Citation Nr: 1340256 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 03-32 126A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for a bilateral hip disorder. 3. Entitlement to service connection for an eye condition, other than dry eye syndrome, to include as secondary to service-connected hypertensive heart disease. 4. Entitlement to service connection for dry eye syndrome, to include as secondary to service-connected hypertensive heart disease. 5. Entitlement to a disability rating in excess of 60 percent for hypertensive heart disease. 6. Entitlement to a disability rating in excess of 30 percent for renal insufficiency. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1984 through April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2003 and June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The February 2003 rating decision denied a rating in excess of 60 percent for hypertensive heart disease. In the June 2005 rating decision service connection, the RO declined to reopen the Veteran's service connection claim for a right foot disorder and denied the original claim for entitlement to service connection for a bilateral hip disorder. In that same rating decision, the RO reopened the claim of service connection for his claimed left foot and low back disorders, but denied the claims on the merits. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2010. A transcript of the hearing is associated with the claims file. The case was most recently before the Board in May 2013, and it reopened the claims of service connection for the bilateral foot and low back disorders. All claims listed on the cover page of this decision were remanded for further development, and the case has since been returned to the Board for adjudication. In a July 2013 rating decision, the Veteran was awarded service connection for his low back disability, effective September 2004. This is considered a full grant as to the service connection claim for a low back. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. It appears that in the Veteran's July 2013 statement, he is contesting the amount of "back pay" received from the grant of a 30 percent rating for his renal insufficiency in a May 2013 rating decision. The Board does not have jurisdiction over this issue, and it is referred to the AOJ for any appropriate action. The issues of entitlement to service connection for a bilateral eye disability, other than dry eye syndrome, entitlement to service connection for a bilateral foot disability, and entitlement to a rating in excess of 30 percent for renal insufficiency are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. No bilateral hip disability has been present during the pendency of this claim. 2. Dry eye syndrome is aggravated by the medications taken for hypertensive heart disease. 3. Throughout the entire appeal period, the Veteran's hypertensive heart disease has been manifested by an ejection fraction in excess of 30 percent; METs greater than 3, but less than 5; and without evidence of congestive heart failure. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in or aggravated during his military service. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Dry eye syndrome is aggravated by hypertensive heart disease. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 3. A disability rating in excess of 60 percent for hypertensive heart disease is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.7, 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in May 2002, April 2005, March 2006, and May 2011 fully satisfied the duty to notify provisions for both the increased rating and service connection claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The March 2006 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board is aware the March 2006 notice was not provided until after the initial adjudications on the claims. The required notice was provided in March 2006, followed by the most recent readjudication of the claims in an August 2013 Supplemental Statement of the Case. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, although the VLJ did not specifically explain the basis of the prior determinations, the exact element(s) of the claims that were lacking to substantiate the claims for benefits, or specifically suggested the submission of evidence that would be beneficial to the Veteran's claims, he more generally discussed these elements with the Veteran. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the discussion during hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ substantially complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been represented by an experienced national service organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection and increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. In this regard, the Board notes that pursuant to the May 2013 remand, the RO/AMC was directed to provide the Veteran with VA Form 21-4142 (release form) in order to obtain outstanding evidence from Moore Regional Hospital. This form was provided to the Veteran as an enclosure to a notice letter dated in June 2013. To date, the Veteran has not provided the release in order to retrieve this information. Without this release, VA cannot obtain these private records and as such, the Board finds VA has fulfilled its duty to assist in this matter. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Veteran was provided the appropriate VA examinations for his service-connection claims in December 2011 and July 2013. The examiners and VA professionals considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination (with respect to the July 2013 examinations). The December 2011 VA examiner opined provided a positive opinion with respect to dry eye syndrome, but did not offer any clear opinion with respect to the other eye problems. The July 2013 examiner provided found that the Veteran did not have a current bilateral hip disability. Therefore, as the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With respect to the increased rating claim, the RO provided the Veteran appropriate VA examination most recently in December 2011. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the December 2011 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection and an increased rating. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the July 2013 VA examination, August 2013 supplemental opinion to the September 2012 opinion, attempts to retrieve the outstanding treatment records, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its May 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2006). 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) caused by or (b) aggravated by a service-connected disability. Id. The Board observes that the provisions of 38 C.F.R. § 3.310 were amended effective as of October 20, 2006, during the pendency of the instant appeal. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by service-connected one is judged. Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the non-service connected disability before an award of service connection based on aggravation may be made. This had not been the VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation. For this reason and as the Veteran's claim was pending before the regulatory change was made, the Board will consider his claim under the prior version of 38 C.F.R. § 3.310 as it is more favorable to the Veteran. In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two 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. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background and Analysis Service Connection 1. Bilateral Hip Disability The Veteran contends that he has a current bilateral hip disability related to his military service, to include as secondary to a service-connected disability. A review of the Veteran's service treatment records shows no bilateral hip complaints at enlistment or during service. There is no discharge physical examination of record. National Guard records do not show any treatment for or complaints related to his bilateral hips. In June 1987 and August 1988, the Veteran was afforded VA examinations at which time he did not report any disability of the bilateral hips. The Veteran was afforded a VA joints examinations in November 1997 and May 1998, and he never reported any bilateral hip problems. As shown by the evidence of record, it appears the Veteran first related he had bilateral hip problems in the early to mid-2000s. The Veteran was afforded a VA examination of the hips in July 2013, during which the Veteran denied any in-service treatment for a hip related injury or treatment. Following service, the Veteran denied any post-service trauma or injury to the hips. He recalls the onset of bilateral hip pain was around 2000. Currently, he endorses dull ache and soreness in the hips and is relieved by rest, moving around, and painkillers. The Veteran reported that prolonged sitting causes numbness in the bilateral feet which cases his hips to feel sore. Physical examination revealed bilateral hip ranges of motion within normal limits and without objective evidence of painful motion. Following review of the claims file, and interview and examination of the Veteran, the examiner found that there are no pathological findings of a bilateral hip condition. In other words, the Veteran does not have a bilateral hip disability found on examination or shown in other treatment records. As such, the examiner did not need to provide an opinion with respect to direct or secondary service connection. Upon careful review of the evidence of record, the Board finds that no bilateral hip disability was ever diagnosed during service or thereafter, nor has one been shown to be secondary to a service-connected disability. In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (stating that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"). Absent competent evidence of the existence of a disability, service connection cannot be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the most probative opinion of record, dated in July 2013, shows no current bilateral hip disability, nor has any other clinical evidence of record shows a diagnosis of a bilateral hip disability during the appeal period. It is important to note that mere pain, alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted). Here, the great weight of the clinical evidence of record does not show a current disability of the bilateral hips as contemplated by the regulations. The Board has considered the Veteran's assertions that he served in "Desert Storm," and the evidence shows he did serve in the Middle East from September 1991 to October 1991, but the evidence shows he served in Turkey and not one of the enumerated locations listed under 3.317(e)(2). In other words, he is not considered a Persian Gulf veteran for VA benefits purposes and thus, his complaints of bilateral hip pain are not considered possible manifestations of an undiagnosed illness. Additionally, the Board is aware of a June 2013 anesthesia consult referenced in the August 2013 Supplemental Statement of the Case showing the Veteran had decreased hip flexion strength. It appears that this is an acute instance of decreased hip flexion strength and not shown to be due to any underlying bilateral hip pathology as both prior to and after the referenced consult, the Veteran's hip function was within normal limits. Moreover, the totality of the evidence shows that the Veteran has full range of motion, strength, and functionality in his bilateral hips. Therefore, the Board finds that the competent medical evidence of record does not show the Veteran to have a bilateral hip and service connection is not warranted. 2. Dry Eye Syndrome The Veteran maintains that he has a current bilateral eye disability that was caused or aggravated by his service-connected hypertensive heart disease and the medications used to treat it. As noted on the cover page of this decision, the Board has separated the claimed eye disabilities. The Veteran has competently and consistently reported increased dryness in his eyes following increases in use of hypertension medications. This dryness requires multiple eye drops daily for treatment. The Board has no reason to question his credibility with respect to these complaints. Without the need to go into all the evidence of record in detail, the Board notes that the Veteran underwent a QTC eye examination in December 2011 during which he was diagnosed as having dry eye syndrome. The examiner opined that his dry eye syndrome was aggravated by his medication for hypertensive heart disease. There is no opinion to the contrary with respect to the dry eye syndrome, and this opinion is based upon the clinical evidence of record, and interview and examination of the Veteran. Thus, the Board finds that the competent and credible evidence of record shows that the Veteran's dry eye syndrome is aggravated by his service-connected hypertensive heart disease and the medications required to treat it. Increased Rating The Veteran contends that his hypertensive heart disease warrants a rating in excess of 60 percent. The Veteran's hypertensive heart disease is rated at 60 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7007. Under this code, a 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7007. In other words, in order to assign a higher rating than 60 percent, the clinical evidence of record must show chronic, congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fracture of less than 30 percent. By way of background, service connection for hypertension was originally awarded in an August 1987 rating decision. He was assigned a 20 percent rating, effective June 1987. In an October 1998 rating decision, the Veteran's hypertension was recharacterized as hypertensive heart disease. His rating was increased to 60 percent disabling, effective April 1998. The Veteran has filed for increases of his hypertensive heart disease on and off since the original rating decision dated in 1987. He filed his current claim for increase in April 2002, which was denied in the appealed February 2003 rating decision. Following his claim, the Veteran was afforded a VA examination in December 2002, during which he was noted to have uncontrolled blood pressure, hypertensive heart disease with cardiac enlargement and pulmonic murmur. The examiner opined that the Veteran's METs would probably be 7. The examiner indicated that because there is no swelling in the lower extremities, a definitive diagnosis of congestive heart failure cannot be made. In April 2003, the Veteran was admitted to a private hospital with chest pain. At the time of the hospitalization, he had a repeat myocardial perfusion that demonstrated an ejection fraction of 48 percent. The assessment, in addition to hypertensive heart disease, was left ventricular hypertrophy and secondary ST segment changes, and sinus bradycardia. The following month during a VA treatment, the Veteran's ejection fracture was estimated at 65 percent. In February 2005, the Veteran was afforded another VA heart examination, during which he complained of chest pain with walking, moving furniture, or intercourse. He reported that pain can occur at rest also. The examiner noted a history of cardiac catheterizations twice in 1997 that showed cardiomegaly but no coronary artery disease. Physical examination revealed left ventricular hypertrophy, but normal peripheral pulses and no evidence of congestive heart failure. Heart examination showed normal sinus rhythm with grade 1/6 pulmonic systolic murmur. There was no evidence of jugulvenous distension, or carotid bruits. Examination of the lungs and abdomen were normal. The examiner diagnosed hypertensive heart disease, essential vascular hypertension, and chest pain of unknown etiology. In November 2006, the Veteran was hospitalized with cardiac complaints. Following diagnostic testing, the treating professional diagnosed mild to moderate left ventricular hypertrophy. At one point the treating professional determined the left ejection fracture was 40 percent, but later indicated the imaging was unclear. He underwent catheterization on the right and left side, left ventriculography, and selective coronary angiography. Following the catheterization, the ejection fraction was 48 percent, with a congenital cardiovascular anomaly in the right coronary artery, high grade stenosis, and mildly abnormal structure and function of the left ventricle. There was no diagnosis of congestive heart failure. During a December 2010 VA outpatient treatment, the Veteran was diagnosed as having coronary heart disease, status-post triple vessel coronary bypass graft surgery (November 2010), ascending aortic aneurysm, status-post repair, and uncontrolled hypertension. The Veteran was afforded a VA examination in December 2011, during which he was diagnosed as having an old myocardial infarction per EKG, coronary artery disease, and hypertensive heart disease. His history of coronary bypass surgery, angioplasty, and bilateral catheterization was noted. Additionally, the Veteran has a history of hypertension and cardiomegaly. The examiner related that the Veteran did not have congestive heart failure, arrhythmia, heart valve conditions, infectious heart conditions, or pericardial adhesions. Physical examination revealed surgical scars, but the examiner opined that they were not painful or unstable, nor are they greater than 39 square centimeters. Recent history of diagnostic testing revealed cardiac hypertrophy, cardiac dilation, ischemia, and an abnormal coronary artery angiogram with evidence of stenosis. Following the interview-based METs testing, the examiner predicted the Veteran's METs level was greater than 3, but less than 5 when he experiences dyspnea and angina. In a September 2012 records review, the VA physician opined that the Veteran's cardiovascular symptoms due to hypertensive heart disease and nonservice-connected coronary artery disease cannot be differentiated. In reaching this conclusion, the examiner noted that the coronary artery disease is included within the problems caused by his hypertensive heart disease. In other words, the examiner opined that the Veteran's coronary artery disease is at least as likely as not caused by his service-connected hypertensive heart disease. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against awarded a disability in excess of 60 percent for the Veteran's hypertensive heart disease. At no point during the appeal period was the Veteran shown to have congestive heart failure, METs of less than 3, or an ejection fraction of less than 30. Even considering all the heart-related symptoms (coronary artery disease and hypertensive heart disease), the competent and probative evidence of record shows that ejection fracture was at its worst to 40 percent and METs greater than 3 but less than 5. Additionally, VA treatment records and examinations specifically noted no history of or current diagnosis of congestive heart failure. The Board appreciates the Veteran's contentions and arguments in support of his claim, but finds that these reports of symptoms in conjunction with the objective medical evidence of record simply do not support a rating in excess of 60 percent. The Board has considered the statements he made to treating professionals and examiners, but notes that the rating criteria are specific and his heart disability is not of the severity required for the higher, 100 percent rating. Accordingly, the Board finds a disability rating in excess of 60 percent for hypertensive heart disease is not warranted during the timeframe on appeal. Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hypertensive heart disease is inadequate. A comparison between the level of severity and symptomatology of the Veteran's heart disability and the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports symptoms including chest pain and dyspnea. As discussed above, the current ratings assigned are adequate to fully compensate the Veteran for his hypertensive heart disease and its related symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Service connection for a bilateral hip disorder is denied. Service connection for dry eye syndrome is granted. A disability rating in excess of 60 percent for hypertensive heart disease is denied. REMAND Bilateral Eye Unfortunately, the Board finds that the Veteran's service connection claim for a bilateral eye disability must again be remanded. As noted above, the Board is awarding service connection for dry eye syndrome on a secondary basis, but the other eye disabilities remain on appeal The Veteran contends that his bilateral eye complaints are either related to a period of Active Duty for Training (ACDUTRA) wherein he was treated for a sty in the eye in 1998, due to irritants during Desert Storm, or alternatively, secondary to his medications for treatment for hypertensive heart disease. The Veteran was afforded a VA eye examination in December 2011, during which he was diagnosed as having presbyopia and convergence insufficiency. After review of the Veteran's VA treatment records only, the examiner opined that the Veteran's convergence insufficiency was not permanently aggravated by his hypertensive heart disease. The rationale for this opinion included the examiner's personal clinical experiences and medical literature. He could not find any cause and effect relationship between hypertensive heart disease and either presbyopia or convergence insufficiency. In December 2011, the Veteran underwent a QTC examination, in which the examiner filled out a Disability Benefits Questionnaire (DBQ) form. In addition to dry eye syndrome, it appears that the examiner diagnosed nuclear cataracts in both eyes and referenced hypertensive retinopathy. Later in the examination, he found no evidence of retinal problems. As discussed above, the examiner provided a positive opinion with respect to the Veteran's dry eye syndrome. There is no opinion, however, as to the etiology of the nuclear cataracts and possible hypertensive retinopathy that appear to be first diagnosed in 2011. In September 2012, the Veteran's claims file was forwarded to a VA medical expert for an opinion with respect to his claimed eye disability. The expert opined that the Veteran's current presbyopia and convergence insufficiency are less likely than not caused by or aggravated by his May 1988 treatment for a sty or any Desert Storm related eye irritation. In reaching this conclusion, the examiner indicated that presbyopia is a disease of aging and convergence disorder is an eye muscle imbalance whose cause is not fully understood. He stated that the convergence is treated with eye exercises and is not related to external irritants or eye-lid conditions. The examiner also included copies of medical literature in support of his claim. In August 2013, the claims file was forwarded to the medical expert who provided the September 2012 opinion as to the Veteran's claimed bilateral eye disability for a supplemental opinion. Following review of the pertinent evidence contained in the claims file, the expert opined that the Veteran's presbyopia and convergence insufficiency are less likely than not proximately due to or the result of the Veteran's service-connected hypertensive heart disease and renal insufficiency, "to include as secondary to medication taken for these conditions." The expert did not specifically discuss whether the Veteran's hypertensive medications aggravate his eye problems, other than dry eye syndrome. Although these examinations are adequate with respect to the opinions provided therein, the Board finds that some clarification is necessary regarding the impact the Veteran's medications for hypertensive heart disease have on his bilateral eye complaints, other than dry eye syndrome. As such, a supplemental opinion is necessary regarding whether the Veteran's medications for hypertensive heart disease have aggravated his claimed bilateral eye disability. Bilateral Foot Unfortunately, the Veteran's claim for entitlement to service connection for a bilateral foot disability must again be remanded. The Veteran was most recently afforded a VA examination of the feet in July 2013 during which his bilateral pes planus was found to have clearly and unmistakably preexisted service and was not clearly and unmistakably aggravated beyond its natural progression during service. Physical examination revealed no additional foot disabilities and only showed minimal flattening of the plantar surface of the right foot. Unfortunately, the examination did not include an opinion as service connection on a secondary basis. The Veteran has continuously contended that his bilateral foot complaints were caused or aggravated by his service-connected back and knee disabilities. In other words, the medical evidence of record is inadequate and a new opinion must be obtained. Renal Insufficiency In the May 2013 decision, the Board awarded a 30 percent rating for the Veteran's renal insufficiency. The AMC implemented this decision in a May 2013 rating decision, and an effective date of December 28, 2000, was assigned. In a June 2013 letter, the Veteran indicated his disagreement with the May 2013 decision he received in June 2013. The record shows that the Veteran filed a timely notice of disagreement to the AMC's May 2013 rating decision regarding the increased rating assigned for renal failure. To date, however, the agency of original jurisdiction has not issued the Veteran a Statement of the Case (SOC) with respect to the claim. Because the notice of disagreement placed the issue in appellate status, the matter must be remanded for the originating agency to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. A Statement of the Case on the issue of entitlement a disability rating in excess of 30 percent for renal insufficiency should be issued to the Veteran and his representative. The Veteran should be informed of the requirements to perfect an appeal with respect to the new issue. If the Veteran perfects an appeal with respect to this issue, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board. 2. Return the claims file to the September 2012/August 2013 VA medical expert to provide a supplemental opinion regarding the Veteran's claimed bilateral eye disability. If this expert is not available, forward the claims files to a suitable substitute for a supplemental opinion. The expert or examiner should review the claims file, including any pertinent evidence contained in his electronic files and provide the following opinion: Is it at least as likely as not (a 50 percent or better probability) that the Veteran's presbyopia and convergence insufficiency were caused or permanently worsened by the medications used to treat his service-connected heart disability. It is left to the expert/examiner's discretion as to whether the Veteran should be reexamined. The expert/examiner is asked to provide a complete rationale for any opinions reached. 3. Return the claims file to the July 2013 VA examiner for a supplemental opinion regarding the Veteran's bilateral foot disability. If this examiner is not available, forward the claims files to a suitable substitute for a supplemental opinion. The examiner should review the claims file, including any pertinent evidence contained in his electronic files and provide the following opinion: Is it at least as likely as not (a 50 percent or better probability) that the Veteran's bilateral pes planus was permanently worsened (aggravated) by his service-connected low back and bilateral knee disabilities. The examiner should specifically discuss the significance of the Veteran's complaints of burning and tingling in the bilateral feet. It is left to the examiner's discretion as to whether the Veteran should be reexamined. The examiner is asked to provide a complete rationale for any opinions reached. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs