underwent VA examination in March 2009. At that time, the examiner reviewed the Veteran's medical history and noted that neither the VA treatment records, nor the private records show that the Veteran required any medical intervention related to his elevated hemoglobin. The Veteran confirmed that he had received no phlebotomy therapy or extensive work-ups, nor did he have abnormal bleeding. At the time of examination, the Veteran also reported no headaches, shortness of breath, chest pain, sickle cell disease, burning of his feet, unusual erythema of his body, pruritus, swelling of his extremities, or vascular infarction. Diagnostic testing at the time of this examination was normal. The Veteran's hemoglobin was not elevated, and his hematocrit was also normal. The examiner concluded that the Veteran had "transient polycythemia - resolved," with the last finding in June 2007. The examiner concluded that this is most likely related to the Veteran's intramuscular testosterone therapy. The examiner also concluded that the Veteran did not have a diagnosis of polycythemia vera, but has "transient elevations of his hemoglobin, which correlates with polycythemia or erythrocytosis...This laboratory finding has not required the [V]eteran to have any particular treatment nor intervention." In May 2011, the Board remanded this issue in order to return the claims files to the March 2009 VA examiner for an assessment as to whether the Veteran's polycythemia represents mere laboratory findings, or whether there is a disability associated with the diagnosis. In June 2011, the Veteran underwent VA endocrine diseases examination. The examiner accurately stated the Veteran's medical history. Laboratory testing was also conducted, which revealed normal hemoglobin and hematocrit levels. The examiner diagnosed "relative polycythemia, transient & temporary condition, resolved without treatment." The examiner concluded by opining that polycythemia does not represent a true disease process. Rather, the examiner explained, polycythemia is an increase in the total cell mass of the blood, and relative polycythemia is a decrease in plasma volume without change in red blood cell mass and may be an acute, transient or chronic condition. The Veteran's records show a short period of elevated hemoglobin and hematocrit levels without any indication of elevation in the platelet or leukocyte count, which would be expected with a diagnosis of polycythemia vera, according to the examiner. Moreover, there is no evidence of treatment. The examiner stated that the condition can occur in people with hypertension. The examiner also determined that because the Veteran continues to undergo testosterone treatment and the hemoglobin and hematocrit levels are now normal, the polycythemia is not likely involved with the testosterone treatment. The examiner concluded that the Veteran's polycythemia was more than likely relative polycythemia based on laboratory findings outside the normal range results and more than likely did not indicate any disease process necessitating treatment. In sum, laboratory reports and the Veteran's private physician confirm the presence of polycythemia in the Veteran. However, in March 2009, a VA examiner characterized this as a laboratory finding, and in May 2011, a second VA examiner confirmed that characterization. At no time has any medical professional deemed the Veteran's polycythemia a disability that required medical treatment. The preponderance of the evidence shows that it is a mere laboratory finding and not a disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). As the claimed condition is merely a laboratory finding and not a disability, service connection is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). B. Initial Ratings 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 (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by a veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Dementia and Anxiety Disorder The Veteran initially filed his claim for service connection for his dementia and anxiety disorder (previously characterized as organic mental disorder and hereinafter referred to as "mental disorder") in October 1993 and he has perfected an appeal of the June 1994 rating decision, which initially granted service connection. The initial 30 percent rating is effective as of the date of the service connection claim, and the higher 50 percent rating is effective from November 2, 2011. The entire period is examined in this analysis. The Board notes that during the course of the appeal period, that portion of the rating schedule pertaining to mental disorders was revised, effective November 7, 1996. Where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies (unless otherwise provided). Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA has also issued a General Counsel opinion, which held that VA must first determine whether the revised version is more favorable to the Veteran, which may require the Board to apply both the old and new versions of the regulation. VAOPGCPREC 3-2000 (2000). If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. Id. Thus, while the Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, an effective date based on the revised criteria may be no earlier than the date of the change. Id.; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Accordingly, in this case, the Board must apply the previous version of diagnostic code 9322 (General Rating Formula for Organic Mental Disorders) for the period prior to November 7, 1996, while for the period on and after that date, the Board must apply whichever version is most favorable to the Veteran. The new regulations were not in effect when the rating decision on appeal was made, but the RO considered the new regulations in the October 2008 supplemental statement of the case. The Veteran was given notice of the new regulations. Therefore, he is not prejudiced by the Board's consideration of the new regulations. See Bernard v. Brown, 4 Vet. App. 384 (1993). The General Rating Formula for Organic Mental Disorders and the respective evaluations prior to November 6, 1996, are as follows: Impairment of intellectual functions, orientation, memory and judgment, and lability and shallowness of effect of such extent, severity, depth, and persistence as to produce total social and industrial inadaptability warrants a 100 percent rating. Symptom combinations productive of severe impairment of social and industrial adaptability warrants a 70 percent. Symptom combinations productive of considerable impairment of social and industrial adaptability warrants a 50 percent rating. Symptoms combinations productive of definite impairment of social and industrial adaptability warrants the currently assigned 30 percent rating for the initial appeal period. 38 C.F.R. § 4.132, Diagnostic Code 9322 (1993). The General Rating Formula for Mental Disorders and the respective evaluations following November 6, 1996, are as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name warrants a 100 percent rating. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships warrants a 70 percent rating. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships warrants a 50 percent rating. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) warrants a 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9326 (2012). In this case, in January 1994, shortly following the Veteran's claim for service connection, he was afforded a VA mental disorders examination. At that time he reported difficulty recalling words and that he was not as mentally alert as in the past. There was no depression noted, although he was reported as emotional and that he cries easily. His mood and affect were noted as appropriate and his recollection of recent material was observed as good. Stream of thought was well-connected and he had no psychotic ideation. There was no indication of increased anxiety at that time. He was deemed to have mild organic mental syndrome manifested by some impairment in recent memory, difficulties in concentration and maintaining his attention, and mild emotionality secondary to his pituitary tumor. The Veteran underwent a private neuropsychological evaluation in December 1994, at which time he was observed as alert, oriented, attentive and pleasant with goal-directed conversation. He was noted as neatly groomed with appropriate affect, but euthymic mood. His cognitive functioning was also reported as good. Memory and attention abilities were noted as improving at that time. Mild organic mental disorder was again noted. The Veteran again underwent VA mental disorders examination in February 1995. He continued to complain of problems with short term memory, but the examiner noted that it was not evident at the time of interview. He also showed no emotionality at that time, reported no irritability, no depression and no hallucinations or delusions. He was noted to be "quite normal from a psychiatric interview standpoint," with mainly complaints of short term memory impairment and the inability to tend to several things at once, which he was previously able to do. An April 1995 private psychological report showed "at most a very mild organic impairment characterized by a slight dulling of complex executive abilities...as well as mild inefficiency in learning (but not recalling) complex verbal information and discriminating between similar sounding words." Remote memory was noted as unimpaired and short term learning and recall were reported as substantially intact, but with inefficiency when asked to learn complex verbal information. By November 1999, the Veteran reported to a VA examiner that he had difficulty remembering names and difficulty concentrating, but had no impairment in thought process or communication, and had no delusions or hallucinations. His behavior was noted as appropriate and he reported no suicidal or homicidal ideation. He was oriented to person, place and time, and had no obsessive or ritualistic behaviors. While he was not noted to have major depression or significant anxiety, he did report a mildly depressed mood at times, mildly impaired impulse control with respect to anger and mildly impaired sleep. The VA examiner determined that the Veteran had no psychological diagnosis at that time and that his symptoms were related to his neurological condition. In an October 2006 statement, the Veteran reported that he went through twelve jobs between 1993 and 2000 due to frustration over problems learning new information, or being fired due to the inability to learn fast enough or being too emotional. He reported ongoing problems with memory of faces and names, as well as trouble doing simple tasks. Also in October 2006, the Veteran's wife submitted a statement in which she confirmed the Veteran's increasing frustration with his inability to perform mental tasks the way he did prior to his tumor. She reported that he becomes embarrassed due to inability to remember people's names. She also confirmed that he had difficulty at work due to inability analyze complex issues or learn new concepts. The next VA mental disorders examination was conducted in September 2008. By that time, the Veteran was noted as edgy, outspoken and candid, well-groomed, appropriately dressed, alert, verbal and cooperative. The Veteran was a member of alcoholics anonymous (AA) at that time and reported that he had no friends outside of AA. He also reported hating crowds, having chronic, daily mild anxiety, severe irritability, moderate poor concentration, mild panic (every few weeks), fear of dying, restlessness, borderline depression, severe frustration, and interrupted sleep. The Veteran reported no suicidal thoughts, gestures or attempts. Memory impairment continued to be noted. The examiner observed that the Veteran's speech was intense with angry content, but that the content of speech was appropriate and well connected to the topic of discussion, and that his thought process was linear and logical. Hallucinations were absent, and hygiene was noted as good. Following testing, the Veteran's long term memory was noted as good, but his short term memory was noted as poor. Obsessions and rituals were absent, but panic symptoms were noted as present at this time. Anxiety symptoms were noted as excessive worry and fears, and the Veteran's impulse control was deemed fair. The VA examiner assessed the Veteran as having dementia due to his pituitary brain tumor and anxiety disorder due to his tumor and loss of mental functioning. The Veteran was most recently examined for this disability in November 2011. The VA examiner accurately reported the history, which was consistent with that reported throughout the course of this longstanding claim. The examiner confirmed that the Veteran is not prescribed any medication for any mental disorder and is not active in mental health treatment. The examiner confirmed that there are not formal mental health treatment records in the Veteran's file. Continued involvement and leadership/sponsoring with AA was noted. The Veteran reported that he does experience hypervigilance, exaggerated startle response, and difficulty falling or staying asleep. The examiner confirmed the following symptoms as being present: anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation or mood, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner confirmed that the Veteran's social skills were fair and thought process was logical, coherent and relevant. The Veteran's affect was noted as "primarily irritable" and his reasoning and judgment was noted as fair. Moreover, continued symptoms of dementia were confirmed. In particular, increased emotionality/disinhibition, increased impulsiveness, reduced short-term memory capacity, forgetfulness about names, phone numbers and other incidental information, some difficulty with math, slower processing speed, slower reasoning, and some lethargy. The examiner also confirmed the previous diagnosis of anxiety disorder associated with the tumor. The examiner assessed the Veteran as having occupational and social impairment with reduced reliability and productivity. Following this VA examination, the RO increased the Veteran's rating to 50 percent disabling, effective on the date of the November 2011 VA examination. The Veteran, in a March 2012 letter, noted that he agreed with the increase from 30 percent to 50 percent, but that he feels the 50 percent should be effective on the date of the initiation of his claim in 1993. Again, the Board must apply the previous version of diagnostic code 9322 (General Rating Formula for Organic Mental Disorders) for the period prior to November 7, 1996, while for the period on and after that date, the Board must apply whichever version is most favorable to the Veteran. Throughout the course of the Veteran's claim and appeal, he has consistently and in an uninterrupted fashion reported impairment in his short term memory that has significantly impacted his work life in a negative fashion. Moreover, he has consistently been noted to have difficulty concentrating and learning new material. This has led, over the years, to the frequent need to change jobs, as well as to an anxiety disorder manifested by irritability and anger. The Board finds that these symptoms, which have existed since the initial filing of the claim for service connection, can be likened to a combination of symptoms of the organic mental disorder/anxiety disorder/dementia that are productive of considerable impairment of social and industrial adaptability. Under the original rating criteria, which may be applied for the entire period of appeal, these symptoms warrant a 50 percent rating. The Board does not find, however, that these symptoms amounted to severe impairment of social and industrial adaptability, so a 70 percent rating is not warranted. The Veteran is proven to be able to hold a job, and to have positive relationships with his AA family, as well as during his longstanding marriage to his wife. He also has had no legal trouble. Thus, the Board finds that under the old criteria, a 50 percent rating, and no higher, is warranted for the entire period of appeal. Moreover, the Board does not find that a 70 percent rating is warranted under the revised rating criteria. The Veteran has never reported suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. There has been some report of impaired impulse control (such as unprovoked irritability with periods of violence), however the Board does not find that it is noted consistently, and the Board does not find that this one characteristic amounts to a finding that the Veteran's service connected dementia and anxiety disorder due to pituitary tumor. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, has not been shown. Thus, an initial 50 percent rating, and no more, is granted for the entire period prior to November 2, 2011, for dementia and anxiety disorder due to pituitary tumor, however, a rating in excess of 50 percent is not warranted at any time. Incisional Hernia and Residual Scar The Veteran's service-connected postoperative repair of an incisional ventral hernia has received a noncompensable rating since the initial grant of service connection by way of the June 1994 rating decision, aside from the temporary convalescent rating assigned from May 14, 2004, to August 1, 2004. The rating is assigned under 38 C.F.R. § 4.114, Diagnostic Code 7339. The currently assigned noncompensable rating is for wounds, postoperative, healed, with no disability and a belt not indicated. A 20 percent rating may potentially be assigned if there is a small hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is for large hernia, not well supported by belt under ordinary conditions. A 100 percent evaluation is for massive, persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. 38 C.F.R. § 4.114, Diagnostic Code 7339. Additionally, as will be discussed in further detail, below, the Veteran has been shown to have a scar on his abdomen associated with his service-connected hernia and its surgery. The Board observes that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other conditions. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, in evaluating the Veteran's service-connected postoperative repair of an incisional ventral hernia, the Board will address whether separate ratings for scars are warranted. Initially, the Board notes amendments were made to the rating criteria for skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, because the Veteran's claims were pending before October 23, 2008, and no request was made for consideration of these issues under the revised criteria (38 C.F.R. § 4.118 , after October 23, 2008), these issues will only be evaluated under the rating criteria in effect prior to October 23, 2008. Id.; see also 38 C.F.R. § 4.118. Service-connected scars are generally evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Code 7800 to 7806. The Board notes that the criteria for evaluating skin disabilities were revised in August 2002, during the period that is the focus of this appeal. Again, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies (unless otherwise provided). Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA has also issued a General Counsel opinion, which held that VA must first determine whether the revised version is more favorable to the Veteran, which may require the Board to apply both the old and new versions of the regulation. VAOPGCPREC 3-2000 (2000). If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. Id. Thus, while the Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, an effective date based on the revised criteria may be no earlier than the date of the change. Id.; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Before August 30, 2002, the rating schedule read as follows: Diagnostic Code 7800 governs ratings for scars of the head face or neck, which is not applicable in this case. Prior to the August 2002 regulatory change, Diagnostic Codes 7801 and 7802 governed only burn scars, which is also not applicable here. 38 C.F.R. § 4.118, Diagnostic Code 7800-7802 (2001). Superficial scars that are poorly nourished with repeated ulceration warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2001). Scars which are superficial and tender and painful on objective demonstration warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2001). Scars that limit the function of any part affected are rated based upon limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2001). Beginning on August 30, 2002, the rating schedule reads as follows: Scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm.) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2003). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. Scars, other than head, face, or neck, that are superficial and that do not cause limited motion covering an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2003). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2. Diagnostic Code 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2003). Note 1 to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to Diagnostic Code 7803 provides that a superficial scar is one not associated with underlying soft tissue damage. Scars which are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2003). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. Other scars are rated based upon limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. In this case, the Veteran underwent repair of a ventral hernia in service. In January 1994, VA general medical examination noted that there was no hernia present. An August 1998 VA examination report shows that at that time the Veteran had "early signs of an incisional ventral hernia present in the upper mid epigastric area of the incision." There was no indication of the need for support, or a weakening of the abdominal wall. The examiner did note the presence of a 28 cm vertical scar. The scar, however, was not noted to be symptomatic and the examiner noted the abdomen to be otherwise normal. Upon examination in October 1999, the Veteran reported his feeling that there had been a reoccurrence, however, physical examination revealed no signs of any ventral hernia at that time. This examiner also reported a 28 cm vertical scar in the upper mid epigastric area of the abdomen extending down below the umbilicus. No symptoms related to that scar are reported. Despite the 1999 report of no evidence of a hernia present, in May 2004, the Veteran underwent repair of the recurrent incisional upper ventral hernia. Follow up treatment notes from the private physician who conducted the surgery show that it healed well. A December 2004 statement from the surgeon noted the Veteran's surgery as a ventral herniorrhaphy with mesh and also a right inguinal herniorrhaphy. The inguinal hernia is not a part of the service-connected condition. Follow up notes into 2005 show no surgical complications, and also there is no indication of a symptomatic scar in any of the post-surgery follow-up records. The Board notes that the Veteran did receive a temporary 100 percent convalescent rating for a period around the 2004 hernia surgery. The question in this appeal is whether a compensable rating is warranted either before or after that convalescent rating. In August 2005, the Veteran contacted a Dr. C.B. with information related to Dr. C.B. creating an independent medical evaluation related to his claim. There is no evidence that the doctor ever physically examined the Veteran. In this statement, the Veteran reported that he has to be cautious about putting pressure around the area of his hernia surgery. He reported that the incision is ten-inches long. Dr. C.B. then submitted a report which simply referred to it as a "very large" and "painful" scar associated with the Veteran's colon resection surgery. No further discussion is provided, presumably because Dr. C.B. did not physically examine the Veteran. Thus, this report is of little added value to this claim. The Veteran, in November 2005, submitted a statement reporting his history of hernia surgery, but making no mention of present symptoms. There is no indication in this report that the Veteran had weakening of abdominal wall and indication for a supporting belt at that time. A second statement received in November 2005 clearly indicates the Veteran's contention that he should be awarded a separate rating for the scar associated with his hernia surgery. He noted that the scar causes him pain, but made no description of actual symptoms of the scar. He again reported his surgical history and concluded that compensable ratings for the hernia and for a scar are warranted. A similar statement was received in October 2006. The Veteran again described the scar as painful at that time. Another statement by the Veteran in June 2007 simply reports the history, which is consistent with the remaining record. In October 2008, the Veteran's wife also submitted a statement of her personal observation that the Veteran's abdominal scar is painful for him. However, her specific description seems to be not of the actual skin, but of the hernia repair area as a whole. She reported that he feels soreness when he laughs or sneezes, and when he bumps the area. He also reported that he has to stretch the area. She also reported that the Veteran is embarrassed about the appearance of the scar. The Veteran, in November 2008, again submitted a report indicating his contention that a separate compensable evaluation is warranted for the scar associated with the hernia surgery. In November 2008, a private physician, Dr. R.M.B., submitted a report following physical examination of the Veteran. This physician reported on the Veteran's history of hernia surgery, and made no mention of weakening of abdominal wall and indication for a supporting belt. The physician did note the existence of a midline vertical incision scar that is 10 inches long, with an average width of 1.5 to 2 cm. The scar is described as flat and atrophic without evidence of hypertrophic scarring. Mild discomfort is noted along the incision approximately 3 cm above the umbilicus. The scar is noted as adherent to the linea alba. The Veteran continued to report that his scar is painful in a March 2012 statement. Thus, throughout the course of this longstanding appeal, the evidence has not shown that the Veteran's service-connected postoperative residuals of an incisional hernia are manifested by small hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. The Veteran did experience a reoccurrence of the originally service connected hernia, but was compensated surrounding the treatment for that reoccurrence. The evidence prior to and since the 2004 surgery does not show that a compensable rating is warranted under 38 C.F.R. § 4.114, Diagnostic Code 7339. However, the Veteran's in-service hernia surgery and post-service surgery have resulted in a 10 inch (28 cm) scar that has been documented in the medical record and has been consistently described as painful by the Veteran. There is no indication either by the Veteran or by way of any medical evidence that the scar is poorly nourished with ulceration or that it is greater than 144 cm in length, or that it is associated with underlying soft tissue damage. Thus, there is no basis upon which to grant a rating in excess of 10 percent for the scar. Nonetheless, under both the old and new rating criteria for Diagnostic Code 7804, a 10 percent rating is warranted for a scar such as the Veteran's. Scars which are superficial and tender and painful on objective demonstration warrant a 10 percent rating under the old rating criteria. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2001). Scars which are superficial and painful on examination are rated as 10 percent disabling under the new rating criteria. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2003). In summary, since the date of service connection, the Board denies a compensable rating under Diagnostic Code 7339 for the postoperative residuals of an incisional hernia, but grants a separate 10 percent rating under Diagnostic Code 7804 for the abdominal scar associated with that hernia surgery under Esteban. Extraschedular Consideration The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point since the Veteran's initial claim have the disabilities been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria are adequate to rate the disabilities under consideration. Although the Veteran's complaints of disabilities suggest interference with occupational functioning, it does not appear that his disabilities "markedly" interfere with employment. Accordingly, and because there is also no evidence that he has been hospitalized for his disabilities at any time during the appeal periods, the threshold requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for polycythemia, including as secondary to the service-connected residuals of a transsphenoidal hypophysectomy of a pituitary tumor, is denied. An initial 50 percent rating, but no more, for the service-connected dementia and anxiety disorder due to pituitary tumor (previously characterized as organic mental syndrome, secondary to a pituitary tumor) is granted for the entire period of appeal, subject to the legal authority governing the payment of VA compensation. An initial compensable evaluation for postoperative residuals of an incisional hernia is denied. An initial 10 percent rating, but no more, for the abdominal scar associated with postoperative residuals of an incisional hernia is granted for the entire period of appeal, subject to the legal authority governing the payment of VA compensation. REMAND The Veteran contends that he is entitled to service connection for hypertension, in that he believes his hypertension arose due to the drug therapy he underwent for residuals of pituitary surgery. The Board has reviewed the Veteran's service treatment records and his post-service treatment records following his August 1993 separation from active service in order to determine when the Veteran's hypertension initially manifested. Service treatment records show that the Veteran's blood pressure was measured as 143/87 in July 1993, shortly prior to his separation from active service. Following service, the records show that the Veteran was first seen in a VA endocrinology clinic in February 1994, at which time his blood pressure readings were 145/99 and 135/84. A May 1994 note from the same clinic again shows elevated blood pressure reading, this time at 143/82. No medication was listed in this report to treat hypertension. A September 1994 note from the same clinic shows blood pressure readings of 148/90 and 141/83. In December 1994 it was 130/95, and in February 1995, it was 145/102. A March 1995 note shows the diagnosis of hypertension, and also shows that the Veteran was prescribed Norvasc to treat the hypertension. April 1995 records show 142/94 and 140/88 and again document the diagnosis of hypertension. The record also includes initial treatment with the Veteran's private physician, Dr. C.P. in August 1996. These reports show that the Veteran reported being dissatisfied with his VA care related to hypertension and that he was seeking this private doctor's care. The current medications list on that report included "Norvasc 10 to 15 mg a day" for hypertension. Records from this point forward are consistent in their showing of hypertension that is controlled with medication. Thus, to this point, the record establishes that the Veteran had elevated blood pressure during active service, with the first post-service notation of elevated blood pressure in February 1994, which is within one year of his discharge from service. The first indication of the requirement for continuous medication to control hypertension is found in March 1995, which is more than one year following his discharge from service. The RO has continued to deny the Veteran's claim on the basis that, while the Veteran's hypertension is shown to have been diagnosed within one year of his discharge from service, it is not to have manifested to a degree of 10 percent or more within one year of service so as to warrant presumptive service connection under 38 C.F.R. § 3.307 and § 3.309. The Board notes that under 38 C.F.R. § 4.104, Diagnostic Code 7101, a 10 percent rating for hypertension requires a showing of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or the requirement of continuous medication for control with a history of diastolic pressure predominately 100 or more. The Board observes that at no time during the course of this longstanding appeal, has a VA examiner been asked to determine whether it is as likely as not that the Veteran's hypertension initially manifested in service considering the in-service notation of elevated blood pressure in July 1993, coupled with the continuing elevated blood pressure and a confirmed diagnosis by March 1995 and the requirement of medication by that time as well. In December 1995, a VA examiner noted the Veteran's hypertension diagnosed, but gave no indication of its etiology. August 1998 and October 1999 VA examiners also confirmed the hypertension diagnosis, but neither gave an opinion as to etiology. In March 2009, the Veteran underwent VA examination in an effort on the part of the RO to determine the etiology of his hypertension. In particular, the VA examiner was asked to determine if the hypertension was caused by service-connected disabilities or the medications taken for those disabilities. The examiner noted the onset of hypertension as at the time of a March 23, 1995 VA treatment record which showed elevated blood pressure; however, the examiner also summarized the one in-service notation of elevated blood pressure, as well as the several post-service notations prior to March 1995. The examiner diagnosed "hypertension - onset March and April of 1995." Further, the examiner opined that it is not at least as likely as not that the Veteran's hypertension is caused by or the result of medications taken for service-connected conditions and/or caused by the service connected conditions themselves. The examiner, however, did not assess whether the in-service elevated blood pressure reading was as likely as not the initial manifestation of hypertension, such that service connection may be warranted on a direct basis. In this regard, the March 2009 VA examination report is lacking. In May 2011, the Board remanded this issue for further opinion, in particular to assess whether it is as likely as not that the Veteran's hypertension "was first manifested in service or within one year thereafter." In June 2011, the Veteran again underwent VA examination. This VA examiner noted that the Veteran was not hypertensive prior to his pituitary gland surgery, and that the "first diagnosis appears to be 1994 when the Veteran was started on treatment with Beta blocker by" Dr. C.P. The Veteran is noted to have been on medication since that time. This is entirely inaccurate. Again, the Veteran's first treatment with Dr. C.P. was in August 1996, not 1994. Moreover, the examiner determined that it is at least as likely as not that the Veteran's hypertension was present within one year of military separation, but failed to determine whether the hypertension can be said to have been incurred during service. The examiner noted the Veteran's elevated blood pressure readings in July 1993, May 1994, August 1994, and September 1994, and noted that the readings "would make the diagnosis of hypertension within the time period of one year." Again, for a finding of presumptive service connection, the hypertension need not simply be diagnosed within one year of service, it must manifest to the degree of a 10 percent rating within that one year. Nonetheless, because there is a showing of an in-service elevated blood pressure reading, a VA examiner must issue an opinion as to whether it is as likely as not that the Veteran's current hypertension initially manifested during or is otherwise due to his period of active service. Because the VA examiner did not address the matter of whether the Veteran's hypertension initially manifested in service, the questions posed in the May 2011 Board remand were not answered in full. The Board is aware that the VA examiner opined that the Veteran did not have consistently elevated readings in service to warrant a diagnosis of hypertension at that time, but the Board believes that this still leaves open the possibility that the elevated readings in service represented the onset of the later diagnosed hypertension. The Court has held that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file must be returned to the March 2009/May 2011 VA examiner(s) if available, or another qualified medical professional, for an addendum opinion. The examiner must address whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's current hypertension first manifested during service. The examiner must discuss the July 1993 showing of elevated blood pressure and determine whether this may be deemed the initial manifestation of the Veteran's current hypertension. 2. Then, the claim must be readjudicated. If the determination remains unfavorable, the Veteran must be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs