Citation Nr: 1329268	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  99-09 886	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUES

1.  Entitlement to service connection for a right elbow 
disorder (claimed as tendonitis), including as secondary to 
service-connected seborrheic dermatitis.

2.  Entitlement to special monthly compensation (SMC) based 
on the loss of use of the lower extremities or the need for 
aid and attendance (A&A).

3.  Entitlement to a rating higher than 30 percent for the 
seborrheic dermatitis.

4.  Entitlement to a rating higher than 40 percent for 
degenerative joint disease (DJD) of the low back.

5.  Entitlement to a rating higher than 10 percent for 
residual scars on the left foot.

6.  Entitlement to a rating higher than 10 percent for 
residual scars on the left heel.

7.  Entitlement to a rating higher than 10 percent for 
residuals of a laparotomy, including a scar.

8.  Entitlement to a rating higher than 10 percent for post-
operative liver laceration residuals.

9.  Entitlement to a rating higher than 10 percent for left 
knee traumatic arthritis.

10.  Entitlement to a rating higher than 20 percent for 
residuals of a shell fragment wound (SFW) of the right lung 
with retained fragments.

11.  Entitlement to a rating higher than 20 percent for 
residuals of a SFW of the left ankle with retained 
fragments.

12.  Entitlement to a rating higher than 20 percent for 
residuals of a SFW of the left knee with ligament 
instability.

13.  Entitlement to a rating higher than 10 percent for 
residuals of a SFW of the right knee with retained fragments 
involving muscle.

14.  Entitlement to a separate rating for right knee 
traumatic arthritis.

15.  Entitlement to a compensable rating for residuals of a 
SFW of the left upper extremity above the elbow.

16.  Entitlement to an initial rating higher than 60 percent 
for Hepatitis C.

17.  Entitlement to an initial compensable rating for 
hemorrhoids.


REPRESENTATION

Veteran represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

The Veteran-Appellant


ATTORNEY FOR THE BOARD

S. Finn, Counsel

INTRODUCTION

The Veteran served on active duty in the military from May 
1968 to October 1970.  He received the Purple Heart Medal 
and Combat Infantryman Badge (CIB).

He appealed to the Board of Veterans' Appeals (Board/BVA) 
from rating decisions of the Department of Veterans Affairs 
(VA) Regional Office (RO).

In an August 1985 decision and remand, the Board remanded 
the claim of entitlement to service connection for residuals 
of a SFW of the left elbow.  In a February 1987 decision, 
the Board recharacterized the Veteran's claim more generally 
as for service connection for residuals of a SFW of the left 
upper extremity and granted the claim.  He filed another 
claim in January 1998 for service connection for the left 
elbow disability with shrapnel, alleging additional 
impairment deserving of compensation.  So this claim now 
concerns whether he is entitled to a compensable rating for 
the residuals of the SFW of his left upper extremity above 
the elbow.

In an appealed October 1998 rating decision, the RO 
addressed the issues of entitlement to an increased 
evaluation for seborrheic dermatitis; entitlement to an 
increased evaluation for posttraumatic stress disorder 
(PTSD); entitlement to an increased evaluation for residuals 
of a SFW of the left ankle with retained metallic fragments; 
entitlement to an increased evaluation for residuals of a 
SFW of the left knee with ligament instability; entitlement 
to an increased evaluation for traumatic arthritis of the 
left knee; entitlement to an increased evaluation for a 
retained mortar fragment in the right knee; entitlement to 
an increased evaluation for left heel scars; entitlement to 
an increased evaluation for residuals of a liver operation; 
entitlement to a compensable evaluation for a SFW of the 
left upper extremity above the elbow; entitlement to service 
connection for hypertension, including as due to the 
Veteran's service-connected disabilities; and entitlement to 
SMC based on the loss of use of both lower extremities or 
the need for A&A.  The October 1998 decision also addressed 
the issue of entitlement to an initial compensable 
evaluation for hemorrhoids.  See Fenderson v. West, 
12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an 
initial rating, VA must consider whether to "stage" the 
rating - meaning assign different ratings at different times 
since the effective date of the award to compensate him for 
occasions when the disability has been more severe than at 
others).

A December 1999 rating decision reflects that the left knee 
with ligament instability and early traumatic arthritis 
rated as 20-percent disabling was discontinued on February 
5, 1998, because it was found to be more properly evaluated 
under a separate diagnostic code with a 20 percent rating 
assigned for SFWs with arthritis and an additional 10 
percent for limited range of motion.

These claims subsequently were the subject of a June 2001 
remand for notice to comply with the Veterans Claims 
Assistance Act (VCAA) that recently had been signed into 
law.

A July 2001 rating decision granted the Veteran's claim for 
service connection for Hepatitis C and assigned an initial 
10 percent rating retroactively effective from February 5, 
1998.  He appealed for a higher initial rating.  See again 
Fenderson, 12 Vet. App. at 125-26.  And in a February 2002 
rating decision since issued, the RO increased the rating to 
60 percent with the same retroactive effective date of 
February 5, 1998.  He since has continued to appeal, 
requesting an even higher initial rating for this 
disability.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) 
(It is presumed a Veteran is seeking the highest possible 
rating for a disability, absent express indication to the 
contrary).  The February 2002 rating decision denied his 
claim for an increased evaluation for the residuals of the 
laparotomy scar.

In a March 2003 decision, the Board granted his claim of 
entitlement to a higher rating for the DJD of his 
lumbosacral spine - increasing the rating for this 
disability to 40 percent retroactively effective as of 
September 4, 2001.  However, the Board denied the claims for 
higher ratings for the residuals of the SFW of his right 
lung with retained fragments and for the residual scars on 
his left foot, as well as for service connection for a neck 
disorder, tendonitis of the elbows, and carpal tunnel 
syndrome of the wrists.  He submitted a Notice of 
Disagreement (NOD) with that decision in April 2003, so the 
following month.

As such, in March 2005 the Board remanded these claims to 
the RO via the Appeals Management Center (AMC) to send him a 
Statement of the Case (SOC) addressing these particular 
claims, as indicated as the appropriate disposition in 
Manlincon v. West, 12 Vet. App. 238 (1999).  And after the 
AMC issued an SOC in June 2005 addressing these additional 
claims, he subsequently perfected his appeal of these 
additional claims to the Board by filing a timely 
substantive appeal (VA Form 9) in response.  See 38 U.S.C.A. 
§ 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012).

Another reason for that March 2005 remand was to schedule a 
hearing at the RO before a Veterans Law Judge of the Board 
(Travel Board hearing).  And the Veteran had this hearing in 
October 2010.

In a May 2008 rating decision, the AMC increased the rating 
for the Veteran's PTSD from 30 to 70 percent retroactively 
effective from November 7, 1997, the date service connection 
was established.  In a March 2011 decision, the Board found 
that from November 7, 1997 to June 18, 2006, the criteria 
were not met for a rating higher than 70 percent for the 
PTSD.  Since June 19, 2006, however, the criteria had been 
met for a 100 percent rating for the PTSD, so for the 
highest possible schedular rating.  In an April 2011 rating 
decision, the RO implemented 


the Board's decision and assigned the higher 100 percent 
disability rating retroactively effective from June 19, 
2006.  In response the Veteran appealed for an earlier 
effective date for this higher rating (see his April 2011 
NOD).  See also Grantham v. Brown, 114 F.3d 1156, 1158-59 
(Fed. Cir. 1997) (indicating he had to separately appeal 
this "downstream" issue).  But this issue already had been 
addressed by the Board in its March 2011 decision since, 
from November 7, 1997 to June 18, 2006, the Board had 
determined that the criteria were not met for a rating 
higher than 70 percent for the PTSD.  In April 2011, the RO 
advised him of the process by which he could appeal or seek 
reconsideration of the Board's decision.  He did not, 
however, file a request for reconsideration of that decision 
or appeal to the higher U. S. Court of Appeals for Veterans 
Claims (Court/CAVC).

He did nonetheless perfect an appeal of another claim to the 
Board, namely, for osteoarthritis of his hands, by filing a 
timely substantive appeal (e.g., VA Form 9 or equivalent 
statement) in response to the December 2007 SOC.  See again 
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012).  
But a September 2012 rating decision granted service 
connection for psoriatic arthritis of his hands (claimed as 
osteoarthritis of his hands), assigning a 10 percent rating 
retroactively effective from April 28, 2005.  And since he 
did not separately appeal either this rating or effective 
date, this claim is no longer at issue.  Grantham v. Brown, 
114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed 
claim for service connection is granted during the pendency 
of the appeal, a second NOD thereafter must be timely filed 
to initiate appellate review of the claim concerning 
"downstream" issues such as the compensation level assigned 
for the disability and effective date).

Also in the March 2011 decision, the Board denied the claim 
for service connection for hypertension, neck/cervical spine 
disorder, and bilateral carpal tunnel syndrome.  The 
Veteran's remaining claims instead were remanded for further 
development, including especially to obtain outstanding VA 
treatment records and to have him undergo VA compensation 
examinations.



A review of the electronic ("Virtual VA") paperless claims 
file does not reflect additional treatment records other 
than those cited in the Board's remand.  Instead of paper, a 
highly secured electronic repository is now being used more 
and more to store and review every document involved in the 
claims process.  Indeed, VA is in the process of 
transitioning to an even newer and purportedly better system 
- the Veterans Benefits Management System (VBMS).  The use 
of Virtual VA and the VBMS allows VA to leverage information 
technology in order to more quickly and accurately decide 
claims for benefits.  Because this appeal was processed as 
part of the Virtual VA system, any future consideration of 
the Veteran's claims should take into consideration the 
existence of this electronic record.

In November 2008 the Veteran alleged clear and unmistakable 
error (CUE) in the November 18, 1970 rating decision 
regarding his initial rating for the residuals of the SFW of 
his right lung with retained fragments.  (See November 2008 
Written Statement).  He essentially asserts that he was 
entitled to a higher rating for this disability because DCs 
6818-5321 were two different diagnostic codes that require 
separation for a higher evaluation, either as an individual 
disability or to be used in a bilateral factor.  
(See November 2012 Post-Remand Brief).  The Board is 
referring this claim to the RO, as the Agency of Original 
Jurisdiction (AOJ), for initial consideration.  The Board 
generally does not have jurisdiction to consider claims that 
have not been considered by the RO in the first instance, as 
this in effect would deprive the Veteran of the initial 
level of review such that he would lose the proverbial "one 
bite at the apple."  The Veterans Court (CAVC) has clarified 
the meaning of the terms frequently used to determine the 
scope of a claim properly on appeal before the Board.  See 
Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011).  A 
"claim" seeks entitlement to a benefit, a "theory" is a 
means of establishing entitlement to the benefit sought, and 
a "matter" is the entire subject under consideration.  Id.  
All theories pertaining to the same benefit for the same 
disability are part of the same claim.  Id.; but see Jarrell 
v. Nicholson, 20 Vet. App. 326, 332 (2006) (distinguishing 
requests for revision of a decision on the grounds of CUE 
under 38 U.S.C.A. § 5109(a) (West 2002)).  


As the meaning of the term encompasses the entire subject 
under consideration by the adjudicatory body, the scope of 
the matter may be different at different stages of 
adjudication.  Hillyard, 24 Vet. App. at 355.

Accordingly, the Board has jurisdiction to adjudicate the 
merits of different theories, or questions, on a single 
matter because the Veteran's appeal properly brings all 
means of establishing entitlement to the benefit sought 
before the Board.  Godfrey v. Brown, 7 Vet. App. 398, 409 
(1995); see also Hillyard, 24 Vet. App. at 355.  However, an 
NOD and Substantive Appeal (VA Form 9 or equivalent 
statement) filed by the Veteran cannot confer jurisdiction 
on the Board to review claims that are wholly separate and 
distinct from the claim presented to and adjudicated by the 
RO.  Jarrell, 20 Vet. App. at 332; Godfrey, 7 Vet. App. at 
409.

The claim of entitlement to service connection for a right 
elbow disorder (claimed as tendonitis), including as 
secondary to the service-connected seborrheic dermatitis, 
also the claims for higher ratings for the seborrheic 
dermatitis, for residuals of a SFW of the left ankle with 
retained fragments, for residuals of a SFW of the left knee 
with ligament instability, for residuals of a SFW of the 
right knee with retained fragments, for residuals of a SFW 
of the left upper extremity above the elbow, for residuals 
of a SFW of the right lung with retained fragments, and for 
SMC based on the loss of use of both lower extremities or 
the need for A&A all require further development before 
being decided on appeal.  So the Board is remanding these 
claims to the RO via the AMC.  Whereas the Board, instead, 
is going ahead and deciding the remaining claims.




FINDINGS OF FACT

1.  The Veteran has severe, rather than pronounced, 
intervertebral disc syndrome (IVDS) of his lumbar spine, 
which is manifested by complaints of increasing pain and 
consequent limitation of forward flexion to between 10 and 
25 degrees.  He does not have unfavorable ankylosis of his 
entire thoracolumbar spine, however, and has not experienced 
incapacitating episodes having a total duration of at least 
6 weeks during the past 12 months.

2.  He has at least 5 total post-surgical scars that are 
painful and unstable.

3.  His left knee has mild-to-moderate osteoarthritis that 
causes painful motion with flexion, at worst, limited to 80 
degrees but with full extension to 0 degrees.

4.  His right knee has mild osteoarthritis and painful 
motion with flexion, at worst, limited to 94 degrees but 
with full extension to 0 degrees.

5.  The residuals of the laceration of his liver include a 
pulling sensation in his back, a painful abdominal area, and 
palpable adhesions.

6.  The preponderance of the evidence weighs against finding 
that his Hepatitis C causes near-constant debilitating 
symptoms.

7.  He does not have external or internal hemorrhoids that 
are large or thrombotic, irreducible, with excessive 
redundant tissue, evidencing frequent recurrences.



CONCLUSIONS OF LAW

1.  The criteria are not met for a rating higher than 40 
percent for the DJD of the lumbar spine.  38 U.S.C.A. §§ 
1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 
4.40, 4.45, 4.59 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 
5293 (2002), as amended by 67 Fed. Reg. 54,345 (Aug. 22, 
2002) and 68 Fed. Reg. 51,454 (Aug. 27, 2003), now codified 
at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

2.  The criteria are not met for a rating higher than 10 
percent for the painful scars of the left foot, left heel, 
and laparotomy from February 5, 1998 to October 22, 2008.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 
3.400, 4.1, 4.2, 4.3, 4.7, 4.10 (2012); 4.118, Diagnostic 
Code 7804 (prior to October 23, 2008).

3.  But the criteria are met for a higher 40 percent rating, 
though no greater rating, for these scars (left foot, left 
heel, and laparotomy) since October 23, 2008.  38 U.S.C.A. 
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.400, 4.1, 
4.2, 4.3, 4.7, 4.10 (2012); 4.118, Diagnostic Code 7804 
(from October 23, 2008).

4.  The criteria are not met for a rating higher than 10 
percent for the osteoarthritis and painful motion of the 
left knee.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, 
Diagnostic Codes (DCs) 5003, 5010, 5260, 5261 (2012).

5.  The criteria are met, however, for a separate 10 percent 
rating for the osteoarthritis of the right knee and painful 
motion.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 
DCs 5003, 5010, 5260, 5261 (2012).

6.  But the criteria are not met for a rating higher than 10 
percent for the 
post-operative liver laceration residuals.  U.S.C.A. §§ 
1155, 5107 (West 2002); 38 C.F.R. § 4.114, DC 7301-7311 
(2001), effective prior to July 2, 2001; 38 C.F.R. §§ 3.102, 
3.159, 4.112, 4.114, DC 7345 (2004), effective July 2, 2001.

7.  The criteria also are not met for a rating higher than 
60 percent for the Hepatitis C.  38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, DC 7354 
(2012).

8.  The criteria are not met, as well, for a compensable 
rating for the hemorrhoids.  38 U.S.C.A. §§ 1155, 5107 (West 
2002); 38 C.F.R. § 4.97, DC 7336 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

The VCAA describes VA's duties to notify and assist a 
claimant in substantiating a claim for VA benefits upon 
receipt of a complete or substantially complete application.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) must:  (1) inform the claimant of the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform him of the information 
and evidence that VA will obtain; and (3) inform him of the 
information and evidence that he is expected to provide.  
See also Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002).

It is important to keep in mind, however, that some of these 
claims (specifically, those regarding the Hepatitis C, 
postoperative liver laceration, hemorrhoids, and DJD of the 
lumbar spine) arose in the context of the Veteran trying to 
establish his underlying entitlement to service connection 
for these disabilities.  So any VCAA notice initially 
provided would have addressed these claims in this specific 
context.  Service connection for these disabilities since 
has been granted in the decisions precipitating this appeal.  
And the U. S. Court of Appeals for the Federal Circuit 
(Federal Circuit Court) has held that, once service 
connection is granted, the claim, as it arose in its initial 
context has been substantiated, indeed proven, so the 
initial intended purpose of the notice served such that 
§ 5103(a) notice is no longer required.  Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton v. 
Nicholson, 20 Vet. App. 419 (2006).  In this situation, 
then, VA is not required to provide additional VCAA notice 
concerning the "downstream" disability rating and effective 
date elements of the claim.  Goodwin v. Peake, 22 Vet. App. 
128 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112 
(2007) and VAOPGCPREC 
8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Rather, according 
to the holding in Goodwin and these other precedent cases 
and VA General Counsel's Opinion, instead of issuing an 
additional VCAA notice letter in this situation concerning 
the "downstream" disability rating element of the claim, the 
provisions of 38 U.S.C.A. § 7105(d) require VA to issue an 
SOC if the disagreement is not resolved.  The RO sent the 
Veteran this required SOC addressing the "downstream" 
disability rating element of his claims.  The RO/AMC also 
since has provided him supplemental SOCs (SSOCs).  The SOC 
and SSOCs included citation to the applicable statutes and 
regulations governing the assignment of disability ratings, 
including initial ratings, and contained discussions of the 
reasons and bases for not assigning higher initial ratings 
for these disabilities.  He therefore has received all 
required notice concerning his "downstream" claims for 
higher initial ratings for these disabilities.

He nonetheless was provided letters in May 2002, June 2005, 
December 2007, July 2008 and March 2011 indicating the types 
of evidence necessary to substantiate these initial-rating 
claims for his Hepatitis C, hemorrhoids, and DJD of the 
lumbar spine, also concerning his increased rating claims 
for his scars, left knee, and right knee disabilities, and 
explaining the division of responsibility between him and VA 
in obtaining this supporting evidence, including the 
information needed to obtain both his private and VA medical 
treatment records.  The letter also explained how a 
"downstream" disability rating and effective date are 
determined once, as here, service connection for the claimed 
disability is granted, in compliance with Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom.  
Hartman v. Nicholson, 483 F.3d 1311 (2007).

With regard to his increased rating claims (for his scars, 
left knee, and right knee), the Veterans Court initially 
held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), 
that, for an increased-compensation claim (so including a 
claim for SMC), 38 U.S.C. § 5103(a) requires, at a minimum, 
that VA notify the claimant that, to substantiate the claim, 
the medical or lay evidence must show a worsening 
or increase in severity of the disability, and the effect 
that such worsening or increase has on the claimant's 
employment and daily life.  On appeal, however, in Vazquez-
Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the Federal 
Circuit Court vacated and remanded important aspects of the 
Court's holding in Vazquez-Flores, as well as a related 
case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 
(Vet. App. Mar. 7, 2008).  Significantly, the Federal 
Circuit Court concluded that "the notice described in 38 
U.S.C. § 5103(a) need not be Veteran specific."  Similarly, 
"while a Veteran's 'daily life' evidence might in some cases 
lead to evidence of impairment in earning capacity, the 
statutory scheme does not require such evidence for proper 
claim adjudication."  Thus, the Federal Circuit Court held, 
"insofar as the notice described by the [Court] in Vazquez-
Flores requires the VA to notify a Veteran of alternative 
diagnostic codes or potential "daily life" evidence, we 
vacate the judgments."  Vazquez, 580 F.3d at 1277.

It also since has been held in Vazquez-Flores v. Shinseki, 
No. 05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010), that 
after a notice error, such as failing to inform the 
Appellant to submit evidence demonstrating the effect that a 
worsening of the disability has on employment, is found in 
an increased-rating claim, the Appellant's burden to 
demonstrate prejudice at the CAVC level does not shift to VA 
unless notice is not provided at all.

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U.S. 
Supreme Court made clear that a reviewing court, in 
considering the rule of prejudicial error, is precluded from 
applying a mandatory presumption of prejudice rather than 
assessing whether, based on the facts of each individual 
case, the error was outcome determinative.  In Sanders, the 
Supreme Court rejected the lower Federal Circuit Court's 
framework (see Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. 
Cir. 2007)) that all VA notice errors are presumptively 
prejudicial, in part, because it was "complex, rigid, and 
mandatory."  Id. at 1704.  The Supreme Court rejected the 
Federal Circuit Court's analysis because it imposed an 
unreasonable evidentiary burden on VA to rebut the 
presumption and because it required VA to demonstrate why 
the error was harmless, rather than requiring the appellant 
- as the pleading party - to show the error was harmful.  
Id. at 1704-05.  The Supreme Court stated that it had 
"warned against courts' determining whether an error is 
harmless through the use of mandatory presumptions and rigid 
rules rather than case-specific application of judgment, 
based upon examination of the record."  Id. at 1704-05.  
Thus, it is clear from the Supreme Court's analysis that, 
while a Court may conclude generally that a specific type of 
error is more likely to prejudice an appellant, the error 
nonetheless must be examined in the context of the facts of 
the particular case.  Id.  Moreover, as the pleading party 
attacking the agency's decision, the Veteran, not VA, has 
this burden of proof.

VA's additional duty to assist under the VCAA includes 
helping the claimant to obtain potentially relevant records, 
including service treatment records (STRs) and other 
pertinent records of evaluation and treatment since service, 
as well as providing an examination or obtaining a medical 
opinion when needed to make a decision on the claim.  See 38 
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  There are not these 
obligations if there is no reasonable possibility that 
assisting the Veteran with his claim would result in 
substantiation of it.

To this end, the Veteran was provided VA compensation 
examinations in August 1998, August 2001, May 2002, July 
2006, and August 2011.  These examinations were 
comprehensive and adequate for the purposes of deciding 
these claims.  The reports reflect that the examiners 
reviewed his medical history, recorded his then current 
complaints, performed an appropriate objective 
physical examination, and rendered appropriate diagnoses and 
opinions consistent with the other relevant evidence of 
record, both initially in terms of etiologies (when the 
issue was entitlement to service connection) and then 
subsequently regarding the severity of these disabilities 
(owing to the fact that this now is the more determinative 
"downstream" issue).

In Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012), the 
Court held that "examination reports are adequate when, as a 
whole, they sufficiently inform the Board of a medical 
expert's judgment on a medical question and the essential 
rationale for that opinion" even when the rationale does not 
explicitly "lay out the examiner's journey from the facts to 
a conclusion."  Citing Acevedo v. Shinseki, 25 Vet. App. 
286, 293 (2012) (noting that the law imposes no reasons-or-
bases requirement on examiners); see also D'Aries v. Peake, 
22 Vet. App. 97, 104 (2008) (holding that an examination is 
adequate when it is based on consideration of the claimant's 
medical history and describes the disability in sufficient 
detail so that the Board's evaluation of the disability will 
be a fully informed one).

Neither the Veteran nor his representative has raised 
questions about the adequacy of those examinations.  Unless 
the claimant challenges the adequacy of an examination or 
opinion, the Board may assume that the examination report 
and opinion are adequate and need not affirmatively 
establish the adequacy of the examination report or the 
competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 
1362, 1365-66 (Fed. Cir. 2011) (holding that although the 
Board is required to consider issues independently raised by 
the evidence of record, the Board is still "entitled to 
assume" the competency of a VA examiner and the adequacy of 
a VA opinion without "demonstrating why the medical 
examiners' reports were competent and sufficiently 
informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-
1291 (Fed. Cir. 2009) (holding that the Board is entitled to 
assume the competency of a VA examiner unless the competence 
is challenged).  But even when this is challenged, the Board 
may assume the competency of any VA medical examiner as long 
as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified 
through education, training, or experience to offer medical 
diagnoses, statements, or opinions.  See Cox v. Nicholson, 
20 Vet. App. 563 (2007). 

The Veteran also testified at a hearing before the Board in 
October 2010 that essentially focused on the elements 
necessary to substantiate his claims.  His hearing testimony 
and his representative's statements and testimony 
demonstrate their actual knowledge of the elements necessary 
to substantiate the claims.  See Dalton v. Nicholson, 21 
Vet. App. 23, 30-31 (2007) (actual knowledge is established 
by statements or actions by the claimant or the claimant's 
representative demonstrating an awareness of what is 
necessary to substantiate a claim).  As such, the Board 
finds that, consistent with Bryant v. Shinseki, 23 Vet. 
App. 488 (2010), the presiding Veterans Law Judge (VLJ) of 
the Board complied with the duties set forth in 38 C.F.R. 
3.103(c)(2) (2012) in terms of:  (1) explaining fully the 
issues and (2) suggesting the submission of evidence that 
the claimant may have overlooked and that would be 
advantageous to his position.

Further, the RO and AMC complied with the prior remand 
directives in June 2001, March 2005, and March 2011 by 
providing the Veteran a hearing; obtaining all VA and non-VA 
treatment records, Social Security Administration (SSA) 
records, STRs, lay testimony and statements offered in 
support of the claims, and by having him examined and 
reexamined to assess and reassess the severity of his 
disabilities.  See Stegall v. West, 11 Vet. App. 268, 271 
(1998) (holding that a remand by the Board confers upon the 
Veteran, as a matter of law, the right to compliance with 
its remand instructions, and imposes upon VA a concomitant 
duty to ensure compliance with the terms of the remand); but 
see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) 
(holding that only substantial rather than strict compliance 
with the Board's remand directives is required under 
Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 
(1999).

All relevant evidence necessary for an equitable resolution 
of these claims has been identified and obtained, to the 
extent possible.  The evidence of record includes 
as mentioned the STRs, SSA records, private records, VA 
medical records, VA examination reports, and statements from 
the Veteran and his representative.  They have not indicated 
they have any further evidence to submit to VA or that VA 
needs to obtain.  There is no indication there exists any 
additional evidence that has a bearing on these claims being 
decided that has not been obtained.  The Veteran has been 
accorded ample opportunity to present evidence and argument 
in support of these claims.  All pertinent due process 
requirements have been met.

Higher Rating Claims - In General

Disability ratings are assigned in accordance with VA's 
Schedule for Rating Disabilities and are intended to 
represent the average impairment of earning capacity 
resulting from disability.  See 38 U.S.C.A. § 1155; 38 
C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes identify 
the various disabilities. 38 C.F.R, Part 4.

The Court has held that an appeal from an initial rating is 
a separate and distinct claim from a claim for an increased 
rating.  See Fenderson v. West, 12 Vet App 119 (1999).  
Therefore, in matters concerning an initial rating, separate 
ratings can be assigned for separate periods of time based 
on facts found, a practice known as "staged" ratings.  See 
Fenderson, 12 Vet. App. 125-26.  The Court since has 
extended this practice even to cases that do not involve 
initial ratings, so also established ratings.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

When entitlement to compensation already has been 
established, and an increase in the disability rating is at 
issue, the present level of disability is the primary 
concern.  Although a rating specialist is directed to review 
the recorded history of a disability to make a more accurate 
evaluation, the regulations do not give past medical reports 
precedence over current findings.  See Francisco v. Brown, 7 
Vet. App. 55 (1994); 38 C.F.R. § 4.2.

VA regulations require that disability evaluations be based 
upon the most complete evaluation of the condition that can 
be constructed with interpretation of examination reports, 
in light of the whole history, so as to reflect all elements 
of the disability.  Medical as well as industrial history is 
to be considered, and a full description of the effects of 
the disability upon ordinary activity is also required.  
Functional impairment is based on lack of usefulness and may 
be due to pain, supported by adequate pathology and 
evidenced by visible behavior during motion.  Many factors 
are to be considered in evaluating disabilities of the 
musculoskeletal system and these include pain, weakness, 
limitation of motion, and atrophy.  Painful motion with the 
joint or periarticular pathology, which produces disability, 
warrants the minimum compensation.  38 C.F.R. §§ 4.1, 4.2, 
4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 
(1995).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) 
does not forbid consideration of a higher rating based on 
greater limitation of motion due to pain on use, including 
prolonged use or during flare-ups.  Functional loss 
due to pain is rated at the same level as functional loss 
where motion is impeded.  Schafrath, 1 Vet. App. at 592.  
Pursuant to 38 C.F.R. § 4.59, painful motion should be 
considered limited motion, even though a range of motion may 
be possible beyond the point when pain sets in.  See Powell 
v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. 
App. 417, 421 (1995).  See also Burton v. Shinseki, 25 Vet. 
App. 1 (2011) (holding that application of 38 C.F.R. 4.59 is 
not just limited to cases where there is arthritis).

But that said, although pain may cause functional loss, pain 
itself does not constitute functional loss.  See Mitchell v. 
Shinseki, 25 Vet. App. 32, 38-43 (2011).  Rather, pain must 
affect some aspect of "the normal working movements of the 
body" such as "excursion, strength, speed, coordination, and 
endurance," in order to constitute functional loss.  Id.; 
see 38 C.F.R. § 4.40.  Also, a finding of functional loss 
due to pain must be supported by adequate pathology and 
evidenced by the visible behavior of the Veteran.  38 C.F.R. 
§ 4.40.  Moreover, if a Veteran is already receiving the 
maximum disability rating available based on symptomatology 
that includes limitation of motion, it is not necessary to 
consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  
Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
for the higher rating; otherwise, the lower rating will be 
assigned.  38 C.F.R. § 4.7.  All reasonable doubt material 
to the determination is resolved in the Veteran's favor.  38 
C.F.R. § 4.3.

Low Back Disability

During the pendency of this appeal, regulatory changes 
amended the VA Schedule for Rating Disabilities, 38 C.F.R. 
Part 4, including the criteria for rating disabilities of 
the spine.  Effective September 23, 2002, VA revised the 
criteria for rating IVDS, so after the filing of this claim 
at hand in June 1994.  67 Fed. Reg. 54,345 (Aug. 22, 2002).  
Effective September 26, 2003, VA again revised the criteria 
for rating general diseases and injuries of the spine.  68 
Fed. Reg. 51,454 (Aug. 27, 2003).  Disabilities and injuries 
of the spine are currently evaluated under 38 C.F.R. § 
4.71a, Diagnostic Codes 5235 through 5243.  The revised 
provisions of Diagnostic Code 5293 were redesignated as 
Diagnostic Code 5243 for IVDS, effective September 26, 2003.

The Board is required to consider the claim in light of both 
the former and revised schedular criteria to determine 
whether a higher rating is warranted for the lumbar spine 
disability.  VA's General Counsel has determined however 
that the amended rating criteria, if more favorable to the 
claim, only may be applied prospectively, so only for the 
periods from and after the effective date of the regulatory 
changes.  However, the Veteran gets the benefit of having 
both the former and revised regulations considered for the 
period after the change was made.  See VAOPGCPREC 3-2000 
(Apr. 10, 2000).  See also Kuzma v. Principi, 341 F.3d 1327 
(Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003).  
This guidance is consistent with longstanding statutory law, 
to the effect that an increase in benefits cannot be awarded 
earlier than the effective date of the change in law 
pursuant to which the award is made.  See 38 U.S.C.A. § 
5110(g).  See also 38 C.F.R. § 3.114.

Under Diagnostic Code 5292, in effect prior to September 26, 
2003, a 20 percent rating requires moderate limitation of 
lumbar spine motion.  A maximum 40 percent rating requires 
severe limitation of lumbar spine motion.

Under Diagnostic Code 5295, in effect prior to September 26, 
2003, a 20 percent rating was assigned for disability 
manifested by muscle spasm on extreme forward bending and 
loss of lateral motion, unilateral, in a standing position.  
A 40 percent evaluation was assigned for severe disability 
manifested by listing of the whole spine to the opposite 
side, a positive Goldthwaite's sign, marked limitation of 
forward bending in a standing position, loss of lateral 
motion with osteoarthritis changes, or narrowing or 
irregularity of joint space.  A 40 percent was also assigned 
if only some of these manifestations were present with 
abnormal mobility of forced motion.  A 40 percent rating is 
the highest schedular evaluation assignable under the former 
Diagnostic Code 5295.

Under Diagnostic Code 5293, in effect prior to September 23, 
2002, a 20 percent rating was assigned for IVDS if involving 
moderate, recurring attacks.  A 40 percent rating was 
assigned for severe IVDS manifested by recurring attacks 
with intermittent relief.  And a 60 percent rating was 
assigned for pronounced IVDS involving persistent symptoms 
compatible with sciatic neuropathy with characteristic pain 
and demonstrable muscle spasm, absent ankle jerk, or other 
neurological findings appropriate to the site of the 
diseased disc with attack with little intermittent relief.

Under the revised criteria, effective from September 23, 
2002, IVDS is evaluated either on the total duration of 
incapacitating episodes over the past 12 months or by 
combining under 38 C.F.R. § 4.25 separate evaluations of its 
chronic orthopedic and neurologic manifestations along with 
evaluations for all other disabilities, whichever method 
results in the higher evaluation.  See 38 C.F.R. § 4.71a, 
Diagnostic Code 5293, as amended by 67 Fed. Reg. 54345-54349 
(Aug. 22, 2002).

A 20 percent evaluation is assigned with incapacitating 
episodes of having a total duration of at least two weeks 
but less than four weeks during the past 12 months.  A 40 
percent evaluation is assigned with incapacitating episodes 
of having at total duration of at least four weeks but less 
than six weeks during the past 12 months.  A 60 percent 
evaluation is assigned with incapacitating episodes of 
having a total duration of at least six weeks during the 
past 12 months.  Id.; see also 38 C.F.R. § 4.71a, The Spine, 
Formula for Rating IVDS based on Incapacitating Episodes 
(same effect).

Note (1):  For purposes of evaluations under 5293, an 
incapacitating episodes is a period of acute signs and 
symptoms due to IVDS that requires bed rest prescribed by a 
physician and treatment by a physician. "Chronic orthopedic 
and neurologic manifestations" mean orthopedic and 
neurologic signs and symptoms resulting from IVDS that are 
present constantly, or nearly so.  Compare, 67 Fed. Reg. 
54345 (Aug. 22, 2002), effective September 23, 2002, and 
codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 
68 Fed. Reg. 51454 (Aug. 27, 2003), effective September 26, 
2003, [Diagnostic Code 5293 redesignated as 5243 and 
codified at 38 C.F.R. § 4,71a, The Spine, Formula for Rating 
IVDS based on Incapacitating Episode, Note (1) (same 
effect)].

Note (2):  When evaluating on the basis of chronic 
manifestations, evaluate orthopedic disabilities using 
evaluation criteria for the most appropriate orthopedic 
diagnostic code or codes.  Evaluate neurologic disabilities 
separately using evaluation criteria for the most 
appropriate neurologic code or codes.

Note (3):  If IVDS is presented in more than one spinal 
segment, provided that the effects in each spinal segment 
are clearly distinct, evaluate each segment on the basis of 
chronic orthopedic and neurologic manifestations or 
incapacitating episodes, whichever method results in a 
higher evaluation for that segment.

Under the revised criteria, effective from September 26, 
2003, disabilities of the spine will be evaluated under the 
General Rating Formula for Diseases and Injuries of the 
Spine or under the Formula for Rating IVDS based on 
Incapacitating Episodes, whichever method results in the 
higher evaluation when all disabilities are combined under § 
4.25.  38 C.F.R. § 4.71a, The Spine, General Rating Formula 
for Diseases and Injuries of the Spine, Note (6).

Under the General Rating Formula for Diseases and Injuries 
of the Spine, the following evaluations are assignable with 
or without symptoms such as pain (whether or not it 
radiates), stiffness, or aching in the area of the spine 
affected by residuals of injury or disease:

A 20 percent rating is warranted when forward flexion of the 
thoracolumbar spine is greater than 30 degrees, but not 
greater than 60 degrees, or the combined range of motion of 
the thoracolumbar spine is not greater than 120 degrees; or 
there is muscle spasm or guarding severe enough to result in 
an abnormal gait or abnormal spinal contour such as 
scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is warranted when forward flexion of the 
thoracolumbar spine is 30 degrees or less; or there is 
favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted if there is unfavorable 
ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted if there is unfavorable 
ankylosis of the entire spine (that is, when also 
considering the adjacent cervical segment).

See 38 C.F.R. § 4.71a, The Spine, General Rating Formula for 
Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 
5242.

For VA compensation purposes, normal forward flexion of the 
thoracolumbar spine is from zero to 90 degrees; backward 
extension is zero to 30 degrees; left and right lateral 
flexion are zero to 30 degrees; and left and right lateral 
rotation are zero to 30 degrees.  The combined range of 
motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and 
right rotation.  The combined normal range of motion of the 
thoracolumbar spine is 240 degrees.  The normal ranges of 
motion for each component of the spinal motion provided in 
this note are the maximum that can be used for calculation 
of the combined range of motion.  38 C.F.R. § 4.71a, The 
Spine, General Rating Formula for Diseases and Injuries of 
the Spine, Note (2) (See also Plate V).

A December 1998 x-ray of the spine showed minor focal 
degenerative disease at the L5-S1 with the lumbar spine 
otherwise within normal limits.  The Veteran was diagnosed 
with minor degenerative disease of the L5-S1.

An April 1999 VA examination reflects back pain, spasms, 
tenderness, "back locked in flexion," tenderness to the 
spinatous muscles, pronounced flattening of the lumbar 
curve.  The Veteran was diagnosed with DJD of the 
lumbosacral spine.

A June 2001 spine x-ray reflected moderately severe multi-
level disc degeneration.

A May 2002 VA examination noted that the Veteran was unable 
to engage in physical therapy.  There was tenderness to 
palpation over his lumbosacral spine processes and 
paraspinous region.  He was wearing a lumbar support brace 
and a TENS unit.  He was unable to perform the complete 
examination secondary to discomfort.  His gait was markedly 
antalgic.  Forward flexion was to 10 degrees, hyperextension 
was to 5 degrees, lateral bending was to 5 degrees 
bilaterally, and rotation was bilaterally to 15 degrees.  He 
was diagnosed with residual arthralgia of the lumbosacral 
spine.

A June 2002 x-ray of the spine was unremarkable.

A July 2006 VA examination for DJD of the lumbosacral spine 
reflects that he did not have any shrapnel injuries to the 
lower back, but had low back pain since he was in the 
hospital for an extended period of time recuperating from 
his lower torso injuries.  He was unable to do any bending 
due to throbbing pain.  The Veteran reported no radicular 
pain to the lower extremities from the back.  He had no 
incapacitating episodes in the last 12 months defined as a 
period of acute signs and symptoms due to intervertebral 
disk syndrome.  He had lower back pain that was a 10 out of 
10 (10 being the worst) all the time.  He complained of 
weakness, stiffness, swelling, heat, redness, instability, 
locking, fatigue, and lack of endurance.  Precipitating 
factors included turning left or right, bending up and down, 
light lifting, sneezing, and touching the lower back.  
Alleviating factors included a back brace, lying down, and 
pain medications.  Upon physical examination, there was a 
straightening of the lumbar lordosis.  There was no over 
scoliosis.  There was tenderness to palpation of the 
paravertebral musculature of the thoracolumbar spine without 
spasm.  Forward flexion was limited to 20 degrees, extension 
was -5 degrees, bilateral lateral flexion was 20 degree, and 
bilateral lateral rotation was to 20 degrees.  The Veteran 
was unable to do repetitive heel stands or walk on his 
heels.  Heel-shin maneuvers could not be done.  Heel-to-toe 
walking could not be done due to instability.  He was 
diagnosed with mild degenerative joint disease of the 
lumbosacral spine.  With regard Deluca, there was a 10 
degree loss of forward flexion and 5 degree loss of 
extension due to pain on repetitive use.  There was a mild 
excess fatigability, weakness, and lack of endurance but no 
incoordination of the lumbar spine.  Pain had a primary 
functional impact on the Veteran's lumbar spine.  

An August 2011 VA examination for the thoracolumbar spine 
reflects that the Veteran was diagnosed with osteoarthritis 
and degenerative intervertebral disc disease.  He stated 
that "I guess I got something wrong with my disc-something 
to do with the grenade blast."  (See discussion in July 2006 
C&P examination).  "Since that exam-it has been pretty much 
the same."  After about 3 to 4 hours being up, he needs to 
lie down for a period of time, but cannot be down too long 
as it bothers the back.  He stated that he could not turn or 
bend down.  The Veteran reported flare-ups, which required 
him to lie on his back all day.  Forward flexion was 20 
degrees (normal endpoint is 90) there was objective evidence 
of painful motion at 5 degrees.  Extension was 0 degrees 
(with normal endpoint is 30) with pain.  Right lateral 
flexion was 10 degrees (normal endpoint is 30).  Objective 
evidence of painful motion was 5 degrees.  Left lateral 
flexion was 10 degrees (normal endpoint is 30).  Right 
lateral rotation was 10 degrees with painful motion at 5 
degrees.  The left lateral rotation was 15 degrees.  There 
was objective evidence of painful motion at 10 degrees.  The 
Veteran was able to perform repetitive-use testing with 3 
repetitions, but had additional limitation in range of 
motion of the thoracolumbar spine (back) following 
repetitive-use testing.  Post-test forward flexion was 25 
degrees; post-extension was 0 degrees; right later flexion 
was 10 degrees; left lateral flexion 10 degrees; right 
lateral rotation was 10 degrees; left lateral rotations was 
10 degrees.  The Veteran had functional loss, functional 
impairment, and/or additional limitation of range of motion 
of the thoracolumbar spine after repetitive use.  
Specifically, he had less movement than normal; pain on 
movement; atrophy of disuse; interference with listing, 
standing and/or weight-bearing.  The Veteran had localized 
tenderness to pain to palpation for joint and/or soft tissue 
of the thoracolumbar spine.  He had no guarding or muscle 
spasm of the thoracolumbar spine.  Hip flexion, knee 
extension, ankle plantar flexion, ankle dorsiflexion, and 
great toe extension were all 3/5.  The Veteran had muscle 
atrophy-the normal side measured 30.5 cm and the atrophied 
side measured 27 cm.  Sensation to light touch was normal 
for the anterior thigh, thigh/knee, lower leg/ankle and 
decreased for the foot/toes.  He had positive straight leg 
raising.  He had radicular pain with severe constant pain.  
There was involvement in to the L2-L5 and S1-S3 nerve root.  
The Veteran had IVDS with no incapacitating episodes.  He 
used a brace, cane, and powered scooter.  The Veteran also 
had severe cervical DDD and osteoarthritis at L3-L4 and L5-
S1.  The spine condition impaired his ability to work.

This collective body of medical evidence shows the Veteran's 
low back disability is manifested by severe low back pain, 
tenderness of his entire back, an unsteady gait requiring 
the use of a cane and wheelchair, forward flexion ranging 
from 10 to 25 degrees with observable pain on motion, 
especially repetitive motion, and premature or excess 
fatigue, weakness, lack of endurance or incoordination.

The maximum rating for limitation of motion of the lumbar 
spine is 40 percent, assuming there is not ankylosis (which, 
in effect, as will be explained, means the Veteran cannot 
have any motion whatsoever), and he already has a 40 percent 
rating for his low back disability.  Where, as here, the 
Veteran already has the maximum rating assignable for 
limitation of motion (i.e., 40 percent under the former 
Diagnostic Code 5292 and now according to DCs 5235-5242 of 
the General Rating Formula for the Spine), additional 
consideration of the provisions of DeLuca is not required.  
See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Hence, a higher rating is not warranted under either version 
pertaining to limitation of lumbar spine motion.

In order to warrant a rating higher than 40 percent for this 
low back disability, the evidence must show the Veteran has 
unfavorable ankylosis of his entire thoracolumbar (thoracic 
and lumbar) spine, which would permit assigning a 50 percent 
rating under the General Rating Formula, or unfavorable 
ankylosis of his entire spine, that is, when additionally 
considering the adjacent cervical segment, which would 
permit assigning a 100 percent rating.  But he has neither.

Ankylosis is stiffening or fixation of the joint as the 
result of a disease process, with fibrous or bony union 
across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 
(1996) citing Dorland's Illustrated Medical Dictionary at 94 
(31st ed. 2007) (Ankylosis is "immobility and consolidation 
of a joint due to disease, injury, or surgical procedure."); 
see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  
See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing 
Saunders Encyclopedia and Dictionary of Medicine, Nursing, 
and Allied Health at 68 (4th ed. 1987)].

Note (5) in 38 C.F.R. § 4.71a, DCs 5235-5242, explains that, 
for VA compensation purposes, unfavorable ankylosis is a 
condition in which the entire cervical spine, entire 
thoracolumbar (thoracic and lumbar) spine, or the entire 
spine when considering all of these segments together is 
fixed in flexion or extension.  Fixation of a spinal segment 
in the neutral position (0 degrees) always represents 
favorable ankylosis (and parenthetically, even if shown, 
would at most warrant the 40 percent rating the Veteran 
already has).

There is no question he has what amounts to severe 
limitation of motion of his thoracolumbar spine, especially 
when considering the effect of his pain in further reducing 
his range of motion, particularly with prolonged or 
repetitive movements.  But it cannot be said that his spine, 
either the thoracolumbar segment or entire spine when 
additionally considering the adjacent cervical segment, is 
fixed in flexion or extension because he retains some 
measure of range of motion in all directions - forward 
flexion, backward extension, left and right later flexion 
(side bending), and left and right rotation (twisting).  By 
definition, then, his spine is not ankylosed even though he 
states that his back is "locked in flexion" and he could not 
"turn or bend down."  (See April 1999 VA examination and 
August 2011 VA examination).

There equally is not evidence of any episodes of 
incapacitation, meaning where bed rest was prescribed by a 
physician.  See Note (1) in DC 5243.  The mere fact that the 
Veteran has elected or felt the need to stay in bed and rest 
his low back at times in years past is not equivalent or 
even tantamount to concluding he has experienced an 
incapacitating episode according to the specific definition 
in this VA regulation, much less of the frequency and 
duration required to warrant a rating higher than 40 percent 
under this DC.  In fact, the July 2006 VA examiner stated 
the Veteran had no incapacitating episodes in the last 12 
months defined as a period of acute signs and symptoms due 
to IVDS.  He also does not have "prounounced" IVDS that 
would warrant a 60 percent rating under the former criteria, 
which require consideration of neurological symptoms 
appropriate to the site of the diseased disc and, in effect, 
consider the associated neurological impairment 
(radiculopathy/sciatica) in the rating for the low back 
disability itself.  During a July 2006 VA examination, the 
Veteran reported no radicular pain to his lower extremities 
from his back.  Although during his August 2011 VA 
examination he complained of radicular pain, he was not 
diagnosed with radiculopathy or sciatica.



Although lay persons are competent to provide opinions on 
some medical issues, see Kahana v. Shinseki, 24 Vet. App. 
428, 435 (2011), as to the specific issue in this case, the 
severity of a spine disability as defined by current and 
revised regulations, this falls outside the realm of common 
knowledge of a lay person.  See Jandreau v. Nicholson, 492 
F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not 
competent to diagnose cancer).

The criteria are not met for an initial rating higher than 
40 percent for the DDD of the lumbar spine.  And this has 
been the case since the filing of this claim, so the Board 
cannot "stage" this rating either under Fenderson.

In making this rating determination, the Board has 
considered the potential applicability of the benefit-of-
the-doubt doctrine, but the preponderance of the evidence is 
against assignment of any higher rating, so this doctrine 
has no application to the facts of this particular case.  
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; 
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Scars from the SFWs and Laparotmy

The Veteran has a 10 percent rating for a residual scar on 
his left thigh effective from August 9, 1982; 10 percent 
rating for a laparotomy scar effective from August 23, 1984; 
residual scars on his left heel rated as 10-percent 
disabling effectively since August 9, 1982; a 10 percent 
rating for residual scars on his left foot effectively since 
August 9, 1982; and SFW residual scars on his back, 
right foot, left knee, and left ankle rated as 
noncompensable effectively since October 17, 1970.

At the time he filed his claim in January 1998, Diagnostic 
Code 7804 provided a maximum 10 percent rating for scars 
that were superficial but tender and painful on objective 
demonstration.  38 C.F.R. § 4.118, DC 7804.  While this 
appeal was pending, the applicable rating criteria 
(Diagnostic Code 7804) for scars were twice revised.



Prior to August 30, 2002, the applicable rating criteria 
were:

Scars that are superficial, tender and painful on objective 
demonstration may be rated at a maximum rating of 10 percent 
disabling.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2002).

The Note for DC 7804 stated that:  "[t]he 10 percent rating 
will be assigned, when the requirements are met, even though 
the location may be on tip of finger or toe, and the rating 
may exceed the amputation value for the limited 
involvement."

Diagnostic Code 7802 for scars, burns, second degree 
provides a 10 percent rating for area or areas approximating 
1 square foot (0.1 m squared).  The Note states:  "See Note 
(2) under diagnostic code 7801."  Note (2) under DC 7801 
states: "Ratings for widely separated areas, as on two or 
more extremities or on anterior and posterior surfaces of 
extremities or trunk, will be separately rated and combined.

Effective August 30, 2002, the rating criteria became as 
follows:

Scars that are superficial and painful on examination may be 
rated at a maximum rating of 10 percent disabling.  38 
C.F.R. § 4.118, Diagnostic Code 7804 (2003).  A superficial 
scar was defined as one not associated with underlying soft 
tissue damage.

Effective October 23, 2008, and continuing currently, the 
rating criteria became as follows:

One or two scars that are unstable or painful are rated 10 
percent disabling.  Three or four scars that are unstable or 
painful are rated 20 percent disabling.  Five or more scars 
that are unstable or painful are rated a maximum of 30 
percent disabling.  An unstable scar was defined as one 
where, for any reason, there is frequent los of covering of 
skin over the scar.  If one or more scars are both unstable 


and painful, then an additional 10 percent is to be added to 
the rating based on the number of unstable or painful scars.  
38 C.F.R. § 4.118, Diagnostic Code 7804 (2012).

Note (2) states that: "If one or more scars are both 
unstable and painful, add 10 percent to the evaluation that 
is based on the total number of unstable or painful scars).

Note (3) states that: Scars evaluated under diagnostic codes 
7800, 7801, 7802, or 7805 may also receive an evaluation 
under this diagnostic code when applicable.

Diagnostic Code 7805 provides that Scars, other (including 
linear scars) and other effects of scars evaluated under 
diagnostic codes 7800, 7801, 7802, and 7804: Evaluate and 
disabling effects(s) not considered in a rating provided 
under diagnostic codes 7800-7804 under an appropriate 
diagnostic code.

Although the 2008 revision specifies that it applies to 
claims received after October 23, 2008, and allows for a 
claimant to ask for review of a scar disability under the 
new regulations without asserting that disability has 
increased, the Board does not interpret this language as 
limiting to the earlier criteria its review of an issue 
appealed from a pre-October 23, 2008 rating decision.  
Accordingly, the Board will consider applicable provisions 
of both the unrevised and revised provisions, although if an 
award is warranted under the revised provisions the award 
could only be effective as of the date of the revision.  See 
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) 
(overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 
(1991), to the extent it held that, where a law or 
regulation changes after a claim has been filed or reopened 
but before the administrative or judicial appeal process has 
been concluded, the version more favorable to appellant 
should apply).  

This scope of review is potentially more favorable to the 
Veteran than limiting review to the unrevised regulation.



Turning now to the facts of this particular case, an April 
1969 Narrative Summary, in part, stated that upon physical 
examination the Veteran had a well-healed abdominal and 
chest scar with a long leg cast placed on the right for a 
malaligned fracture of the right tibia and fibula.  There 
was a 3/4 inch by 3/4 inch scar on the right back at the 
inferior tip of the scapula.  He had a 7/5 inch midline 
laparotomy scar on the abdomen that was not hypertrophic.  
He had a 1.75 inch by .5 inch scar of the right lateral 
chest wall.  And, a 1.5 by 1.5 inch scar of the right 
lateral chest wall with a 1.25 by .5 inch scar of the right 
lateral thigh, 2 inch by .75 inch scar of the right leg 
laterally above the malleolus.  He had two scars on the 
dorsum of the right foot that were approximately 2 inches by 
.5 inches, a scar on the posterior left leg.  He had a 
pedicle graft that was 9.5 inches in length, 3.5 inches 
wide, anteriolateral aspect of the right leg.  There was a 
scar of the left heel lateral 1 by 1.5 inches.  He had a 
split thickness skin graft that was on the left thigh 8 
inches wide by 8 inches long.  The scar on left calf, which 
was donor site for the pedicle graft was hypertrophic was 
severely disfiguring, was approximately one-half square.  
There was a large scar on the back of the left calf that was 
tender, and painful on objective demonstration.  

A May 1970 Physical Evaluation Board Proceedings reflect, in 
part, that the Veteran had multiple scars that were 
superficial, tender, and painful of the left calf.

In an April 1984 written statement, the Veteran asserts that 
his laparotomy scar on his stomach was painful and numb to 
touch.  

In an undated written statement, the Veteran stated that his 
scars were tender and painful after walking or standing.  

A July 2006 VA examination for a left heel scar reflects 
that it was a dime size lesion with flaky skin.  There was 
no one scar identifiable on the left foot.  With regard to 
residuals of a laparotomy scar, the Veteran had exploratory 
laparotomy due to shrapnel penetration of the liver.  The 
Veteran believed that there were two pieces left, near the 
liver.  He complained of soreness of the lower laparotomy 
scar and a numbing pulling sensation of the upper aspect of 
the scar.  The laparotomy scar extended from the xiphoid to 
about 2 inches below the umbilicus.  The inferior aspect of 
the scar was tender but non-adherent, nondepressed, and non-
disfiguring.  The Veteran was diagnosed with residual scars 
of the left heel, foot, and laparotomy scar.  He was also 
diagnosed with extensive scarring of the bilateral lower 
extremities secondary to multiple surgical procedures and 
grafts.

An August 2011 VA examination reflects that the Veteran had 
14 scars.  Scar #1 on his chest.  There was no skin 
breakdown or pain.  Maximum width was 2 cm and maximum 
length was 5 cm.  The scar was less than 6 square in (39 sq 
cm).  The scar was not painful, there were no signs of skin 
breakdown, deep, no inflammation, no edema, or no keloid 
formation.  There were no other disabling effects.  The 
Veteran was diagnosed with scar post tube thoracotomy.  Scar 
#2 was located on his trunk.  The maximum width was 0.7 cm 
and maximum length was 5.4 cm.  The scar was not painful, 
there were no signs of breakdown; it was deep, but there was 
no inflammation, no edema, and no keloid formation.  There 
were no other disabling effects.  Scar #3 was located on the 
trunk the maximum width was 6 cm and length was 17.5 cm.  
The scar was not painful, there were no signs of skin 
breakdown; deep no inflammation. no edema, no keloid 
formation.  There were no other disabling effects.  Scar #4 
was located on the right lower extremity.  The maximum width 
was 2.0 cm and 3.5 cm for length.  The area of the scar was 
less than 6 sq. in.  The scar was not painful; nor were 
their signs of skin breakdown, inflammation, edema, or 
keloid formation.  Scar #5 was located on the right lower 
extremity.  The maximum width was 0.6 cm and 5.5 cm for 
length.  The scar was not painful; nor were their signs of 
skin breakdown, inflammation, edema, or keloid formation.  
Scar #6 was located on the right lower extremity.  The 
maximum width was 0.5 cm and 7.5 cm length.  The scar was 
not painful; nor were their signs of skin breakdown, 
inflammation, edema, or keloid formation.  Scar #7 was 
located on the right lower extremity.  The maximum width of 
the scar was 8 cm and 20 cm for the length.  The scar was 
not painful; nor were their signs of skin breakdown, 
inflammation, edema, or keloid formation.  Scar #8 was 
located on the right lower extremity.  The maximum width of 
the scar was 0.5 cm and maximum length was 2.0 cm.  The scar 
was not painful; nor were their signs of skin breakdown, 
inflammation, edema, or keloid formation.  Scar #9 was 
located on the right lower extremity.  The maximum width was 
2.0 cm and length was 6.5 cm.  The scar was not painful; nor 
were their signs of skin breakdown, inflammation, edema, or 
keloid formation.  Scar #10 was located on the left lower 
extremity.  The maximum width was 1.0 cm and the maximum 
length was 6.0 cm.  The scar was not painful; nor were their 
signs of skin breakdown, inflammation, edema, or keloid 
formation.  Scar #11 was located on the left lower 
extremity.  The maximum width was 2.0 cm and 3.5 cm.  The 
scar was not painful and there was no skin breakdown, deep, 
inflammation, edema, or keloid formation.  Scar #12 was 
located on the left lower extremity.  The maximum width was 
14 cm and length was 33 cm.  The scar was not painful; nor 
were their signs of skin breakdown, inflammation, edema, or 
keloid formation.  Scar #13 was located on the left lower 
extremity.  The maximum width was 1.0 cm and length was 1.0 
cm.  There was inflammation, edema, and keloid formation.  
There was also hypergranulation/ horny keratosis.  Scar #14 
was located on the left lower extremity.  The maximum width 
of the scar was 15 cm and length was 18 cm.  The scar was 
not painful, there were no signs of skin breakdown; and it 
was superficial.  There was no inflammation, edema, or 
keloid formation.  The VA examiner also found that there 
were no significant effects on occupation or ADLs.  He 
further stated that there was no scarring on the left foot.  

There are at least five or more painful, unstable scars.  
Note (1) repeats the definition of an unstable scar is one 
where, for any reason, there is frequent loss of covering of 
skin over the scar.  38 C.F.R. § 4.118 (2012).  Note (2) 
provides that if one or more scars are both unstable and 
painful, the rater is to add 10 percent to the evaluation 
that is based on the total number of unstable or painful 
scars.  Id.  Note (3) clarifies that scars evaluated under 
Diagnostic Code 7800, 7801, 7802, or 7805 may also receive 
an evaluation under Diagnostic Code 7804, when applicable.

Regarding the period prior to August 30, 2002, the Board 
finds that the scars were superficial and painful on 
objective demonstration when he filed is claim for an 
increased rating.  As such, the scars will remain properly 
accorded the maximum rating of 10 percent for this period.  
38 C.F.R. § 4.118, Diagnostic Code 7804 (2002).  



As for the intervening period from August 30, 2002 up to 
October 22, 2008, the Board finds that the scars were 
superficial and painful on examination.  As such, they are 
properly accorded the maximum rating of 10 percent for this 
intervening period.  38 C.F.R. § 4.118, Diagnostic Code 7804 
(2002).  No harm occurs to the Veteran by the application of 
the revised rating criteria, as this is the same rating he 
received under the earlier criteria.  See also Bernard v. 
Brown, 4 Vet. App. 384 (1993).

Regarding the period since October 23, 2008, in the 
regulations that became effective that day, there is clear 
intent to accord greater compensation based on the number of 
scars that are unstable and/or painful.  No harm occurs to 
the Veteran by the application of these revised rating 
criteria, as, for reasons discussed below, he receives a 
higher rating under these criteria.  As to the number of 
scars, the Veteran's testimony and the medical evidence 
indicate he has at least 5 painful scars from his SFWs.  
Even as a layman, he is competent to testify as to his 
consequent pain and to observe and describe these scars and 
their effects since this does not require any specialized 
medical knowledge, training, or expertise.  See Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 
Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).  His lay 
testimony concerning this also is credible, however, to in 
turn ultimately have probative value.  See Layno v. Brown, 6 
Vet. App. 465, 469 (1994) (distinguishing between competency 
("a legal concept determining whether testimony may be heard 
and considered") and credibility ("a factual determination 
going to the probative value of the evidence to be made 
after the evidence has been admitted")).  See also Rucker v. 
Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal 
concept determining whether testimony may be heard and 
considered by the trier of fact, whereas credibility is a 
factual determination going to the probative value of the 
evidence to be made after the evidence has been admitted.).

This evidence from him carries a lot probative value or 
weight, in applying the rating criteria effective from 
October 23, 2008.  In applying the benefit-of-the-doubt 
doctrine, the Board finds that the medical evidence confirms 
he has at least 5 (total) painful service-connected scars, 
which warrant a 30 percent rating with an additional 10 
percent added on to the 30 percent rating for unstable scars 
for a total rating of 40 percent.  38 U.S.C.A. §§ 1155, 5107 
(West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10 
(2011); 4.118, Diagnostic Code 7804 (effective 
October 23, 2008).  This is the maximum possible rating for 
five or more scars that are unstable or painful.  38 C.F.R. 
§  4.118, Diagnostic Code 7804 (2012).  A 10 percent 
disability rating for the scars will be granted prior to 
October 23, 2008, but a higher 40 percent rating as of 
October 23, 2008, for painful scars under Code 7804.  
The Board also has considered whether evaluation of the 
Veteran's disability under any other Diagnostic Code would 
avail him of an even higher or separate rating.  Separate 
and distinct manifestations attributable to the same injury, 
allow for compensation under different Diagnostic Codes.  
See Esteban, 6 Vet. App. 259; Fanning, 4 Vet. App. 225.  
Here, though, the Board is unable to identify other 
appropriate Diagnostic Codes that would address separate and 
distinct manifestations attributable to his scars.

Nor do any other skin ratings appear applicable.  Under 
various other rating criteria applicable to other types of 
scars during the period for appellate review, potential for 
higher ratings for such scars exists.  However, none of 
those criteria apply here.  For example, the evidence in 
this case does not show any limited motion or limited 
function associated with the Veteran's scars, or that the 
scars are deep (as opposed to superficial).  See 38 C.F.R. § 
4.118, Diagnostic Codes 7801, 7805 (2001).  Diagnostic Code 
7800 applies only to scars of the head, face, or neck, and 
is the only scar rating which considers any disfigurement.

Traumatic Arthritis of the Left and Right Knees

The Veteran asserts that his left and right knee 
disabilities should be rated higher because he has 
instability or giving away, sharp pain, swelling (4-5 times 
per week), and can only bend his left knee to about 15 
degrees.  (See January 1999 NOD).

The claims of entitlement to higher ratings under DC 5257 
(based on instability of his knees, apart from arthritis) 
are being remanded and therefore will not be discussed in 
this decision.  The Board will only address DCs 5003, 5010, 
5260, and 5261 pertaining to arthritis and consequent 
limitation of motion.

The Veteran's left knee arthritis is currently rated as 10-
percent disabling under 38 C.F.R. § 4.71a, DCs 5010, so on 
the premise that he has post-traumatic arthritis causing 
limitation of motion.  He has an additional (separate) 20 
percent rating under DC 5257 for left knee ligament 
instability as a residual of a SFW of this knee.  On the 
other hand, the rating for his right knee disability is 
entirely under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5257, 
so only on the premise of instability.  Unlike his left 
knee, he does not have a separate rating for his right knee 
under DCs 5003 and 5010, although he does have a separate 40 
percent rating for residuals of a through-and-through SFW of 
his right leg involving fractures of his tibia and fibula 
and complete paralysis of the peroneal nerve under DC 8521 
and an additional 10 percent rating under DC 7804 for 
residuals, so including a scar, of a SFW to his right thigh.

According to 38 C.F.R. § 4.71a, DC 5010, arthritis due to 
trauma, i.e., 
post-traumatic arthritis, if confirmed by X-ray, is rated as 
degenerative arthritis under DC 5003.

DC 5003 indicates degenerative arthritis (hypertrophic or 
osteoarthritis) will be rated on the basis of limitation of 
motion under the appropriate DCs for the specific joint or 
joints involved - which, here, since concerning the knee, 
are DC 5260 for limitation of knee and leg flexion and DC 
5261 for limitation of knee and leg extension.  Further 
according to DC 5003, when the limitation of motion of the 
specific joint or joints involved is noncompensable (i.e., 0 
percent) under the appropriate DCs, 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.  
Moreover, according to DC 5003, in the absence of limitation 
of motion, a 10 percent rating is warranted when there is X-
ray evidence of involvement of 2 or more major joints or 2 
or more minor joint groups.  A higher 20 percent rating 
requires X-ray evidence of involvement of 2 or more major 
joints or 2 or more minor joint groups, with occasional 
incapacitating exacerbations.

For purposes of rating disability from arthritis, the knee 
is considered a major joint.  38 C.F.R. § 4.45(f).

Normal range of motion of the knee is from 0 degrees of 
extension to 140 degrees of flexion.  38 C.F.R. § 4.71a, 
Plate II.

Under DC 5260, a 0 percent evaluation is awarded when 
flexion is limited to 60 degrees.  A 10 percent evaluation 
is awarded when flexion is limited to 45 degrees.  A 20 
percent evaluation is warranted when flexion is limited to 
30 degrees.  And a 30 percent evaluation is assigned when 
flexion is limited to 15 degrees.

Under DC 5261, a 0 percent rating is warranted when 
extension is limited to 5 degrees.  Compensable ratings for 
limitation of extension are assigned when extension is 
limited to 10 degrees (10 percent), 15 degrees (20 percent), 
20 degrees (30 percent), 30 degrees (40 percent) or 45 
degrees (50 percent).

VA's General Counsel has held that when a knee disability is 
rated under 38 C.F.R. § 4.71a, DC 5257, for "other" knee 
impairment including recurrent subluxation and lateral 
instability, and a Veteran also has limitation of knee 
motion that at least meets the criteria for a noncompensable 
evaluation under DC 5260 or 5261, separate evaluations may 
be assigned under DC 5257 for the recurrent subluxation and 
lateral instability and under DC 5003 for the arthritis 
causing limitation of motion under DC 5260 and/or 5261.  If 
a Veteran does not meet the criteria for a noncompensable 
rating under either DC 5260 or 5261, there is no additional 
disability for which a separate rating for arthritis may be 
assigned.  VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 
1997), published at 62 Fed. Reg. 63,604 (1997).  However, if 
a rating is assigned under the provisions for "other" knee 
impairment (38 C.F.R. § 4.71a, DC 5257), a separate 10 
percent rating may be assigned where there is X-ray evidence 
of arthritis and evidence of painful motion.  See VAOPGCPREC 
9-98 (August 14, 1998), published at 63 Fed. Reg. 56,704 
(1998); 38 C.F.R. § 4.59.  This is because, read together, 
38 C.F.R. § 4.59 and DC 5003 provide that painful motion of 
a major joint (and, again, for purposes of rating disability 
from arthritis, the knee is considered a major joint, 
see 38 C.F.R.§ 4.45(f)), arthritis is deemed to be limited 
motion and entitled to a minimum 10 percent rating even 
though there is no actual limitation.  See Lichtenfels v. 
Derwinski, 1 Vet. App. 484, 488 (1991). 
 
Separate ratings under DC 5260 (limitation of leg and knee 
flexion) and DC 5261 (limitation of leg and knee extension) 
also may be assigned for disability of the same joint.  
VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. 
Reg. 59,990 (2004).  Specifically, where a Veteran has both 
a limitation of flexion and a limitation of extension of the 
same leg, the limitations must be rated separately to 
adequately compensate for functional loss associated with 
injury to the leg.  Id.

Turning now to the relevant facts of this particular case.

A January 1969 STR noted left knee joint opened and 
irrigated.  A February 1969 STR noted multiple SFWs to the 
left knee with no artery or nerve involvement.  (See 
February 10, 1969 STR).

A May 1982 X-ray revealed narrowing of the left knee joint 
medially with associated subarticular sclerosis and marginal 
spurring.  There were several small metallic fragments in 
the soft tissues about the knee.

June 1983 radiographic x-rays of the knees demonstrated 
multiple small soft-tissue metallic fragments measuring up 
to 5 mm in diameter located adjacent to the medial femoral 
condyle and medial aspect of the fibular head.  On the right 
there were four such fragments in the soft tissues posterior 
and lateral to the proximal tibia shaft at approximately the 
level of the fibular head.  There was a little narrowing of 
the knee joint medially on the left with associated 
subarticular sclerosis and marginal spurring.  He had DJD of 
the left knee and multiple soft tissue metallic fragments 
bilaterally.  

An August 1998 VA examination noted shrapnel in the left 
knee and complaints of pain with weight bearing.  He 
ambulated around his house with a cane, but went to medical 
appointments in a wheelchair.  He stated that he could not 
stand for prolonged period due to pain in his knees and left 
foot.  With regards to the right knee, the Veteran reported 
moderate pain and instability.  The left knee had a 10 cm 
longitudinal curvilinear anterior scar.  There was a small 
effusion.  Range of motion was zero to 90 degrees.  There 
was moderate medial collateral ligamentous laxity with no 
crepitus.

An August 1998 VA examination noted retained shrapnel of the 
right knee.  Upon physical examination, the right knee was 
cool without effusion and range of motion was 0 to 192 
degrees with no gross ligamentous laxity.

A March 1999 VA treatment record noted increased left knee 
pain and crepitus.  The Veteran was diagnosed with traumatic 
arthritis of the left knee.

An April 2006 X-ray of the knees reflects medial joint space 
loss, mild degenerative changes, and left knee pain/weakness 
(possible internal derangement may have more advanced 
degenerative joint disease tha[n] radiographs suggest).  A 
June 2006 VA treatment record noted that the Veteran had 
used a scooter for approximately 15 to 20 years.  He was 
very limited in his ambulation for a variety of lower 
extremity and back/neck reasons.  

A June 2006 VA treatment record reflects complaints of pain 
and swelling of the left knee.  He denied locking, catching, 
and giving out/weakness.  Upon physical examination, there 
were no effusion, swelling, and laxity, negative anterior 
and posterior drawers.

A July 2006 VA examination for left knee with ligament 
laxity reflects complaints of left knee pain that was a 10 
out of 10 all the time.  He complained of fatigue and lack 
of endurance.  Precipitating factors included movement, 
sitting, standing, and swelling.  Medication was an 
alleviating factor.  With regard to ADLs, he could not walk 
or stand.  Upon physical examination, there was no heat, 
redness, or soft tissue swelling about the left knee.  There 
was no effusion.  The examiner was unable to demonstrate any 
left knee instability ligament laxity at 0 and 30 degrees of 
flexion.  Range of motion was from 0 degrees extension into 
120 degrees flexion.  He had 10 degrees internal and 
external rotation.  McMurray's sign was negative on the left 
knee.  The Veteran was diagnosed with mild DJD of the left 
knee.  There was no ligament laxity or instability of the 
left knee.  With regard to Deluca, there was a 20-degree 
loss of flexion due to pain repetitive use.  There was 
generalized fatigability, weakness, lack of endurance but no 
incoordination of the left knee.  Pain had a primary 
functional impact on the left knee.

A July 2006 VA examination for the right knee reflects 
complaints of retained mortar fragments.  The Veteran stated 
that his right knee was weaker than the left knee and that 
his pain averaged an 8 out of 10 (10 being the worst).  He 
complained of weakness, stiffness, swelling, heat, redness, 
instability, locking, fatigue, and lack of endurance.  
Precipitating factors for the right knee were standing, 
walking, and bending.  The right knee buckled under him.  
Alleviating factors included medication and minimal 
activity.  The Veteran wore a knee brace in the past, but 
was currently wheelchair bound.  Upon physical examination, 
there was no heat, redness, or soft tissue swelling.  There 
was full range of motion, to include 120 degrees flexion, 0 
degrees extension, 10 degrees internal and external 
rotation.  There was no ligament laxity to varus or valgus 
stress at 30 degrees flexion.  Anterior and posterior drawer 
signs were negative.  McMurray's sign was negative on the 
right knee.  Scar below the right knee was too extensive to 
measure (entire area below the right knee was scarred).  He 
also had extensive atrophy of his right lower extremity.  He 
also had a right foot drop.  He was diagnosed with multiple 
retained mortar fragments about the right knee with mild 
DJD.  With regard to Deluca, there was a 20 degree loss of 
flexion due to pain on repetitive use.  There was moderate 
fatigability, weakness and lack of endurance of the right 
knee but no incoordination.  Pain had a primary functional 
impact on the Veteran right knee.

A September 2010 VA treatment records reflects, via X-ray, 
that the Veteran had a slight interval progression of 
moderate left knee osteoarthritis that involved the medial 
femorotibial joint compartment.  There was no significant 
change in the mild right medial femorotibial joint space 
narrowing.  There was no radiographic evidence of acute 
osseous injury of either knee or bilateral small knee 
effusions.



An August 2011 VA joints examination of the knees reflects 
deformity, giving way, instability, pain, weakness, 
decreased joint motion, lack of endurance, locking episodes 
(several weekly), flare-ups of joint disease that was 
severe, weekly for 1 to 2 weeks.  He did not have stiffness, 
incoordination, or effusions.  The Veteran attributed the 
flare to motion, retained shrapnel fragment, and standing 
for short period of time.  The Veteran was diagnosed with 
crepitus, tenderness, pain at rest, and weakness.  He had no 
bumps consistent with Osgood-Schlatter's Disease, mass 
behind the knees, clicks or snaps, but had grinding, 
crepitation, and mild instability.  He had abnormal 
anterior/posterior cruciate ligament stability in 30 degrees 
of flexion (3 mm anterior motion).  His anterior/posterior 
cruciate ligament stability in 90 degrees of flexion was 
abnormal.  He had patellar spurring, but no meniscus 
abnormality.  For the left knee, flexion was to 83 degrees, 
extension of 0 degrees with objective evidence of pain.  For 
the right knee, flexion was to 94 degrees, extension was 
normal.  There was objective evidence of pain following 
repetitive motion.  There was no additional limitation after 
three repetitions of range of motion.  The Veteran was 
diagnosed with slight interval progression of moderate left 
knee osteoarthritis predominantly that involved medial 
femorotibial joint compartment.  There was no significant 
change in mild right medial femorotibial joint space 
narrowing; no radiographic evidence of acute osseous injury 
of either knee; or bilateral small knee joint effusions.  
The Veteran was diagnosed with traumatic arthritis of the 
left knee with residual SFWs and ligament instability and 
mild osteoarthritis of the right knee with residual SFWs.  
Occupationally, there was decreased mobility; difficulty 
with lifting, carrying, weakness or fatigue; and  decreased 
strength, and pain.  ADLs reflect, at the very least, severe 
impairment of chores and traveling; prevention of shopping, 
exercise, sports, recreation, and driving, and moderate 
impairment on dressing and mild impairment on feeding, 
bathing, toileting, and grooming.

This collective body of medical evidence shows the Veteran 
now suffers from osteoarthritis of both knees, so not just 
in his left knee.  And as already explained, according to 38 
C.F.R. § 4.71a, DC 5003, degenerative arthritis (to include 
hypertrophic or osteoarthritis), established by X-ray 
findings, will be rated on the basis of limitation of motion 
under the appropriate DCs for the specific joint or joints 
involved (here, DC 5260 for limitation of flexion of the leg 
and knee, and DC 5261 for limitation of extension of the leg 
and knee).  When, however, the limitation of motion of the 
specific joint or joints involved is noncompensable (meaning 
0-percent disabling) under the appropriate DCs, a 10 percent 
rating is assignable for each such major joint or group of 
minor joints affected by limitation of motion, to be 
combined, not added, under DC 5003.  See also 38 C.F.R. § 
4.71a, DC 5010 (indicating that arthritis due to trauma, 
substantiated by x-ray findings, should be evaluated as 
degenerative arthritis).  Limitation of motion must be 
objectively confirmed by findings such as swelling, muscle 
spasm, or satisfactory evidence of painful motion.  See DC 
5003.

The medical evidence of record establishes that the symptoms 
associated with the Veteran's left knee disability consist 
of painful motion, mild DJD with flexion of 120 degrees with 
a 20 degree loss of flexion due to pain on repetitive use 
during the July 2006 VA examination and flexion of 83 
degrees with normal extension during the September 2010 VA 
examination.  It was also noted that he had "moderate" 
left knee osteoarthritis with slight interval progression 
predominantly involved in the medial femoratibial joint 
space narrowing.  (See September 2010 VA examination).  With 
regard to the right knee, he had full range of motion with a 
diagnosis of mild DJD with 20 percent loss of flexion due to 
pain on repetitive motion during the July 2006 VA 
examination.  He had flexion of 94 degrees with normal 
extension and pain with repetitive motion, but no additional 
limitation after three repetitions.  He was diagnosed with 
mild osteoarthritis of the right knee.  (See September 2010 
VA examination).

While he also has complained of crepitus (described as a 
clicking or grinding sensation), such is not shown to result 
in additional functional loss.  The medical evidence has 
documented some instability/laxity for the right and left 
knee.  In fact, such apparently was the basis for the 
assignment of the 10 percent rating under DC 5257 for the 
right knee.  However, again, the claim for a higher rating 
under this DC for the instability component of the 
disability is being remanded for additional development and 
will be considered at a later time with the 
muscle-disability claims.



In the meantime, separate evaluation of the right knee 
disability under DC 5003 would result in no more than a 10 
percent evaluation.  The Board notes, initially, that the 
evidence does not show the Veteran has limitation of motion 
of his knees to a compensable degree.  As already alluded 
to, standard range of motion of the knee is from 0 to 140 
degrees (extension to flexion).  See Diagnostic Code 4.71, 
Plate II.  Although it is undisputed he has some limitation 
of motion in his right and left knees because of his 
osteoarthritis, there clearly is no basis for a compensable 
evaluation under either DC 5260 (requiring flexion limited 
to 45 degrees or less) or DC 5261 (requiring extension 
limited to 10 degrees or more).  Nevertheless, given his 
credible complaints of pain, which could, conceivably, limit 
his range of motion beyond that objectively shown, a 
separate 10 percent rating for his right knee is assignable 
under DC 5003 (consistent with 38 C.F.R. § 4.59).  See also 
Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 
the painful motion provisions of 38 C.F.R. § 4.59 are not 
limited solely to claims involving arthritis of a joint).  
Although he had 20 degrees of loss of flexion after 
repetitive use during the July 2006 VA examination, his 
flexion was to 120 degrees initially.  This decrease in 
range of motion is not evidence of functional loss of 
sufficient severity to warrant a higher disability 
evaluation, meaning exceeding 10 percent.  Moreover, he is 
not entitled to a rating exceeding 10 percent for either 
knee because there is no X-ray evidence of involvement of 2 
or more major joints or 2 or more minor joint groups with 
occasional incapacitating exacerbations.

Accordingly, the Board finds that a separate 10 percent 
rating under DC 5003/5010 for the right knee arthritis is 
warranted (like he already has for his left knee).  However, 
he is not shown to be entitled to any higher rating for 
either knee, at least not as concerning the arthritis 
component of his knee disabilities.  Furthermore, at no time 
since he filed these claims have the disabilities been more 
disabling because of the arthritis, in turn precluding the 
Board from "staging" these ratings.  Hart, supra.



Hepatitis C and Liver Laceration

The Veteran's Hepatitis C is currently evaluated as 60-
percent disabling effective February 5, 1998 under 38 C.F.R. 
§ 4.114, DC 7345, for chronic liver disease without 
cirrhosis, including Hepatitis C, and vagotomy with 
pyloroplasty or gastroenterostomy.  He had a noncompensable 
rating from October 17, 1970 to February 4, 1998.

In a February 2002 rating decision, he was awarded a 
separate rating for postoperative liver laceration 
residuals, effective July 2, 2001, which encompassed 
complaints of pulling in his back, a painful abdominal area, 
and findings of palpable adhesions.  (See July 2001 and 
February 2002 rating decisions).  He was assigned a 10 
percent rating for post-operative liver laceration residuals 
under DCs 7311-7301.  The RO assigned separate evaluations 
based on the date of the schedule revision, effective July 
2, 2001.  

There are diseases of the digestive system, particularly 
within the abdomen, which, while differing in the site of 
pathology, produce a common disability picture characterized 
in the main by varying degrees of abdominal distress or 
pain, anemia, and disturbances in nutrition.  Consequently, 
certain coexisting diseases in this area, as indicated in 
the instruction under the title "Diseases of the Digestive 
System," do not lend themselves to distinct and separate 
disability evaluations without violating the fundamental 
principle relating to pyramiding as outlined in 38 C.F.R. §§ 
4.14; 4.113. 
 
In turn, VA regulation provides that ratings under DCs 7301 
to 7329, inclusive; 7331, 7342, and 7345 to 7348, inclusive, 
will not be combined with each other.  Rather, a single 
evaluation will be assigned under the DC that reflects the 
predominant disability picture, with elevation to the next 
higher evaluation where warranted by the overall severity.  
See 38 C.F.R. § 4.114. 
 



During the pendency of this appeal, the criteria for rating 
diseases of the digestive system were amended.  These 
changes affected the evaluation of liver disorders and 
diseases.  See 66 Fed. Reg. 29,486-29,489 (effective July 2, 
2001) (codified at 38 C.F.R. § 4.114 (2004)).

Effective July 2, 2001, VA revised its criteria for rating 
disability of the digestive system, to include a renumbering 
of the DCs.  See 66 Fed. Reg. 29486-29489 (May 31, 2001).  
The Board may only consider and apply the "new" criteria as 
of the effective date of enactment, but may apply the "old" 
criteria for the entire appeal period.  38 U.S.C.A. § 
5110(g) (West 2002); VAOPGCPREC 3-2000 (Apr. 10, 2000).  
Under the "old" criteria, a closely analogous diagnostic 
code pertained to injury of the liver under Diagnostic Code 
7311.  A noncompensable rating was assigned for healed 
injury with no residuals.  38 C.F.R. § 4.114, Diagnostic 
Code 7311 (2000-01).  With residual disability, the 
disability was rated according to the criteria for 
peritoneal adhesions.  Id.  A 10 percent rating was 
warranted for moderate disability with pulling pain on 
attempting work or aggravated by movements of the body, or 
occasional episodes of colic pain, nausea, constipation 
(perhaps alternating with diarrhea) or abdominal distention.  
38 C.F.R. § 4.114, Diagnostic Code 7301 (2000-01). 
 
The revised criteria of Diagnostic Code 7311 indicated that 
residuals of liver injury were to be rated with respect to 
the specific residuals as adhesions of peritoneum 
(diagnostic code 7301), cirrhosis of liver (diagnostic code 
7312) and chronic liver disease without cirrhosis 
(diagnostic code 7345).  The criteria for Diagnostic Code 
7301 did not undergo a substantive change.  

Generally, in a claim for an increased rating, where the 
rating criteria are amended during the course of the appeal, 
the Board considers both the former and the current 
schedular criteria because, should an increased rating be 
warranted under the revised criteria, that award may not be 
made effective before the effective date of the change.  See 
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) 
(overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 
(1991), to the extent it held that, where a law or 
regulation changes after a claim has been filed or reopened 
but before the administrative or judicial appeal process has 
been concluded, the version more favorable to appellant 
should apply).  See also VAOPGCPREC 7-2003 (Nov. 19, 2003); 
VAOPGCPREC 3-2000 (April 10, 2000); 38 U.S.C.A. § 5110(g) 
(West 2002); 38 C.F.R. § 3.114 (2004); Rhodan v. West, 12 
Vet. App. 55, 57 (1998), appeal dismissed, No. 99-7041 (Fed. 
Cir. Oct. 28, 1999) (unpublished opinion) (although a 
liberalizing regulation cannot be applied retroactively 
unless the regulation contains language that permits it to 
be so applied, the Veteran does get the benefit of having 
both the old regulation and the new regulation considered 
for the period after the change was made during the pendency 
of the claim); 38 U.S.C.A. § 5110(g) (West 2002).

Therefore, the Board will review the disability under the 
old and new criteria.  The Board sees the RO evaluated the 
Veteran's claim under the old regulations in making its 
rating decision dated in December 1999 and July 2001.  
Whereas the RO considered the new rating criteria in its 
February 2002 rating decision.  The Veteran was afforded an 
opportunity to comment on the RO's action.  Accordingly, 
there is no prejudice to him under Bernard v. Brown, 4 Vet. 
App. 384 (1993).

His service-connected Hepatitis C is now evaluated as 60-
percent disabling under DC 7354 for Hepatitis C with 
postoperative liver laceration residuals.  It was rated as 
noncompensable from October 17, 1970 (previously DC 7399-
7311, postoperative liver laceration residuals only); and 
has been rated as 60-percent disabling effectively since 
February 05, 1998 (Hepatitis C only from July 2, 2001).  
When an unlisted condition is encountered it will be 
permissible to rate under a closely related disease or 
injury in which not only the functions affected, but the 
anatomical localization and symptomatology are closely 
analogous.  38 C.F.R. 4.20. 
 
Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 
7345 to 7348, inclusive, will not be combined with each 
other.  Instead, a single evaluation will be assigned under 
the diagnostic code that reflects the predominant disability 
picture, with elevation to the next higher evaluation where 
the severity of the overall disability warrants such 
elevation.  Of significance here are the new criteria for 
the evaluation of hepatitis C, now found under 38 C.F.R. § 
4.114, DC 7354 (2012).



Under the old regulations, effective prior to July 2, 2001, 
cirrhosis of the liver, 38 C.F.R. § 4.114, Diagnostic Code 
7312 (2001), and infectious hepatitis, DC 7354 (2001), could 
not be combined.  If a Veteran had both conditions, a single 
evaluation was assigned under the diagnostic code that 
reflected the predominant disability picture, and the rating 
was raised to the next higher level if the overall 
disability warranted.  38 C.F.R. § 4.114.  The probative 
medical evidence, including findings of the recent VA 
examination is not referable to cirrhosis of the liver.  
See 38 C.F.R. § 4.414, DC 7312, effective prior to and after 
July 2, 2001.  For evaluation under DC 7312, documentation 
of cirrhosis (by biopsy or imaging) and abnormal liver 
function tests must be present.  Id., effective July 2, 
2001.

Effective prior to and after July 2, 2001, weight loss 
remains a criterion for a higher disability rating under DCs 
7312 and 7345; additionally, the provisions of 38 C.F.R. § 
4.112, prior to July 2, 2001, concerning weight loss, are 
applicable to this issue and have been changed.  Minor 
weight loss or greater losses of weight for periods of brief 
duration are not considered of importance in rating.  38 
C.F.R. § 4.112 (2001), effective prior to July 2, 2001.  
Rather, weight loss becomes of importance where there is 
appreciable loss that is sustained over a period of time.  
Id.  In evaluating weight loss generally, consideration will 
be given not only to standard age, height, and weight 
tables, but also to the particular individual's predominant 
weight pattern as reflected by the records.  Id.  The use of 
the term "inability to gain weight" indicates that there has 
been a significant weight loss, with inability to regain it 
despite appropriate therapy.  Id. 
 
Under the current regulations, effective July 2, 2001, VA 
revised section 4.112, pertaining to weight loss.  38 C.F.R. 
§ 4.112 (2004), effective July 2, 2001.  The revised version 
of § 4.112 adds definitions of "substantial weight loss, 
minor weight loss, inability to gain weight, and baseline 
weight" to be used in diagnostic codes found under section 
4.114.  Under the revised regulation:

For purposes of evaluating conditions in § 4.114, the term 
"substantial weight loss" means a loss of greater than 20 
percent of the individual's baseline weight, sustained over 
three months or longer; and the term "minor weight loss" 
means a weight loss of 10 to 20 percent of the individual's 
baseline weight, sustained for three months or longer.  The 
term "inability to gain weight" means that there has been 
substantial weight loss with inability to regain it despite 
appropriate therapy.  "Baseline weight" means the average 
weight for the two-year- period preceding onset of the 
disease.  38 C.F.R. § 4.112 (2004).

Under old regulations, effective prior to July 2, 2001, for 
DC 7345, which evaluates hepatitis C, a 30 percent rating 
was assigned for minimal liver damage with associated 
fatigue, anxiety, and gastrointestinal disturbance of lesser 
degree and frequency but necessitating dietary restriction 
or other therapeutic measures.  38 C.F.R. § 4.114, DC 7345 
(2001), effective prior to July 2, 2001.  A 60 percent 
evaluation was warranted for moderate liver damage and 
disabling recurrent episodes of gastrointestinal 
disturbance, fatigue, and mental depression.  Id.  Finally, 
a 100 percent rating was assigned for marked liver damage 
manifested by liver function test and marked 
gastrointestinal symptoms, or with episodes of several weeks 
duration aggregating three or more a year and accompanied by 
disability symptoms requiring rest therapy.  Id.

Under the current regulations, effective July 2, 2001, for 
DC 7354, for evaluating hepatitis C, reflects that a 40 
percent evaluation is warranted for daily fatigue, malaise, 
and anorexia, with minor weight loss and hepatomegaly; or 
incapacitating episodes (with symptoms such as fatigue, 
malaise, nausea, vomiting, anorexia, arthralgia, and right 
upper quadrant pain) having a total duration of at least 
four weeks, but less than six weeks, during the past 12-
month period.  38 C.F.R. § 4.114, DC 7354 (2004), effective 
July 2, 2002.

A 60 percent evaluation is assigned for daily fatigue, 
malaise, and anorexia, with substantial weight loss (or 
other indication of malnutrition), and hepatomegaly; or 
incapacitating episodes (with symptoms such as fatigue, 
malaise, nausea, vomiting, anorexia, arthralgia, and right 
upper quadrant pain) having a total duration of at least six 
weeks during the past 12-month period, but not occurring 
constantly.  Id.

A 100 percent evaluation is assigned for near-constant 
debilitating symptoms (such as fatigue, malaise, nausea, 
vomiting, anorexia, arthralgia, and right upper quadrant 
pain).  Id.

For purposes of rating Hepatitis C, an "incapacitating 
episode" means a period of acute signs and symptoms severe 
enough to require bed rest and treatment by a physician.  38 
C.F.R. § 4.114, Diagnostic Code 7354 Note (2) (2012).

In order for the Veteran to receive the next higher rating 
of 100 percent under DC 7345, the disability picture 
associated with his service-connected Hepatitis C must more 
nearly approximate near constant debilitating symptoms such 
as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, 
and right upper quadrant pain.  See also 38 C.F.R. § 4.7.  
However, no such disability picture is shown by the 
evidence.

A February 1969 STR noted that he had a small liver 
perforation.  He had drains that were removed and a suture.  
(See also February 10, 1969 STR).

A June 1983 radiographic report noted no enlargement of the 
liver.

An August 1998 VA treatment record noted a history of 
abnormal liver tests and thrombocytopenia. 

A December 1998 VA treatment record noted that liver 
function tests normalized with abstinence.  He did not 
require any therapy at that time.

An August 1998 VA examination noted that the liver was 12 cm 
to percussion, not palpable below costal margin.  There was 
no rebound, guarding or shifting of fluid wave.  Another 
August 1998 VA treatment record noted a history of abnormal 
liver tests and thrombocytopenia.  The liver was not 
palpable below the costal margin.  X-ray of the abdomen was 
normal and liver function tests were normal.

A September 1999 VA treatment record noted elevated liver 
function tests.

An August 2001 VA examination noted elevated liver function 
test results with complaints of severe fatigue, daily 
morning nausea, vomiting every other day, pulling in back, a 
painful abdominal area, colic every other day with nausea, 
fever once a month, slight abdominal distention, and taking 
pain medications.  The VA examiner noted that the Veteran 
weighed 144 pounds, 5 ft. 8 inches tall, had a jaundiced 
appearance, a soft abdomen with palpable adhesions, bowel 
sounds present in all quadrants, tenderness in all four 
quadrants on palpation, and palpable enlargement of the 
liver at the right upper quadrant.

A July 2006 VA examination for the liver reflects that the 
Veteran had multiple blood transfusions for his in service 
injuries.  He stated that his liver function tests elevated 
over the years and in 2001 he was diagnosed with hepatitis 
C.  He had never had a liver biopsy or has been treated for 
hepatitis C, but was told that he had cirrhosis.  He 
complained of fatigue, malaise, vomiting (4 to 5 times in 
the morning), nausea, poor appetite, general arthralgia, and 
right upper quadrant discomfort on a daily basis.  The 
examiner stated that it was unclear whether the symptoms 
were severe enough that any physician ever prescribed bed 
rest and treatment.  The Veteran was diagnosed with chronic 
hepatitis C.

An August 2007 VA treatment records reflect that the Veteran 
had high viral load with suspected cirrhosis.  He was 
referred for a clinical evaluation of elevated AFP-25.  He 
did not have any problems with his liver or GI tract.  His 
weight had been stable.  He reported no history of 
intravenous drug use. 

An April 2011 VA treatment record reflected that the 
Veteran's hepatitis C was still active and he elected to go 
untreated in light of his autoimmune disorder.

In a June 2011 VA treatment record, the Veteran denied 
fevers, hematemesis, abdominal pain, diarrhea, jaundice and 
melena.

An August 2011 VA examination of the gall bladder and liver 
reflects a history of liver trauma.  The Veteran had a liver 
laceration with three shrapnel pieces removed during 
service.  He had no incapacitating episodes during the past 
12 months.  There was a history of chronic liver disease.  
There were no extra-hepatic manifestations of the Veteran's 
liver disease.  He had daily fatigue, near-constant malaise, 
intermittent nausea, intermittent vomiting, and near-
constant anorexia.  There was no evidence of malnutrition 
and his abdominal examination was normal.  The Veteran was 
diagnosed with chronic hepatitis C.  There were no effects 
of the problem on usual daily activities.  The Veteran was 
also diagnosed with a liver laceration s/p surgical repair.  
There were no significant effects on ADLs.

A September 2011 VA treatment record noted that the Veteran 
had a history of high viral HCV genotype 1BB and was 
suspected to have liver cirrhosis.  His AFP had been 
steadily increasing over several years; however, last CT 
abdomen in September 2010 did not show liver masses.  No 
therapy for HCV infection was initiated due to psoriatic 
flare.

The medical evaluation and treatment records discussed above 
are entitled to probative weight and provide evidence 
against the Veteran's claim.  His testimony and statements 
are credible and also entitled to probative weight, but they 
are outweighed by the medical evidence of record, which 
shows his symptoms are not near-constant and debilitating.

Under the former criteria, a 100 percent rating is clearly 
not warranted because marked liver damage manifested by 
liver function tests and marked gastrointestinal symptoms, 
or with episodes of several weeks duration, aggregating 
three or more a year, and accompanied by disabling symptoms 
requiring rest therapy is not shown by the evidence of 
record.  The Veteran's gastrointestinal problems as related 
to the Hepatitis C have not required rest therapy nor have 
they been shown to be of several weeks' duration, 
aggregating three or more a year.  38 C.F.R. § 4.114, 
Diagnostic Codes 7311, 7312, 7343, 7344, and 7345, effective 
prior to July 2, 2001.

As noted, effective July 2, 2001, Diagnostic Code 7345 was 
amended and is currently used to rate chronic liver disease 
without cirrhosis, excluding Hepatitis C.  DC 7354 now 
contains criteria for evaluating Hepatitis C.  DC 7311 is 
for residuals of liver injury, DC 7312 is for cirrhosis, and 
DC 7313 is for liver abscess.

Under the new regulations, currently in effect, Hepatitis C 
is evaluated under Diagnostic Code 7354, and a 60 percent 
evaluation is assigned for daily fatigue, malaise, and 
anorexia, with substantial weight loss (or other indication 
of malnutrition), and hepatomegaly; or incapacitating 
episodes (with symptoms such as fatigue, malaise, nausea, 
vomiting, anorexia, arthralgia, and right upper quadrant 
pain) having a total duration of at least six weeks during 
the past 12-month period, but not occurring constantly.  A 
100 percent evaluation is assigned for near- constant 
debilitating symptoms (such as fatigue, malaise, nausea, 
vomiting, anorexia, arthralgia, and right upper quadrant 
pain). VA regulation also provide that sequelae, such as 
cirrhosis or malignancy of the liver, are to be evaluated 
under an appropriate diagnostic code, but the same signs and 
symptoms cannot be used as the basis for evaluation under DC 
7354 and under a diagnostic code for sequelae.  38 C.F.R. §§ 
4.114; DC 7354, Note (1) (2004).

While the records also show the Veteran reported symptoms 
such as daily fatigue, near-constant malaise, intermittent 
nausea, intermittent vomiting, and near-constant anorexia, 
they do not support a higher 100 percent rating under DC 
7345.  As explained, in order to meet the requirements for 
this higher 100 percent rating, he must have near-constant 
debilitating symptoms such as fatigue, malaise, nausea, 
vomiting, anorexia, arthralgia, and right upper quadrant 
pain.  38 C.F.R. § 4.114.

Although he has reported experiencing some of these symptoms 
such as fatigue, nausea, vomiting, and epigastric pain, with 
some on a near-constant basis such as malaise and anorexia, 
the objective medical evidence has shown them to be, 
at most, moderately disabling.  For example, the August 2011 
VA examiner found that there was no evidence of malnutrition 
and the Veteran's abdominal examination was normal.  
Further, there were no effects of the problem on ADLs.  This 
evidence militates against a finding of near-constant and 
debilitating symptoms.  The records concerning his 
evaluation and treatment do not show evidence of 
malnutrition or unintended weight loss.  In fact, the August 
2007 VA treatment record noted that his weight had been 
stable.  There is no evidence of record that he has 
anorexia, as his weight has remained essentially constant.  
The record shows he uses a wheel chair, but this has not 
been attributed to his service-connected Hepatitis C.  See 
Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA 
adjudicators must be able to distinguish, by competent 
medical evidence, the extent of symptoms that is due to 
service-related causes, i.e., 
service-connected disability, from that which is not).  
Accordingly, the evidence supports at most a 60 percent 
rating for his Hepatitis C.  38 U.S.C.A. § 5107(b), Gilbert 
v. Derwinski, 1 Vet. App. at 53.

The Board recognizes that the August 2001 VA examiner noted 
the Veteran demonstrated tenderness in all four quadrants on 
palpation, and palpable enlargement of the liver at the 
right upper quadrant.  The August 2011 VA examiner stated 
there was no history of chronic liver disease.  Therefore, a 
higher rating under 7312 (cirrhosis of the liver) is not 
warranted.  

With regards to a liver laceration, the post-operative liver 
laceration residuals are manifested by pulling in the back, 
a painful abdominal area, and findings of palpable 
adhesions.  Such symptomatology falls squarely within the 
scheduler criteria for 10 percent rating under DCs 7311-7301 
(2001).

Finally we note that, in view of the holding in Hart, supra, 
the Board has considered whether the Veteran is entitled to 
a "staged" rating for his service-connected Hepatitis C and 
liver laceration disabilities, as the Court indicated can be 
done in this type of case.  He has not shown the required 
variance in the severity of his disability to warrant the 
staging of his rating, however.

The Board finds that the evidence clearly does not represent 
near-constant and debilitating symptoms as required for the 
next higher 100 percent disability rating for Hepatitis C, 
nor a rating exceeding 10 percent for residuals of the liver 
laceration.  Therefore, the preponderance of the evidence is 
against these claims, in turn meaning the benefit- of-the-
doubt rule does not apply, and these claims must be denied.  
38 C.F.R. § 4.3.

Hemorrhoids

The RO granted service connection for hemorrhoids and 
assigned a noncompensable rating effective from February 5, 
1998.  The Veteran seeks an increased rating and asserts his 
hemorrhoids are more severe than what is contemplated by a 
noncompensable rating. 



Hemorrhoids are rated under 38 C.F.R. § 4.114, Diagnostic 
Code 7336.  Under Diagnostic Code, 7736, mild or moderate 
hemorrhoids are noncompensable.  See 38 C.F.R. § 4.114, 
Diagnostic Code 7336.  The criteria for the next higher 
rating, 10 percent, are external or internal hemorrhoids 
that are large or thrombotic, irreducible, with excessive 
redundant tissue, evidencing frequent recurrences.  Id.  The 
criteria for a 20 percent rating, the maximum schedular 
rating, are hemorrhoids with persistent bleeding with 
secondary anemia or with fissures.  Id.

The Veteran asserts he has itchy burning anal pain and 
bleeding after using the toilet.  (January 1999 NOD).

The August 1998 VA examination noted that the rectal areas 
revealed wasting of the right gluteus maximus muscle with 
external hemorrhoids.  The Veteran was diagnosed with 
external hemorrhoids secondary to gluteus maximum muscle 
trauma in service with resulting atrophy and prolonged 
bedridden status associated with recovery from shrapnel 
injuries.

A July 2006 VA examination for hemorrhoids reflects that the 
Veteran had anoscopy 4 years prior.  He was not constipated 
and has not had surgery.  He had occasional bleeding and his 
rectal area was itchy.  He used medicated Vaseline products 
and Tucks pad.  There was no functional impact other than an 
annoyance on his ADLs.  Upon physical examination, there 
were no external hemorrhoids.  The Veteran was diagnosed 
with internal hemorrhoids.

A June 2011 VA treatment record reflects that the Veteran 
had hemorrhoids and occasionally bled when he wiped.

In an August 2011 VA examination, the examiner noted that 
the Veteran's hemorrhoids were intermittent with remissions.  
He used medicated Vaseline for treatment.  He had occasional 
rectal bleeding, but no anal itching, burning, diarrhea, 
difficulty passing stoo1, pain, tenesmus, or swelling.  He 
had a recurrence without thrombosis 2 times per year.  There 
was no history of fecal incontinence or perianal discharge.  
There was no anorectal fistula, stricture, or rectal 
prolapse.  Hemorrhoids were not present upon examination and 
had no effect on ADLs.

The evidence does not demonstrate that the Veteran's 
hemorrhoids have been irreducible with excessive redundant 
tissue and frequent recurrences; therefore, the findings do 
not more nearly approximate or equate to the criteria for a 
10 percent rating, the minimal compensable rating under 
Diagnostic Code 7336. 
 
The Board acknowledges the Veteran's statements that his 
hemorrhoid disability is more severe than what is 
represented by a noncompensable rating.  The Board notes 
that the Veteran is competent to give evidence about what he 
experiences; for example, he is competent to discuss current 
pain and other experienced symptoms.  See Layno v. Brown, 6 
Vet. App. 465 (1994).  Furthermore, the Board finds the 
Veteran's testimony to be credible.  See Barr v. Nicholson, 
21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 
Vet. App. 362, 368-69 (2005).  However, while the Veteran is 
competent to describe his symptoms, the combination of his 
lay statements and his VA physical examinations fails to 
demonstrate that he meets the criteria for the assignment of 
a 10 percent rating. 
 
The Board has also considered whether the manifestations of 
the Veteran's hemorrhoids warrant a separate rating under 
other diagnostic codes for the rectum.  See 38 C.F.R. § 
4.114, Diagnostic Codes 7332-7335 (2012).  The evidence of 
record shows that the Veteran does not have a mild prolapsed 
rectum with constant slight or occasional moderate leakage, 
stricture of the anus with moderate reduction of lumen or 
moderate constant leakage, impairment of sphincter control 
or fistula in ano.  Thus, the Veteran is not entitled to a 
higher disability rating or separate rating under Diagnostic 
Codes 7332, 7333, 7334, and 7335.

At no time has this service-connected condition been more 
disabling than as currently rated, so the Board cannot stage 
the rating.  Hart, supra.

The Board finds the current noncompensable rating 
appropriately addresses the severity of the Veteran's 
symptoms.  As the preponderance of the evidence is against 
the claim, the benefit of the doubt rule is inapplicable.  
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. 
Derwinski, 1 Vet. App. 49, 54-56 (1990).

Extra-schedular Consideration

There is no evidence of exceptional or unusual circumstances 
to warrant referring these claims for extra-schedular 
consideration.  38 C.F.R. § 3.321(b)(1).

Ordinarily, the VA Rating Schedule will apply unless there 
are exceptional or unusual factors that would render 
application of the schedule impractical.  See Fisher v. 
Principi, 4 Vet. App. 57, 60 (1993).

The question of an extra-schedular rating is a component of 
a claim for an increased rating.  See Bagwell v. Brown, 9 
Vet. App. 337, 339 (1996). And although the Board may not 
assign an extra-schedular rating in the first instance, it 
must specifically adjudicate whether to refer a case for 
extra-schedular evaluation when the issue either is raised 
by the claimant or reasonably raised by the evidence of 
record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Court has clarified the analytical steps necessary to 
determine whether referral for extra-schedular consideration 
is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008), 
aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  
First, there must be a determination of whether the evidence 
presents such an exceptional disability picture that the 
available schedular evaluation for the service-connected 
disability is inadequate.  Second, if the schedular 
evaluation does not contemplate the Veteran's level of 
disability and symptomatology and is found inadequate, there 
must be a determination of whether the Veteran's exceptional 
disability picture exhibits other related factors such as 
those provided by the regulation as "governing norms."  
Third, if the rating schedule is inadequate to evaluate a 
Veteran's disability picture and that picture has attendant 
thereto related factors such as marked interference with 
employment or frequent periods of hospitalization, then the 
case must be referred to the Under Secretary for Benefits or 
the Director of the Compensation and Pension Service to 
determine whether, to accord justice, the Veteran's 
disability picture requires the assignment of an extra-
schedular rating under 38 C.F.R. § 3.321(b)(1).

The Board finds no such evidence in this particular 
instance, however.  The Veteran's complaints related to his 
low back, scars on his left foot and heel, residuals of the 
laparotomy, post-operative liver laceration, traumatic 
arthritis of his right and left knees, Hepatitis C, and 
hemorroids are considered under the appropriate DCs.  His 
primary symptoms are arthritic pain and consequent 
limitation of motion, a pulling sensation in his back, 
painful abdominal area, palpable adhesions, fatigue, 
malaise, nausea, vomiting, occasional bleeding from his 
rectal area and itchiness, tender painful scars, and limited 
range of motion, painful motion, subluxation, and 
instability of the bilateral knees.  All of his symptoms are 
accounted for in the regular schedular rating criteria.  
According to 38 C.F.R. § 4.1, generally, the degrees of 
disability specified in the Rating Schedule are considered 
adequate to compensate for considerable loss of working time 
from exacerbations or illnesses proportionate to the 
severity of the several grades of disability.  Indeed, in 
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court 
reiterated this, noting the disability rating, itself, is 
recognition that industrial capabilities are impaired.

Moreover, although he was initially hospitalized when the 
original injuries occurred, owing to their gravity, the 
overwhelming majority of the evaluation and treatment for 
these disabilities he has received since has been on an 
outpatient basis, not instead as an inpatient, certainly not 
frequent inpatient.  Thus, as the assigned schedular 
evaluations for these service-connected disabilities are 
adequate, referral for an extra-schedular rating is 
unnecessary.  Thun, supra.  See also Bagwell v. Brown, 9 
Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 
96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); 
and VAOPGCPREC 6-96 (August 16, 1996). 




ORDER

The claim for an initial rating higher than 40 percent for 
the DJD of the lumbar spine is denied.

Prior to October 23, 2008, a rating higher than 10 percent 
for the painful scars from the SFWs and laparotomy is 
denied.

But as of October 23, 2008, a higher 40 percent rating is 
granted for the scars from the SFWs and laparotomy, subject 
to the statutes and regulations governing the payment of VA 
compensation.

The claim of entitlement to a rating higher than 10 percent 
for the left knee traumatic arthritis is denied.

But a separate 10 percent rating is granted for the 
osteoarthritis and consequent painful motion of the right 
knee, subject to the laws and regulations governing the 
payment of compensation.

A rating higher than 10 percent for the post-operative liver 
laceration residuals is denied.

A rating higher than 60 percent for the Hepatitis C is 
denied.

A compensable rating for the hemorrhoids is denied.




REMAND

Unfortunately, the remaining claims again must be remanded.  
Although the Board sincerely regrets the additional delay 
that inevitably will result, it is necessary to ensure there 
is a complete record upon which to decide these remaining 
claims so the Veteran is afforded every possible 
consideration.

At the time of the VA examination in August 2011, the VA 
examiner found no active evidence of seborrheic dermatitis.  
The Veteran was diagnosed with seborrheic dermatitis not 
present on examination and plaque psoriasis with psoriatic 
arthritis.  A remand for a new VA examination during a 
flare-up of the seborrheic dermatitis, if possible, is 
required.  See 38 U.S.C.A. § 5103A(d) (West 2002); "A remand 
by . . . the Board confers on the Veteran or other claimant, 
as a matter of law, the right to compliance with the remand 
orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998); 
Barr v. Nicholson, 21 Vet App 303 (2007) (holding that when 
VA undertakes to provide the Veteran with an examination, it 
must insure the examination is adequate); Ardison v. Brown, 
6 Vet. App. 405 (1994) (holding that when evidence reflects 
that a disability has a history of remission and recurrence, 
the duty to assist requires that any examination be given 
during an active stage of the condition); Caffrey v. Brown, 
6 Vet. App. 377 (1994) (holding that when a claimant asserts 
that the severity of a disability has increased since the 
most recent rating examination, an additional examination is 
appropriate).  The Veteran's cooperation in scheduling 
another VA skin examination in order to ascertain the 
severity of his service-connected skin conditions during a 
flare-up or when they are active is essential in permitting 
a VA compensation examiner to ascertain the nature and full 
extent of the disorders.

In Ardison v. Brown, 6 Vet. App. 405 (1994), the Court held 
that VA was obligated to evaluate tinea pedis, a skin 
condition, while in an "active stage" of the disease 
in order to fulfill the duty to assist.  In Voerth v. West, 
13 Vet. App. 117 (1999), however, the Court stated that a 
new examination was warranted in Ardison because active 
tinea pedis was a condition that would exist for weeks or 
months.  The holding in Ardison did not apply in Voerth 
because an orthopedic disability is different from a skin 
condition.  A flare-up lasting only one or two days not only 
renders a new VA examination impractical, but a "person who 
experiences a worsened condition only for a few days out of 
a year simply is less impaired than someone who suffers from 
the worsened condition for weeks or months."  Voerth, at 
123.

This claim concerning the rating for the skin condition at 
hand is more akin to the situation in Ardison, if indeed not 
identical to it, requiring the scheduling of this additional 
VA compensation examination.

With regards to the right elbow disability, the Veteran 
claims this disability is secondary to his service-connected 
seborrheic dermatitis.  He was also diagnosed with plaque 
psoriasis with psoriatic arthritis, which subsequently was 
determined service connected in a September 2012 rating 
decision (the RO assigned a 10 percent rating effective 
April 28, 2005).  The VA examiner did not provide an 
etiology opinion as to whether the alleged elbow disorder 
(claimed as tendonitis) was related to the service-connected 
seborrheic dermatitis or psoriatic arthritis.  This claim 
therefore must be remanded for the necessary medical comment 
concerning this.  See Stegall and Barr, supra.

With regard to the issues concerning the SFWs to the left 
ankle, left knee, right knee, and left upper extremity above 
the elbow, the medical evidence of record reflects that the 
Veteran has retained foreign bodies in these areas requiring 
consideration of entitlement to a separate compensable 
evaluation for any muscle or nerve injury.  The evidence of 
record reflects that pain and certain abnormalities, such as 
mild atrophy, have been noted in some muscle groups.  
However, the evidence does not establish whether a specific 
muscle group or groups has sustained actual muscle injury, 
or whether the symptoms and findings noted are simply 
abnormality in the use of the muscles.  Further, it is 
unclear whether atrophy is present in the areas of the 
retained foreign bodies (RFBs) or whether there is actual 
injury to the muscle or whether the atrophy results from 
disuse or other cause.  Further medical evidence and opinion 
must be obtained to determine which MGs are affected and to 
what severity.



When there is evidence of RFBs, which had not been related 
to particular MGs, the Veteran maybe entitled to additional 
compensation if it is shown that none of the symptoms due to 
separate conditions are overlapping, else that would violate 
38 C.F.R. § 4.14, VA's anti-pyramiding regulation.  See 38 
C.F.R. § 4.25(b) (2012) and Esteban v. Brown, 6 Vet. App. 
259 (1994) (finding that when a Veteran has separate and 
distinct manifestations from the same injury he should be 
compensated under different DCs).

Additionally, the claim for a rating higher than 20 percent 
for the residuals of the SFW to the right lung with retained 
fragments is inextricably intertwined with the claim (which 
the Board is separately referring) that the November 18, 
1970 rating decision contains CUE.  (See November 2008 
Written Statement).  In a November 2012 Post-Remand Brief, 
the Veteran asserted that he was entitled to a higher rating 
in excess of 20 percent for the residuals of the SFW to his 
right lung with retained fragments.  He asserts that the DCs 
6818-5321 were two different diagnostic codes that require 
separation for a higher evaluation either as an individual 
disability or to be used in a bilateral factor.  So 
consideration of this SFW to the right lung claim must be 
deferred until this CUE claim (in not earlier granting this 
benefit) is decided.  See, e.g., Harris v. Derwinski, 1 Vet. 
App. 180, 183 (1991) (indicating issues are "inextricably 
intertwined" when they are so closely tied together that a 
final decision concerning one or more of the claims cannot 
be rendered until a decision on another.  These types of 
claims should be considered concurrently to avoid piecemeal 
adjudication of claims with common parameters).  See also 
Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith 
(Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) 
(Where the facts underlying separate claims are "intimately 
connected," the interests of judicial economy and avoidance 
of piecemeal litigation require the claims be adjudicated 
together.). 



Consideration of the Veteran's claim of entitlement to SMC 
based on the loss of use of both lower extremities or the 
need for A&A is deferred pending resolution of his claims 
for higher ratings and service connection for his right 
elbow disability as secondary to his service-connected 
seborrheic dermatitis, as the claim is inextricably 
intertwined with the increased-rating and service-connection 
claims.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris 
v. Derwinski, 1 Vet. App. 180 (1991). 

Finally, to ensure completeness of the record, the AMC 
should obtain all outstanding VA treatment records.  See 
Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, these claims are REMANDED for the following 
additional development and consideration:

1.  After securing any necessary 
release forms, with full address 
information, obtain all outstanding 
records referable to treatment of the 
Veteran by VA and any other pertinent 
health care provider.  All records 
and/or responses received should be 
associated with the claims folder.  If 
any VA or private records sought are 
not obtained, notify the Veteran and 
his representative of the records that 
were not obtained, explain the efforts 
taken to obtain them, and describe 
further action to be taken.  38 C.F.R. 
§ 3.159(c) and (e).

2.  Upon receipt of all additional 
records, schedule another VA 
compensation examination to ascertain 
the severity of the Veteran's service-
connected seborrheic dermatitis (so 
skin condition), preferably during a 
time when it is symptomatic or flaring 
up.  The claims file, including a copy 
of this remand, must be made available 
to and reviewed by the examiner.  All 
indicated tests and studies should be 
accomplished, and clinical findings 
reported in detail.  The examiner must 
provide a detailed review of the 
Veteran's history, current complaints, 
and the nature and extent of his 
seborrheic dermatitis.  In addition to 
any other information provided pursuant 
to the examination worksheet, the 
examiner must provide an opinion as to 
whether the dermatitis during a flare-
up covers more than 40 percent of the 
Veteran's entire body or more than 40 
percent of exposed areas affected.

The examiner must also address whether 
the disorder has required systemic 
therapy such as corticosteroids or 
other immunosuppressive drugs for any 
duration in any of the 12-month 
periods.  If so, the examiner must 
provide the total duration of any such 
treatment, and if said duration totaled 
more than six weeks the examiner must 
state whether the treatment was 
constant or near-constant in any of the 
12-month periods.

In all conclusions, the examiner must 
identify and explain the medical basis 
or bases, with identification of the 
evidence of record supporting the 
finding.

If the examiner finds that he/she must 
resort to mere speculation to render 
the requested opinion, then he/she must 
state what reasons, with specificity, 
preclude a sufficiently definitive 
response.



3.  Also schedule a VA compensation 
examination to determine the nature and 
etiology of the Veteran's claimed right 
elbow disability.  The examination 
should include any necessary diagnostic 
testing or evaluation.  A complete 
rationale should be provided for all 
opinions expressed.

Based on a physical examination and 
comprehensive review of the claims 
file, the examiner is first asked to 
confirm the Veteran has a right elbow 
disability.  If confirmed he does, then 
specify the diagnosis.

Then indicate the likelihood (very 
likely, as likely as not, or unlikely) 
the right elbow disability is:  
(a) proximately due to or chronically 
aggravated by the Veteran's service-
connected seborrheic dermatitis, 
psoriatic arthritis of the hands, or 
any other service-connected disability; 
or (b) otherwise directly related to 
injury or disease incurred or 
aggravated during his service.

4.  As well, the Veteran should be 
afforded an examination of all muscles 
surrounding his left ankle, left knee, 
right knee, and left upper extremity of 
the elbow.  The examiner should provide 
an opinion as to whether there is 
muscle injury from the RFBs and, if so, 
what specific muscle groups.  If 
atrophy of a muscle group is present, 
the examiner should explain the 
etiology of that atrophy, that is, 
whether there is actual injury to the 
muscle or whether the atrophy results 
from disuse or other cause.  To the 
extent possible, the examiner should 
identify the locations of the RFBs 
assigning them to muscle groups (MGs).

The examiner should provide an opinion 
as to whether there is injury to MG X 
(intrinsic muscles of the foot).

The examiner should provide an opinion 
as to whether there is injury to MG XI 
(propulsion, plantar flexion of foot).  

The examiner should provide an opinion 
as to whether there is injury to MG XII 
(dorsiflexion of the foot)

The examiner should provide an opinion 
as to whether there is injury to MG 
XIII (hip and flexion of knee)

The examiner should provide an opinion 
as to whether there is injury to MG XIV 
(extension of knee)

The examiner should provide an opinion 
as to whether there is injury to MG XV 
(adduction of hip and flexion of knee)

The examiner should provide an opinion 
as to whether there is any other 
connective tissue injury that is 
separate from any muscle injury 
described in the examination report.

All pertinent symptomatology and 
findings should be reported in detail.  
All indicated diagnostic tests and 
studies should be accomplished.



5.  Once each report of examination is 
complete, they should be reviewed to 
ensure they contain the required 
responses to the questions posed.  If 
any question has not been answered, the 
additional information should be 
obtained.  38 C.F.R. § 4.2.

6.  Then readjudicate these remaining 
claims in light of this and all other 
additional evidence.  For any claim 
that is not granted to the Veteran's 
satisfaction, send him and his 
representative an SSOC and give them an 
opportunity to respond to it before 
returning the file to the Board for 
further appellate consideration of all 
remaining claims.

The Veteran has the right to submit additional evidence and 
argument concerning these claims the Board are remanding.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The 
law requires that all claims that are remanded by the Board 
of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs