Citation Nr: 1343340	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  08-22 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for chest pain.

3.  Entitlement to service connection for right lower leg pain.

4.  Entitlement to service connection for acid reflux.

5.  Entitlement to service connection for a left side nose disorder.

6.  Entitlement to service connection for flatfeet.

7.  Entitlement to an effective date earlier than July 24, 2009 for the grant of service connection for degenerative disc disease (DDD) of the lumbar spine.

8.  Entitlement to an effective date earlier than July 24, 2009 for the grant of service connection for left lower extremity radiculopathy secondary to DDD of the lumbar spine.

9.  Entitlement to an effective date earlier than January 18, 2007 for the grant of service connection for a right knee sprain/strain with chondromalacia.

10.  Entitlement to an effective date earlier than January 18, 2007 for the grant of service connection for a left knee sprain/strain with chondromalacia.

11.  Entitlement to an effective date earlier than January 18, 2007 for the grant of service connection for tension headaches.

12.  Entitlement to an effective date earlier than January 18, 2007 for the grant of service connection for a depressive disorder, Not Otherwise Specified (NOS).

13.  Entitlement to an effective date earlier than January 18, 2007 for the grant of service connection for granulomatous disease.

14.  Entitlement to an initial rating in excess of 10 percent for DDD of the lumbar spine.

15.  Entitlement to an initial rating in excess of 20 percent for lower extremity radiculopathy.

16.  Entitlement to an initial rating in excess of 10 percent for a right knee sprain/strain with chondromalacia.

17.  Entitlement to an initial rating in excess of 10 percent for a left knee sprain/strain with chondromalacia.

18.  Entitlement to an initial rating in excess of 10 percent for tension headaches.

19.  Entitlement to an initial rating in excess of 10 percent for a depressive disorder, NOS.

20.  Entitlement to an increased rating in excess of 10 percent for a right index finger amputation.

21.  Entitlement to an increased rating in excess of 10 percent for tinnitus.

22.  Entitlement to an initial compensable rating for granulomatous disease.

23.  Entitlement to a compensable rating for a rash.

24.  Entitlement to a compensable rating for tinea pedis.


REPRESENTATION

The Veteran represented by:  The American Legion


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from June 1984 to November 1994 and from July 2003 to July 2005, with additional Reserve service.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the RO in Jackson, Mississippi.  The service connection issues, except for flatfeet and acid reflux, arise from a June 2007 rating decision, which, in relevant part, denied those issues.  The flatfeet and acid reflux issues arise from April 2008 and September 2010 rating decisions, respectively.  The effective date and initial rating issues for a depressive disorder, NOS, arises from an October 2010 rating decision granting service connection.  The effective date and initial rating issues for DDD of the lumbar spine, left lower extremity radiculopathy, right and left knee sprain/strain with chondromalacia, tension headaches, and granulomatous disease arise from a March 2012 rating decision granting service connection and assigning effective dates and initial ratings.  The increased rating issues arise from a January 2008 rating decision which denied ratings in excess of those in effect.  

During the pendency of the appeal, an earlier effective date from July 24, 2009 percent to January 18, 2007 was granted for service connection for a depressive disorder NOS in a January 2011 rating decision.  

Evidence has been received subsequent to the final consideration of the claim by the RO.  The Veteran, through his representative, has waived RO consideration of that evidence.  See 38 C.F.R. § 20.1304(c) (2013).  The Veteran also requested a hearing before the Board in a December 2008 VA Form 9.  His representative reported that the Veteran has withdrawn that request in a November 2013 statement.  The Board will proceed to consider the appeal.  

The issues of service connection for a left side nose disorder and flatfeet and increased initial ratings for DDD of the lumbar spine, left lower extremity radiculopathy, depressive disorder NOS, left knee strain/sprain with chondromalacia, and granulomatous disease 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.  The Veteran has been diagnosed by a VA psychologist as having PTSD due to his fear of hostile military or terrorist activity arising from his active service in Iraq.

2.  The Veteran's atypical chest pain is a symptom of service-connected granulomatous disease.

3.  The Veteran has radiating pain in his right leg due to his service-connected DDD of the lumbar spine, but not a distinctly diagnosed or undiagnosed illness disability of the right leg.

4.  The Veteran's GERD was not present during service and is not related to any incident, injury, or disease occurring during service.  

5.  The Veteran's November 1994 service connection claims for back and bilateral knee disabilities were previously, finally denied in a February 1995 rating decision.

6.  The Veteran's August 2005 service connection claims for a back disability and left leg numbness was previously, finally denied in an August 2006 rating decision.

7.  Newly associated service department records were associated with the claims file in September 2005 and March 2007 but did not exist at the time of the February 1995 rating decision.  

8.  The Veteran's petition to reopen claims for service connection for DDD of the lumbar spine and left lower extremity radiculopathy were received on January 18, 2007.  

9.  The earliest pending claim for service connection for a right knee disability was received by VA on January 18, 2007.

10.  The earliest pending claim for service connection for a left knee disability was received by VA on August 22, 2005, within one year of separation from service on July 23, 2005.

11.  The Veteran's claim for service connection for headaches prior to January 18, 2007 had been previously, finally denied in an August 2006 rating decision.

12.  The first claim for service connection for headaches received after the prior, final August 2006 rating decision was received on January 18, 2007.  

13.  VA received the Veteran's first claims for service connection for depressive disorder, NOS, and granulomatous disease on January 18, 2007. 

14.  The Veteran's right knee strain/sprain with chondromalacia has not been productive of ankylosis, instability, patellar subluxation, a semilunar cartilage disorder, flexion limited to 45 degrees or extension limited to ten degrees even when considering painful motion, impairment of the tibia or fibula, or genu recurvatum at any time during the period on appeal.

15.  The Veteran's tension headaches have not been productive of characteristic prostrating attacks very frequently or at least once a month at any time during the period on appeal.  

16.  The Veteran has been in receipt of the schedular maximum disability rating for a right index finger amputation at the distal joint throughout the period on appeal.

18.  The Veteran has been in receipt of the schedular maximum disability rating for tinnitus throughout the period on appeal.

19.  The Veteran's rash has not involved at least 5 percent of his total body area, is not in an exposed area, and has not required the use of systemic therapy throughout the period on appeal.

20.  The Veteran's tinea pedis has been productive of a predominant disability of dermatitis, has not involved at least 5 percent of his total body area, has not been in an exposed area, and has not required the use of systemic therapy throughout the period on appeal.


CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

2.  The criteria for service connection for chest pain have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013).

3.  The criteria for service connection for right leg pain have not been met.  38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2013).

4.  The criteria for service connection for acid reflux have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

5.  The criteria for an effective date of January 18, 2007, but no earlier for service connection for DDD of the lumbar spine are met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

6.  The criteria for an effective date of January 18, 2007, but no earlier for service connection for left lower extremity radiculopathy are met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

7.  The criteria for an effective date earlier than January 18, 2007, for service connection for right knee strain/sprain with chondromalacia are not met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

8.  The criteria for an effective date of July 24, 2005, for service connection for left knee strain/sprain with chondromalacia are met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

9.  The criteria for an effective date earlier than January 18, 2007, for service connection for tension headaches are not met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

10.  The criteria for an effective date earlier than January 18, 2007, for service connection for a depressive disorder NOS are not met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

11.  The criteria for an effective date earlier than January 18, 2007, for service connection for granulomatous disease are not met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013).

12.  The criteria for an initial evaluation greater than 10 percent for right knee sprain/strain with chondromalacia are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, Diagnostic Code (DC) 5260 (2013).

13.  The criteria for an initial evaluation greater than 10 percent for tension headaches are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.124a, DC 8100 (2013).

14.  The criteria for an evaluation greater than 10 percent for a right index finger amputation at the distal joint are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, DC 5153 (2013).

15.  The criteria for an evaluation greater than 10 percent for tinnitus are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.87, DC 6260 (2013).

16.  The criteria for a compensable evaluation for a rash are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.118, DC 7806 (2013).

17.  The criteria for a compensable evaluation for tinea pedis are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.118, DCs 7800-7806, 7813 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection, earlier effective dates, and increased ratings.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326.

The claims of service connection for PTSD and chest pain have been granted, as discussed below.  As such, the Board finds that any error related to the duties to notify or assist on those claims is moot.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

The appeals as to earlier effective dates for service connection have been resolved based on undisputed facts of the record.  The Veteran did not separate from service for a disability.  See McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008).  As discussed below, the Board has awarded earlier effective dates for the back, left lower extremity radiculopathy, and left knee based on the first received claims for service connection after the most recent final denial of service connection for those disabilities.  The Board has found that the right knee and headache effective dates are based on the first claims for service connection received after the prior final denials of those issues.  The Board has also found that the effective dates of service connection for a depressive disorder NOS and granulomatous disease were based on the first received claims for service connection for a psychiatric disability and lung disability.  No amount of notice or assistance in obtaining either records or medical examinations or opinions can alter the outcome of this case.  In addition, the Veteran was provided notice as to how VA determines effective dates in February 2007, August 2007 and November 2009 notices and the effective date issues were readjudicate after that notice in a March 2012 statement of the case and an April 2013 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370   (2006).

The duty to notify has been satisfied as to the claims for service connection for right leg pain and acid reflux.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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).  A February 2007 letter fully satisfied the duty to notify provisions prior to initial adjudication of the service connection claim for right leg pain in June 2007.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  An October 2009 letter fully satisfied the duty to notify provisions prior to initial adjudication of the service connection claim for acid reflux in September 2010.  See id.  

The initial ratings for the right knee and headache disabilities arise from granted claims of service connection.  A February 2007 letter fully satisfied the duty to notify provisions as to the right knee and tension headache service connection claims prior to initial adjudication of the Veteran's claims in June 2007.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Dunlap v. Nicholson, 21 Vet. App. 112 (2006) (requiring notice consistent with service connection claims in initial ratings appeals).  

The right index finger amputation, tinnitus, skin rash, and tinea pedis ratings arise from claims for increased ratings.  An October 2007 letter fully satisfied the duty to notify provisions, including notice of the degree of disability prior to initial adjudication of the Veteran's claims in January 2008.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010). 

The Board also concludes VA's duty to assist in obtaining records has been satisfied.  The Veteran's service and VA treatment records are in the file.  The RO requested copies of the Veteran's Social Security Administration (SSA) records in September 2008.  The SSA indicated that no medical records could be located in November 2008.  The RO notified the Veteran of the failure to obtain these records in a July 2009 Supplemental Statement of the Case listing a formal finding of unavailability for SSA records and restating the obligation to submit evidence in 38 C.F.R. § 3.159.  The Board finds that the RO has made all reasonable attempts to obtain those records, further development would be fruitless.  The Veteran has at no time referenced other outstanding records that he wanted VA to obtain or that he felt were relevant to the service connection or increased and initial ratings claims addressed in this decision.

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, as defined by law.  38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  If VA provides a claimant with an examination, the examination must be adequate.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  

The Veteran was afforded a January 2012 VA medical examination and opinion regarding his right leg pain in the course of evaluating his spine.  The examiner explained that, although the Veteran had radiating pain, he did not have objective neurological abnormalities of the right leg.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history and listened to the Veteran's assertions.  The examiner laid a factual foundation and reasoned basis for the conclusions that were reached.  Therefore, the Board finds that the examination is adequate.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).  

The Veteran was afforded a January 2012 VA medical examination to obtain an opinion as to whether his GERD was the result of service.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history and listened to the Veteran's assertions.  The examiner laid a factual foundation and reasoned basis for the conclusions that were reached.  Therefore, the Board finds that the examination is adequate.  See Nieves-Rodriguez, 22 Vet. App. at 300.  

For the disability rating appeals, the RO provided the Veteran appropriate VA examinations in December 2007 for tinnitus, May 2009 and January 2012 for the right index finger, and January 2012 for the headaches, skin rash and tinea pedis disabilities.  The Veteran has not reported receiving any recent treatment specifically for these condition (other than at VA treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings as to any of the disabilities decided by the Board.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined.  The examination reports provide sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate to rate each disability.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also VAOPGCPREC 11-95.  The December 2007, May 2009, and January 2012 VA examination reports are thorough and supported by VA outpatient treatment records.  The examination in this case is an adequate basis on which to adjudicate the claim.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(d)(1).  The Southwest Asia Theater of operations includes Iraq.  38 C.F.R. § 3.317(d)(2).  The Veteran had service in Iraq in 2004.  

PTSD, chest pain, right leg pain, and acid reflux are not classified as "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  

The Board has thoroughly reviewed all the evidence in the Veteran's claims folders.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  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, 128 (2000).  

The Board must assess the competency, credibility and probative weight of the relevant evidence, both lay and medical, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran does not have the requisite medical experience, knowledge or training to qualify as a medical expert.  Accordingly, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  He may provide lay evidence.  Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

Service Connection for PTSD

The record is in disagreement as to whether the Veteran has a current disability of PTSD.  The Veteran has sought treatment through a Vet Center.  An October 2009 letter indicates that the Veteran has symptoms which have been diagnosed as PTSD.  This letter was signed by a social worker.  The Veteran's VA treatment records list both PTSD and major depressive disorder among his active diagnoses in October 2009.  The Veteran was seen for an October 2010 VA examination, in which the examiner concluded that the Veteran did not have symptoms meeting the criteria for PTSD, but did meet the criteria for a depressive disorder, NOS.  

The Board resolves reasonable doubt in favor of the Veteran and finds that he has a current disability of PTSD.  Both the diagnoses for and against were made by competent medical professionals on direct interview and examination.  Both evaluated the Veteran under the criteria of the DSM-IV.  See 38 C.F.R. § 4.125 (2013).  The difference is a disagreement in medical judgment.  As a result, the Board finds that the Veteran has a current disability of PTSD.  38 C.F.R. § 3.102.

The Veteran submitted an April 2007 statement indicating that he had several stressors while serving in Iraq in 2004.  He reported that a plane he was flying in came under attack and he feared for his life.  He reported that an alert alarm went off while he was leaving the Base Exchange and that he moved his vehicle to a covered location.  He heard a loud explosion and discovered later that the base exchange had been bombed.  He also reported incoming mortar fire.  The Veteran is generally competent and credible to report these stressors. 

An August 2009 VA psychologist's note indicates that the Veteran reported stressors occurring during his Iraq deployment in 2004.  The Veteran stated that he had received incoming enemy fire while flying in a plane, while in a convoy, and was stationed at a base that came under mortar fire.  The psychologist diagnosed PTSD on the basis of these stressors.

As discussed above, the Veteran's claimed stressors in this case are related to his fear of hostile military or terrorist activity.  Here, the Veteran is competent to describe his in-service stressors, and his claimed stressors are consistent with the places, types, and circumstances of the Veteran's service in Iraq.  There is no clear and convincing evidence to the contrary; therefore, the Board finds that the Veteran's lay testimony alone is sufficient to establish the occurrence of his claimed in-service stressors.  See 38 C.F.R. § 3.304(f)(3).  A VA psychologist has found that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and that his PTSD symptoms are related to his claimed stressors.  Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran has PTSD that is causally related to his fear of hostile military or terrorist activity during service.  Thus, service connection for PTSD is warranted.  38 C.F.R. § 3.304(f).  

Service Connection for Chest Pain

Service connection may only be awarded for pain if a pathology to which the symptoms can be attributed has been identified; otherwise, there is no basis to find a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("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."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  

The Veteran is service-connected for granulomatous disease that occurred during his first period of active service between 1984 and 1994.  His service treatment records show that he was seen for chest pain in April 1985, January 1989, July and November 1990, and June 1992, and reported chest pain during his separation from service physical examination in August 1994.  These were generally found to be costochondritis or muscular pain, except for possible indigestion in June 1992.  The Veteran's lungs, chest, and heart were found to be clinically normal in October 1999 and October 2004, though he did complain of chest pain in 2004.  His VA treatment records also show a February 2009 complaint of chest pain, which was found to be costochondritis.  

The Veteran was seen for a January 2012 VA examination.  The examiner reviewed the Veteran's claims file and service treatment records.  The examiner concluded that the Veteran had atypical chest pain that was as likely as not due to his service-connected granulomatous disease.

Here, the Veteran has chest pain attributable to the underlying granulomatous disease pathology.  The Board also notes that the granulomatous disease is rated under DC 6834, which does not include chest pain among the diagnostic criteria.  In light of the foregoing, the Board finds that the Veteran's chest pain is attributable to an underlying service-connected disability.  Service connection is warranted on a secondary basis.  See 38 C.F.R. § 3.310.

As such, the Board finds that the evidence is at least in equipoise in favor of the Veteran's claim for service connection for chest pain.  Consequently, the benefit-of-the-doubt rule applies, and the claim must be granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


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Service Connection for Right Leg Pain

For the reasons that follow, the Board finds that the Veteran's right leg pain is a manifestation of his service-connected DDD of the lumbar spine and not a separate disability.  The Board concludes that service connection is not warranted.  

The Veteran was seen for bilateral leg pain in January 2005.  A June 2005 evaluation, the Veteran reported low back pain radiating to both legs for the previous year.  He did not receive a diagnosis of a right leg disorder.

The Veteran's complaints of pain radiating into his right leg were evaluated during the January 2012 VA examination.  The examiner concluded that the Veteran did have radiculopathy of the left leg, but not of the right.  The examiner did not diagnose a right leg disability.  

The Veteran is service-connected for DDD of the lumbar spine.  The disability rating is assigned under DC 5237.  The ratings criteria for DC 5237 are listed in the General Ratings Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, DCs 5235-5243.  These criteria include pain, whether or not it radiates.  Id.  The Board finds that, although the Veteran is competent and credible to report radiating pain in his right leg, the pain is a manifestation of an already service-connected disability.  Service connection cannot be awarded twice for the same disability.  The issue of the appropriate level of compensation is remanded below.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's right leg pain claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


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Service Connection for Acid Reflux

The Veteran was seen for a January 2012 VA examination in connection with this claim.  He was diagnosed with gastroesophageal reflux disease (GERD) at that time.  The current disability is established.

The Veteran has not provided a clear statement regarding why he believes that his acid reflux is related to service.  The Veteran filed a July 2009 claim for service connection for acid reflux.  He stated "I feel that since I was treated for Acid Reflux [sic]."  There is no explanation in any of the documents he has submitted since that time.  

The Veteran was interviewed in the course of the January 2012 VA examination.  The examiner recorded that the Veteran reported indigestion began after six months deployment to Iraq in 2004.  The examiner also listed an initial diagnosis of GERD in 2004.  

The Veteran's service treatment records are negative for any complaint, treatment or diagnosis of acid reflux, GERD, indigestion, heartburn or other similar symptoms.  

Although the Veteran is competent to report symptoms of heartburn and indigestion, he must also do credibly.  The Veteran's VA treatment records disagree with his account of onset of indigestion in 2004.  

After his discharge from service, the Veteran underwent an April 2006 VA General Medical physical examination.  The report noted that his gastrointestinal and abdominal exam was within normal limits with no complaints nor noted abnormalities or diagnoses.  A January 2007 treatment record shows the Veteran underwent colonoscopy and completed a pertinent history form prior to the procedure.  He specifically denied any problems or history of reflux.  In February 2007, he was evaluated for complaints of chest pains and specifically denied any acid reflux.  In July 2007, the Veteran was seen for complaints of persistent throat discomfort.  He was noted to suffer from gastritis but was non-compliant with his prescribed Prilosec.  He denied any symptoms of heartburn, abdominal pain, hematemesis, hematochezia or dysphagia.  It was felt that his chronic sore throat was probably secondary to night reflux.  He was prescribed Omeprazole with the notation to consider Upper GI series if symptoms persisted.  In December 2007, the veteran reported recurrent epigastric pain and heartburn. He underwent endoscopy which was normal.  It was noted that he had normal CT scan and ultrasound of the abdomen.  It was noted that the Omeprazole had significantly helped with heartburn and pain, but he still had crampy abdominal pain.  In June 2008, he underwent gastric emptying study which showed gastroparesis.  

The Veteran's account of reflux symptoms occurring during service is not credible in light of his specific denials of gastrointestinal complaints in April 2006 and January and February 2007.  The first notation supporting the presence of reflux occurred in July 2007, two years after separation from service.  The Veteran's statement that he began having reflux symptoms during service in 2004 is not entitled to significant probative weight.  

The Board places much greater probative weight on the Veteran's service and VA treatment records and finds that the preponderance of the evidence shows that the Veteran did not have acid reflux or GERD during service.  There is no incident, injury, or disease occurring during service to which the Veteran alleges the GERD may be related.  The Board concludes that service connection is not warranted on a direct basis.

The Veteran did have service in Iraq and is a "Persian Gulf War veteran."  As his complaints have been diagnosed as GERD and are not undiagnosable, the presumptive provisions of 38 C.F.R. § 3.317 do not apply.  Service connection is not available on a presumptive basis either.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's service connection for acid reflux claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Earlier Effective Dates for Service Connection Laws and Regulations

The effective date of an award of service connection based on a claim received more than one year after a veteran's discharge from service will be the later of the date of receipt of claim or the date entitlement arose.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a).  The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on a reopened claim will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R. § 3.400 (emphasis added).  A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.  A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).

To prevent finality from attaching to a denial of service connection, a veteran must file a Notice of Disagreement or new and material evidence must be received within one year of the notice of the adverse rating decision such that VA must reconsider the claim.  Young v. Shinseki, 22 Vet. App. 461, 466 (2009).

In the case of a petition to reopen a previously denied claim for service connection, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  38 C.F.R. § 3.156(c).  

Factual Background

The Veteran seeks earlier effective dates for the grants of service connection for DDD of the lumbar spine, left lower extremity radiculopathy, bilateral knee sprain/strain with chondromalacia, tension headaches, depressive disorder NOS, and granulomatous disease.  Given the overlapping facts, the Board presents a chronology before turning to the merits of the individual claims.  

The Veteran filed an original claim for service connection in November 1994.  The Veteran listed back and bilateral knee pain disabilities, among others.  Service connection was denied for both back and bilateral knee pain in a February 1995 rating decision.  Notice of the decision and his procedural and appellate rights was sent to the Veteran in February 1995.  No response or evidence was received within one year of that notice.  The February 1995 rating decision became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  

The Veteran filed an increased rating claim for tinnitus in 2002.  No mention of other disabilities was made.  

The Veteran filed another set of claims for service connection in August 2005 following separation from his second period of active service, including lower back strain, numbness of both legs due to the back, right shoulder, headaches, rash, foot condition and left knee injury.  Additional service department records consisting of service treatment records from the Veteran's 2003 to 2005 period of service were associated with the claims file in September 2005.  These claims were denied in an August 2006 rating decision.  The Veteran was notified of the decision and his procedural and appellate rights in August 2006.  

The Veteran did not file a statement to the effect that he sought appellate review of the August 2006 rating decision within one year of notice of the decision.  

Additional evidence comprised of VA treatment records was associated with the claims file in the year following notice of the August 2006 rating decision.  Some of the VA treatment records consisted of x-ray studies conducted in conjunction with an April 2006 VA examination, records of which were considered in the August 2006 rating decision.  Those records are duplicative and not new.  The remaining VA treatment records do not address the lower back, numbness of both legs due to the back, or headaches claims.  The Veteran received treatment for his left knee in November 2006 and January 2007.  

The Veteran filed a third set of claims for service connection, which was received by VA on January 18, 2007.  The Veteran listed his knees again, bilateral lower leg pain, lung condition, a nose disorder, headaches, and irritability, which he called PTSD.  The January 2007 claims for service connection were taken as petitions to reopen previously disallowed claims by the RO.  In October 2010, January 2011 and March 2012 rating action, the RO granted service connection for bilateral knee, headache, granulomatous disease, and depression disabilities and assigned January 18, 2007, as the effective date for service connection for those disabilities.  

Another set of service department records comprised of the Veteran's service personnel records was associated with the claims file in March 2007.  

The Veteran filed another set of service connection claims in July 2009, including a claim for a back disability with sciatica.  The RO granted service connection for lumbar spine DDD and left lower extremity radiculopathy, effective July 24, 2009.

Effective Date of Service Connection for Lumbar Spine DDD and Left Lower Extremity Radiculopathy

The Board finds that an effective date of January 18, 2007, but no earlier is warranted for the grant of service connection for lumbar spine DDD and left lower extremity radiculopathy.  

As discussed above, the Veteran's original claims for a back disability and numbness of both legs was denied in a February 1995 rating decision which is final.  He has not alleged that the rating decision contains clear and unmistakable error.  

The Veteran's next claims for service connection for a back disability and numbness of both legs were denied in an August 2006 rating decision.  VA did not receive a statement from the Veteran expressing disagreement and a desire for appellate review within one year of the notice of the August 2006 rating decision.  The January 2007 claims for service connection could be taken as disagreement, but not as a desire for appellate review.  The receipt of an application to reopen is not tantamount to a Notice of Disagreement.  See Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012).  In the absence of an expression of the desire for appellate review, the Board finds that the Veteran did not file a Notice of Disagreement within one year of the August 2006 rating decision notice.  Thus, the January 2007 claims are not a Notice of Disagreement.  See 38 C.F.R. § 20.201 (2013).  

New evidence and material was not received within one year of notice of the August 2006 rating decision.  38 C.F.R. § 3.156(b).  Some VA treatment records were received, but did not address the back or numbness in the legs.  The Veteran was treated for left knee pain in November 2006 and January 2007, but these records show knee disorders, not left lower extremity radiculopathy.  The Veteran had also claimed a left knee disability which was denied in the August 2006 rating decision.  The Veteran's left knee is separately service-connected from the left lower extremity disability.  Distinctly and properly diagnosable disabilities are distinct disability claims.  See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008).  The Board finds that the November 2006 and January 2007 VA treatment records were not material to the back or left lower extremity claims.  The last remaining evidence received within one year of the August 2006 rating decision was a set of service personnel records.  The August 2006 rating decision denied the back and leg numbness claims on the basis of a lack of a current disability.  These make no mention of the back or left lower extremity disabilities.  They do not tend to support any allegation regarding the back or left lower extremity that the Veteran has ever made.  Thus, they are not material to the grounds of the August 2006 denial.  Finally, the January 2007 claims were unaccompanied by any lay or medical evidence.  The receipt of an application to reopen is not tantamount to receipt of new and material evidence.  Akers, 673 F.3d at 1358.  The Board finds that new evidence and material was not received within one year of notice of the August 2006 rating decision.  38 C.F.R. § 3.156(b).  Young, 22 Vet. App. at 466.

The Board must also consider whether reconsideration is appropriate.  In the case of a petition to reopen a previously denied claim for service connection, the pertinent regulations governing new and material evidence require VA to reconsider previously denied claims on the merits whenever relevant service records unavailable at the time of the last final rating decision are submitted.  38 C.F.R. § 3.156(c); Vigil v. Peake, 22 Vet. App. 63, 64-65 (2008).  The Board notes that 38 C.F.R. § 3.156 was revised effective October 2006, but the outcomes of these issues are the same regardless of the version applied.  The first set of additional service department records was received in September 2005 and was part of the record at the time of the August 2006 rating decision.  Reconsideration, if appropriate, would have been conducted by the RO at that time for the first set of records.  Accordingly, the finality of the August 2006 rating decision cannot be vitiated by the service department records received in September 2005.  

The set of service personnel records received in March 2007 also do not vitiate finality.  These records were not used to reopen, conduct development under the duty to assist, or award service connection for either lumbar spine DDD or left lower extremity radiculopathy.  Relevancy of the additional service department records is a requirement for reconsideration under the current or prior 38 C.F.R. § 3.156(c).  Vigil, 22 Vet. App. at 64 (discussing the effect of the 38 C.F.R. § 3.156(c) revision).  The Board finds that the finality of the August 2006 rating decision is not vitiated by the service department records received in March 2007.  

The Veteran's January 18, 2007 claim for left leg pain was denied in a June 2007 rating decision.  He perfected an appeal of that issue before service connection was granted in a March 2012 rating decision under the diagnosis of left lower extremity radiculopathy secondary to service-connected lumbar spine DDD.  The Veteran did not specifically claim service connection for a back disability in January 2007.  Instead, the RO relied on a July 2009 claim for service connection for a back disability to award direct service connection, then determined that entitlement to secondary service connection did not arise earlier than the date of service connection for the primary disability.  

The RO did not apply the correct rule in these circumstances.  If a claimant files a claim for disability compensation for a condition, the claim remains open and not finally adjudicated, and the cause of that condition ultimately is determined to be a disease or disability incurred in or aggravated by service, then the effective date for both the secondarily service-connected condition and the service-connected causal disease or disability can be as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits.  DeLisio v. Shinseki, 25 Vet. App. 45, 54-55 (2011).  Here, the Veteran filed for left leg numbness in January 2007, the claim remained open and on appeal, and the cause was ultimately determined to be another disability causally related to service.  Entitlement to direct service connection generally arises during service.  Akers, at 1359.  Thus, the January 18, 2007 claim for left leg numbness would have been the date of claim for lumbar spine DDD.  The Board concludes that an effective date of January 18, 2007, but no earlier, is warranted for lumbar spine DDD.  The Board also concludes that the date entitlement arose for the left lower extremity radiculopathy was at least as early as the January 18, 2007 date of claim.  The Board concludes that an effective date of January 18, 2007, but no earlier, is warranted for left lower extremity radiculopathy.  

As such, the Board finds that the evidence is at least in equipoise in favor of the Veteran's earlier effective date claims for lumbar spine DDD and left lower extremity radiculopathy as early as January 18, 2007.  The Board finds that the preponderance of the evidence is against the Veteran's effective date claims for lumbar spine DDD and left lower extremity radiculopathy prior to January 18, 2007.  Consequently, the benefit-of-the-doubt rule applies only in awarding effective dates of January 18, 2007, and the claims must be granted as of January 18, 2007, and denied prior to that date.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Effective Date for Service Connection for Bilateral Knee Strain/Sprain with Chondromalacia

The current effective date for service connection for bilateral knee disabilities is January 18, 2007, based on the receipt of a petition to reopen previously denied claims.  

As noted, the Veteran's original service connection claim for bilateral knee disabilities was denied in a February 1995 rating decision which is now final.  The Veteran filed a petition to reopen the claim for service connection for the left knee in August 2005.  That claim was denied in the August 2006 rating decision.  The right knee disability was not addressed in the August 2006 rating decision.  The only claim prior to January 18, 2007 as to the right knee was adjudicated in the February 1995 rating decision.  

The VA treatment records reflect that the Veteran was seen in November 2006 and January 2007 for left knee pain.  The August 2006 rating decision continued the denial of service connection for the left knee because the Veteran had complaints of knee pain which did not result in a clinical diagnosis during an April 2006 VA examination.  In November 2006, the physical examination was normal and the assessment was persistent left knee pain and questionable small Baker's cyst.  In January 2007, the assessment was pain not consistent with a ligamentous injury.  The examiner thought that the Veteran at most could have had a minor meniscal tear.  

The August 2006 rating decision denied service connection on the grounds that an April 2006 VA examination report stated that the left knee was clinically normal and that a left knee condition was not incurred in or caused by service.  The November 2006 and January 2007 findings suggest possible abnormalities of the left knee.  These VA treatment records were placed in the claims file in February 2007.  The Board finds that the additional VA treatment records were new, address the grounds of the August 2006 denial and raise a reasonable possibility of substantiating the left knee claim.  They were clearly received by the adjudicator within one year of the August 2006 rating decision.  The Board concludes that the August 2006 rating decision did not become final as to the left knee disability claim.  38 C.F.R. § 3.156(b).  Thus, the earliest pending claim for service connection for the left knee was received by VA on August 22, 2005.  The Veteran separated from a period of active duty service on July 23, 2005.  

Finality may be vitiated in certain circumstances where additional, relevant service department records, which existed but were not of record at the time of the prior denial, are received.  38 C.F.R. § 3.156(c).  The record reflects that additional service department records were associated with the claims file twice, following a September 2005 records search conducted by the RO and reflected in the list of evidence considered in the August 2006 rating decision and in March 2007 following the filing of service connection for PTSD.  Because the Board has found that the August 2006 rating decision did not become final as to the left knee disability, the service department records received in September 2005 and those received in March 2007 may vitiate the finality of the February 1995 rating decision as to both the right and left knees.  

The Board concludes first that the additional service treatment records do not vitiate finality of the February 1995 rating decision.  The service treatment records received in September 2005 contained 1996 to 2005 records covering the Veteran's period of Reserve service and his second period of active service from January 2003 to July 2005.  These records did not exist at the time of the February 1995 rating decision.  Accordingly, these records were not "unavailable" at the time of the February 1995 rating decision.  Reconsideration of the November 1994 bilateral knee claims based on the receipt of additional service treatment records is not warranted.  See Mayhue v. Shinseki, 24 Vet. App. 273, 277-78 (2011) (discussing the term "unavailable" in the context of records extant at the time of the prior rating action).  

The set of service personnel records received in March 2007 also do not vitiate finality.  These records were not used to reopen, conduct development under the duty to assist, or award service connection for either right or left knee strain/sprain with chondromalacia.  They make no reference to the Veteran's health.  Relevancy of the additional service department records is a requirement for reconsideration under the current or prior 38 C.F.R. § 3.156(c).  Vigil, 22 Vet. App. at 64 (discussing the effect of the 38 C.F.R. § 3.156(c) revision).  The Board finds that the finality of the February 1995 rating decision is not vitiated as to the bilateral knee disability claims by the newly associated service personnel records.  
The Board concludes that reconsideration of the 1994 claim is not warranted.  

In light of the foregoing, the Board finds that the earliest pending claim for service connection for the left knee was received by VA in August 2005.  The left knee disability was awarded service connection on a direct basis, in part based on the June 2005 complaint of knee pain; therefore, entitlement arose during service.  Akers.  Because the August 2005 claim was received within one year of the Veteran's separation from the period of active service in which the left knee disability was incurred, the Board finds that an effective date of July 24, 2005, is warranted.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r).The earliest pending claim for service connection for the right knee was received on January 18, 2007.  This award was also based in part on the June 2005 complaint of knee pain; therefore, entitlement arose during service.  Akers.  Because the right knee disability was not claimed within one year of service, the Board finds that an effective date prior to January 18, 2007 is not warranted.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r).

In sum, the Board finds that the evidence is at least in equipoise in favor of the Veteran's earlier effective date claim for left knee strain/sprain with chondromalacia and an effective date for service connection of July 24, 2005 is warranted.  The Board finds that the preponderance of the evidence is against an earlier effective date than January 18, 2007 for the right knee disability.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Effective Date for Service Connection for Headaches

The Veteran filed an original claim for service connection for headaches in August 2005.  That claim was denied in the August 2006 rating decision.  The Veteran did not express disagreement with that rating decision within one year of notice.  As discussed, his January 2007 petition to reopen the claim is not tantamount to a Notice of Disagreement.  See Akers.  No lay or medical evidence was received within one year of the August 2006 rating decision that refers to headaches.  Although additional service department records were received in March 2007, these were personnel records that did not reference headaches in any way.  Thus, they were not material.  The August 2006 rating decision became final as to service connection for headaches.  38 C.F.R. §§ 3.156(b); 20.201.

Reconsideration of the headache claim is not warranted despite the receipt of additional service department records.  38 C.F.R. § 3.156(c).  As explained, the additional service department records must be relevant.  See Vigil; see also Mayhue.  The service personnel records do not address headaches or make any reference to any contention that supported service connection for headaches.  The Board finds that the reconsideration of the August 2005 claim is not warranted.  See Mayhue.  

The January 18, 2007 claim was the first to be received after the August 2006 rating decision and service connection awarded following receipt of new and material evidence.  The January 2007 claim was received more than one year after the Veteran's July 2005 separation from service.  The Veteran has not alleged that clear and unmistakable error exists in the August 2006 rating decision.  The Board finds that the date of claim is January 18, 2007.  Given that an effective date is to be assigned based on the later of the date of claim or the date entitlement arose, an earlier effective date could not be assigned even if entitlement arose prior to January 18, 2007.  The Board concludes that an earlier effective date for headaches is not warranted.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r).

Effective Date for Service connection for Depressive Disorder and Granulomatous Disease

Service connection has been awarded for a depressive disorder NOS and granulomatous disease has been awarded with a common effective date of January 18, 2007.  Prior to January 18, 2007, the Veteran had never filed a service connection claim for an acquired psychiatric disability or a lung disability.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998).  There is no provision in the law for awarding an earlier effective date based on the assertion that the disability existed before the Veteran filed the claim.  The record does not include any communication from the Veteran or a representative received prior to January 18, 2007, that may reasonably be construed as an indication he was seeking service connection for an acquired psychiatric disability or a lung disability.  The January 18, 2007 claim was received more than one year after either of the Veteran's periods of active service from June 1984 to November 1994 and from July 2003 to July 2005.  The Board concludes that an earlier effective date than January 18, 2007 for a depressive disorder NOS and granulomatous disease is not warranted.

In light of this fact, the Board concludes that an earlier effective date is not warranted in this case under VA regulations governing effective dates for awards based on original claims for service connection for a depressive disorder NOS or granulomatous disease.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).

Disability Ratings

The Veteran contends that he is entitled to ratings in excess of those assigned for a right knee strain/sprain with chondromalacia, tension headaches, right index finger amputation at the distal joint, tinnitus, a rash, and tinea pedis.  For the reasons that follow, the Board concludes that increased ratings are not warranted.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Board has also considered whether a referral for extraschedular rating is warranted for each disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.

Disability Ratings for Right Knee Sprain/Strain with Chondromalacia

The Veteran's right knee disability was rated as 10 percent disabling under DC 5260 by the RO.  The January 2012 VA examination report indicated that the Veteran had strain/sprain, osteoarthritis, and chondromalacia.  

DC 5003 specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5003.

The criteria for ratings on limitation of motion of the knee are in two groups, limitation of flexion and limitation of extension.  Limitation of flexion of a leg warrants a compensable evaluation if limited to 45 degrees or less.  See 38 C.F.R. § 4.71a, DC 5260.  Limitation of extension of a leg warrants a compensable evaluation if limited to 10 degrees or more.  See 38 C.F.R. § 4.71a, DC 5261.  Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint.  VAOPGCPREC 09-04 (Sept. 17, 2004).

The only goniometer measurements of the Veteran's right knee motion are contained in the January 2012 VA examination report.  At that time, he had flexion to 130 degrees, with pain beginning at 130 degrees.  He had extension to zero degrees without painful motion in extension.  The Veteran did not have additional limitation of motion following repetitive use testing.  The examiner noted that the Veteran did have pain on movement.  

Given that this is the only range of motion testing using a goniometer of record, the Board finds that the Veteran's right flexion has been in excess of 45 degrees and his extension has been in excess of 10 degrees throughout the period on appeal.  Compensable ratings are not warranted under DC 5260 or 5261.  The Veteran's 10 percent evaluation in this case, was assigned based on the presence of painful motion in the right knee, to include consideration of his functional loss due to pain or painful motion where limitation of motion would otherwise be noncompensable. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  A rating of 10 percent under DC 5003 would rely on the same manifestations of limitation of motion as the 10 percent evaluation in effect under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  As such, a separate 10 percent rating under DC 5003 would constitute pyramiding.  The Board concludes that ratings in excess of 10 percent are not warranted under DC 5003, 5260, or 5261.  

Arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability.  See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997).  

The Veteran's right knee disability includes patellar chondromalacia.  The DC which addresses the patella is DC 5257, for knee instability and patellar subluxation.  38 C.F.R. § 4.71a.  Subluxation of the patella is "incomplete or partial dislocation of the knee cap."  Rykhus v. Brown, 6 Vet. App. 354, 358 (1993).  Compensable ratings are awarded based on "slight," "moderate," and "severe" instability or subluxation.  38 C.F.R. § 4.71a, DC 5257.  

The Veteran's right knee was tested for instability and subluxation at the January 2012 VA examination.  His knee was stable in Lachman, posterior, and varus/valgus pressure tests.  No evidence or history of patellar subluxation was found.  The Veteran has not alleged instability in the knee or dislocations during the course of this claim.  The Board finds that a rating for instability or patellar subluxation is not warranted.  

Additional Diagnostic Codes provide for additional ratings for disabilities of the knees depending on the symptoms shown.  Since the record does not show that the Veteran's right knee disability involves ankylosis, semilunar cartilage impairment, impairment of the tibia and fibula, or genu recurvatum, additional ratings for the Veteran's right knee disability are not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, or 5263.

The schedular ratings criteria for the Veteran's right knee strain/sprain with chondromalacia are not inadequate.  The Veteran has sought treatment for right knee pain in February and March 2007.  The Veteran reported flare-ups of pain three to four times a week lasting for an hour.  He reported that he could not walk more than 40 minutes, stand more than 20 minutes, walk up more than one flight of stairs, or squat or kneel.  The examiner indicated that the Veteran had mild functional impairment and that he was able to perform sedentary work.  The complaints of flare-ups, painful motion and limited endurance are expressly provided for by 38 C.F.R. §§ 4.40, 4.45, 4.59 and the DeLuca criteria discussed above.  The Veteran does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  He merely disagrees with the assigned evaluation for his level of impairment.  The available schedular ratings criteria reasonably describe the service-connected disability; thus, the schedular ratings criteria are adequate to rate the Veteran's disability.  The Board need not determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization."  See Thun, 22 Vet. App. at 115.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  

The Board has considered the possibility of staged ratings.  The Board, however, concludes that the criteria for a rating in excess of 10 percent have not been met at any period on appeal and referral for extraschedular consideration has not been warranted for any period on appeal for right knee strain/sprain with chondromalacia.  Accordingly, staged ratings are inapplicable.  See Fenderson.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's right knee claim.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Disability Rating for Tension Headaches

Migraine, with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability will be rated as 50 percent disabling.  Migraine headaches, with characteristic prostrating attacks occurring on an average of once a month of the last several months, is rated as 30 percent disabling.  With characteristic prostrating attacks averaging one in two months, over the last several months, a 10 percent rating is warranted.  38 C.F.R. § 4.124a, Code 8100.

The Veteran's headaches were evaluated at a January 2012 VA examination.  He had pulsating or throbbing pain localized to the left side of the head, sensitivity to light and sound, changes in vision, but took no medication for the headaches.  He had prostrating attacks once every two months.  The attacks were not very frequent.  The examiner opined that the headaches did not result in functional limitations and were "mild."

The Veteran has not offered a statement describing his headache symptoms.  The remaining evidence does not describe his headache symptoms.  

The Board finds that the Veteran's tension headaches have not been productive of characteristic prostrating attacks very frequently or at least once a month at any time during the period on appeal.  The criteria for a rating in excess of 10 percent are not met.  38 U.S.C.A. § 4.124a, DC 8100.

The Board has considered whether referral for extraschedular consideration is warranted for tension headaches.  The schedular ratings criteria for the Veteran's tension headaches are not inadequate.  The headaches were evaluated in accordance with the ratings criteria.  The Veteran has not provided a description of lay observable manifestations of the headaches which are not compensated by the disability ratings criteria.  The Veteran merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations reasonably describe the service-connected disability; thus, the schedular evaluations are adequate to rate the Veteran's disability.  The Board need not determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization."  See Thun, 22 Vet. App. at 115.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  

The Board has considered the possibility of staged ratings.  The Board, however, concludes that the criteria for schedular ratings have not been met at any point throughout this appeal and referral for extraschedular consideration has not been warranted for any period on appeal.  Accordingly, staged ratings are inapplicable.  See Fenderson.  

Disability Rating for Right Index Finger Amputation and Tinnitus

The Veteran is in receipt of a 10 percent disability rating for amputation of the right index finger at the distal joint.  This is the maximum schedular rating for an amputation of an index finger at the distal joint.  38 C.F.R. § 4.71a, DC 5153.  Inquiry into the DeLuca factors is moot.  See Johnston v. Brown, 10 Vet. App. 80, 87 (1997).  

Similarly, the Veteran is in receipt of a 10 percent disability rating for tinnitus.  This is the maximum schedular rating.  38 C.F.R. § 4.87, DC 6260; Smith v. Nicholson, 451 F.3d 1344, 1350-51 (Fed. Cir. 2006).  

The schedular ratings criteria for the Veteran's right index finger amputation and tinnitus are not inadequate.  The Veteran described symptoms of pain, flaring with use and weather changes, and dysesthesias in his right index finger at a December 2007 VA examination.  He denied problems with his activities of daily living but it did reduce his productivity at work.  The amputation rule under DC 5153 does not list associated symptoms; however, the Veteran's symptoms are consistent with 38 C.F.R. §§ 4.40, 4.45, and 4.59.  The Veteran has also reported neurological symptoms phantom-like pain in the missing portion of the finger.  A rating under the neurological Diagnostic Codes would compensate such symptoms, except that it would exceed the amputation rule.  38 C.F.R. §§ 4.68, 4.120-123.  The Board finds that the Veteran's right index finger distal phalangeal amputation is reasonably described by the available schedular ratings criteria; thus, the schedular ratings criteria are adequate to rate the Veteran's right index finger distal phalangeal amputation.  

At a December 2007 VA examination, the Veteran reported tinnitus that was bilateral, high pitch, loud, and occurred several times per week.  This appears to be bilateral, intermittent tinnitus, which is the basis for the current 10 percent rating.  The Veteran merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular ratings criteria reasonably describe the service-connected tinnitus; thus, the schedular ratings criteria are adequate to rate the Veteran's tinnitus.  

The Board need not determine whether the Veteran's disability pictures exhibit other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization."  See Thun, 22 Vet. App. at 115.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  

The Board has considered the possibility of staged ratings.  The Board, however, concludes that the schedular maximum has been in effect throughout this appeal and referral for extraschedular consideration has not been warranted for any period on appeal for either the right index finger amputation or tinnitus.  Accordingly, staged ratings are inapplicable.  See Hart.  

Disability Rating for Skin Rash and Tinea Pedis

The RO found both the skin rash due to an anthrax shot and tinea pedis to be noncompensably disabling under DC 7806.  

The Board notes that DC 7813 provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the feet (tinea pedis).  38 C.F.R. § 4.118.  Diagnostic Code 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability.  Id.  The RO concluded that dermatitis was the predominant disability and assigns a noncompensable rating under 7806.  

The ratings criteria for DCs 7800-7805 were amended effective October 23, 2008.  Under these circumstances, the regulation as it existed prior to the October 2008 changes is applicable to the evaluation of the Veteran's tinea pedis disorder.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  Diagnostic Codes 7806 and 7813, which are also applicable to the present claims, were not revised in any substantive way in October 2008.  Although a claimant must request reevaluation under the revised criteria and the Veteran has not done so, the Board finds that the outcome of this issue is the same regardless of which set of diagnostic criteria are applied.

The Board will address DC 7806 for both the skin rash and tinea pedis first.  

Diagnostic Code 7806 states that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated 0 percent disabling.  38 C.F.R. § 4.118, Diagnostic Code 7806.  To merit a minimum compensable rating, dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling.  Id.

The skin rash was evaluated at December 2007 and January 2012 VA examinations.  The Veteran's skin rash was incurred after an anthrax shot in 2004.  The Veteran had a patch of itchy skin on the right mid lateral upper arm of about 3 by 5 cm., or 15 square cm., in size.  The Veteran reported using topical, as opposed to systemic, corticosteroids.  The examiners indicated that the rash involved less than 5 percent of total body area and was not in an exposed area.  A compensable rating is not warranted under DC 7806.  As this is the only DC applicable to the rash disability, the Board concludes that a compensable schedular rating is not warranted.

A compensable rating is also not warranted for tinea pedis.  The Veteran's tinea pedis was also evaluated at the December 2007 and January 2012 VA examinations.  The Veteran reported using topical medication constantly or near constantly.  The examiner indicated that the tinea pedis involved less than 5 percent of total body area and was not in an exposed area.  A compensable rating is not warranted under DC 7806.  The tinea pedis does not effect the head, face, or neck.  A compensable rating under DC 7800 is not warranted.  The Veteran does not allege and the evidence of record does not show that he has had any scarring as a result of his tinea pedis.  The December 2007 and January 2012 VA examination reports stated that the Veteran did not have scarring as a result of his skin disabilities and described the appearance of the disability as athlete's feet between the fourth and fifth toes and instep bilaterally.  The Board finds that the tinea pedis has resulted in a predominant disability of dermatitis, not scarring.  Ratings under DCs 7801-7805 are not warranted.  

The Board has considered whether referral for extraschedular consideration is warranted for either the skin rash due to an anthrax shot and tinea pedis.  The schedular ratings criteria for the Veteran's skin rash due to an anthrax shot and tinea pedis are not inadequate.  The rash and tinea pedis were evaluated in accordance with the ratings criteria.  The Veteran has not provided a description of lay observable manifestations of the rash or tinea pedis which are not compensated by the disability ratings criteria.  The Veteran merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations reasonably describe the service-connected disability; thus, the schedular evaluations are adequate to rate the Veteran's disability.  The Board need not determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization."  See Thun, 22 Vet. App. at 115.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  

The Board has considered the possibility of staged ratings.  The Board, however, concludes that the criteria for schedular ratings have not been met at any point throughout this appeal and referral for extraschedular consideration has not been warranted for any period on appeal.  Accordingly, staged ratings are inapplicable.  See Hart.  

In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's increased and initial rating claims for right knee, headache, right index finger amputation, tinnitus, skin rash and tinea pedis.  Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for PTSD is granted.

Service connection for atypical chest pain as secondary to the service-connected granulomatous disease is granted.

Service connection for right lower leg pain is denied.

Service connection for acid reflux is denied.

An effective date of January 18, 2007, but no earlier, for the grant of service connection for DDD of the lumbar spine is granted.

An effective date of January 18, 2007, but no earlier, for the grant of service connection for left lower extremity radiculopathy secondary to DDD of the lumbar spine is granted.

An effective date earlier than January 18, 2007 for the grant of service connection for a right knee sprain/strain with chondromalacia is denied.

An effective date of July 24, 2005, but no earlier, for the grant of service connection for a left knee sprain/strain with chondromalacia is granted.

An effective date earlier than January 18, 2007 for the grant of service connection for tension headaches is denied.

An effective date earlier than January 18, 2007 for the grant of service connection for a depressive disorder, NOS, is denied.

An effective date earlier than January 18, 2007 for the grant of service connection for granulomatous disease is denied.

An initial rating in excess of 10 percent for a right knee sprain/strain with chondromalacia is denied.

An initial rating in excess of 10 percent for tension headaches is denied.

An increased rating in excess of 10 percent for a right index finger amputation is denied.

An increased rating in excess of 10 percent for tinnitus is denied.

A compensable rating for a rash is denied.

A compensable rating for tinea pedis is denied.


REMAND

Service Connection for a Left Side Nose Disorder and for Flatfeet

The Board concludes that medical examinations and opinions are necessary for the service connection for the left side nose disorder and flatfeet claims.  McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).  

The nature of the claimed left side nose disability is not clear.  The Veteran's service treatment records show that he was treated for cold symptoms and diagnosed with a viral syndrome in December 1991.  The Veteran was treated for complaints of a burning sensation in his nose and stuffiness in December 1993, which was found to be an upper respiratory infection.  The Veteran's VA treatment records contain a diagnosis of chronic rhinitis.  The Veteran was treated for cold symptoms in March 2003.  In an August 2004 post deployment health assessment, the Veteran reported having chronic cough, runny nose, and a fever during the deployment.  A July 2009 CT scan was interpreted to show calcification of the inferior turbinate bone on the left side and narrowing of the nasal airways and a septal deviation to the left side.  Finally, the Veteran was found to have bilateral nasal obstruction with sleep apnea in January 2012.  

The Veteran was treated for several upper respiratory infections, some of which appear persistent.  There are now obstructions of the left side nasal passages.  The Board remands for a VA examination to assist in determining the nature of the current disability and whether it is at least as likely as not related to illnesses occurring during the Veteran's two periods of active service.  See McLendon.  

The Board must also remand the service connection for flatfeet claim for a VA examination and opinion.  The Veteran's VA treatment records contain a diagnosis of congenital pes planus.  Congenital pes planus is a congenital abnormality which is not compensable.  38 C.F.R. §§ 3.303(c), 4.9, 4.57 (2013); see also VAOPGCPREC 67-90, 82-90.  Congenital or development defects may be service-connected where a super-imposed injury occurs during, or as a result of, active service.  VAOPGCPREC 82-90.  

The Veteran's service treatment records show potentially superimposed disorders of both feet.  An April 1991 X-ray study was performed for the right foot following complaints of pain and edema due to trauma after the Veteran got his foot accidentally caught in a tank turret.  No fracture or dislocation was found.  A foreign body was noted at the level of the distal aspect of the third metatarsal.  The Veteran was seen in September 1991 for complaints of feet problems for eight months.  He was found to have left heel pain.  On referral to the podiatry service, he was found to have planter fasciitis of the left foot.  On X-ray, a foreign body was found near the arch.  

The Veteran has been seen for foot pain by VA in January and February 2008.  He was noted to have plantar fasciitis in January 2008.  On referral to the podiatry service in February, the Veteran reported pain from the heel along the arch to the ball of each foot.  He reported problems with his feet since being in active military service.  The impression was symptomatic pes planus.  Imaging tests of the Veteran's feet were not conducted.  

Although the Veteran has a congenital defect, congenital pes planus, the service treatment records also indicate the presence of plantar fasciitis and foreign bodies found on x-ray.  He has complained of foot problems since active service.  He may have plantar fasciitis at the present, but the medical evidence is not clear whether he does or not and whether that may be related to service or not.  The foreign bodies found during service have not been investigated at all.  He was not provided a VA examination pursuant to this claim.  The Board concludes that an examination is warranted pursuant to VA's duty to assist.  See McLendon, 20 Vet. App. at 81-82.




Initial Ratings

As discussed above, the Board has granted service connection for PTSD.  Service connection may be granted for separately diagnosed psychiatric disorders even though separate evaluations may be assigned only if the disorders have different manifestations.  Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); see also 38 C.F.R. § 4.14.  The Board finds that a medical opinion is necessary to determine, if possible, to what extent the PTSD and depressive disorder NOS have different manifestations.  As a result, the Board is unable to proceed to consider the initial rating for the depressive disorder, NOS, at this time and remands for the medical opinion. 

The Board has granted earlier effective dates for service connection for lumbar spine DDD, left lower extremity radiculopathy, and left knee strain/sprain with chondromalacia.  The RO has not assigned initial ratings for the periods granted by the Board.  To ensure due process, the Board must remand the initial ratings appeals for these disabilities to the RO to implement the earlier effective dates and adjudicate the appropriate initial disability ratings in the first instance.  

The Board must also remand the initial rating claim for a compensable rating for granulomatous disease.  The record contains multiple references to a November 26, 2007 VA pulmonology consultation report which included pulmonary function tests.  This report is not of record.  The Board remands to obtain the Veteran's VA treatment records pertaining to granulomatous disease.  All VA treatment records that could potentially be helpful in resolving a claim must be obtained.  Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990).  

The Veteran has been receiving treatment from VA on an ongoing basis.  The claims file reflects treatment only through March 2012.  Therefore, those records must be obtained for the file.  Moreover, to ensure a complete record on appeal, the Board finds that additional VA examinations are warranted to assess the current level of severity of the Veteran's depressive disorder, lumbar spine DDD, left lower extremity radiculopathy, and granulomatous disease.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's VA treatment records for treatment concerning the PTSD and depressive disorder, lumbar spine DDD, left leg radiculopathy, left knee, and granulomatous disease from March 2012 to the present.  In addition, obtain the November 26, 2007 pulmonology consultation report.  All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available.

2.  After obtaining the above evidence, to the extent available, schedule the Veteran for appropriate VA examinations to provide the following opinions:

a.  Identify all current disorders effecting of the left side of the Veteran's nose.

b.  Are any identified disorders of the nose at least as likely as not related to in-service treatment for upper respiratory infections?

c.  Identify all current disorders of the feet, other than pes planus and tinea pedis.

d.  Are any identified disorders of the feet, other than pes planus and tinea pedis, at least as likely as not caused by in-service foot injuries or diseases, including the April 1991 and the September 1991 injury and foreign bodies found by X-ray?

e.  Assess the current extent and severity of the Veteran's service-connected depressive disorder NOS and PTSD.

f.  Provide an opinion as to whether the Veteran at least as likely as not has manifestations of depressive disorder NOS which are distinct from the manifestations of his service-connected PTSD.

g.  Assess the current extent and severity of the Veteran's DDD of the lumbar spine, left lower extremity radiculopathy, and granulomatous disease.  

The examiner should identify the limitation of activity imposed by the Veteran's service-connected lumbar spine DDD, left lower extremity radiculopathy and granulomatous disease, to include the effect of chest pain, with a full description of the effect of the disabilities upon his ordinary activities.  The examiner should fully describe any weakened movement, excess fatigability, and incoordination present.

It would be helpful if the examiners would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The examiners should provide a complete rationale for any opinion provided.

3.  Then, the RO should readjudicate the claims on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2013).  

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. 2013).




______________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs