Citation Nr: 1425075	
Decision Date: 06/04/14    Archive Date: 06/16/14

DOCKET NO.  06-15 233	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 30 percent for service-connected major depressive disorder. 

2.  Entitlement to a disability rating in excess of 20 percent for service-connected residuals of stress fracture of the left leg. 

3.  Entitlement to a disability rating in excess of 10 percent for service-connected right hip pain due to osteoporosis. 

4.  Entitlement to a disability rating in excess of 10 percent for service-connected left hip pain due to osteoporosis. 

5.  Entitlement to a disability rating in excess of 10 percent for service-connected right knee pain due to osteoporosis. 

6.  Entitlement to a disability rating in excess of 10 percent for service-connected left knee pain due to osteoporosis. 

7.  Entitlement to a disability rating in excess of 10 percent for service-connected right shoulder pain due to osteoporosis. 

8.  Entitlement to a disability rating in excess of 10 percent for service-connected left shoulder pain due to osteoporosis. 

9.  Entitlement to a disability rating in excess of 10 percent for service-connected right wrist pain due to osteoporosis. 

10.  Entitlement to a disability rating in excess of 10 percent for service-connected left wrist pain due to osteoporosis. 

11.  Entitlement to a compensable initial disability rating for service-connected residuals of abdominal adhesions prior to July 1, 2009, and to a rating in excess of 10 percent thereafter. 

12.  Entitlement to a disability rating in excess of 10 percent for service-connected right ankle pain due to osteoporosis. 

13.  Entitlement to a disability rating in excess of 10 percent for service-connected left ankle pain due to osteoporosis. 

14.  Entitlement to a disability rating in excess of 10 percent for service-connected right elbow pain due to osteoporosis. 

15.  Entitlement to a disability rating in excess of 10 percent for service-connected left elbow pain due to osteoporosis. 

16. Entitlement to service connection for Sjogren's syndrome, to include as secondary to a service-connected disability. 

17. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected disability. 



REPRESENTATION

Appellant represented by:	Maine Veterans' Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Kordich, Senior Counsel


INTRODUCTION

The Veteran had active duty from October 1985 to October 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

In April 2007, the Veteran testified at a Board videoconference hearing before the undersigned.  A transcript of this hearing is associated with the claims file.

The Board notes that claims seeking service connection for systemic lupus erythematosus (SLE), chronic fatigue syndrome, fibromyalgia and chronic diffuse pain syndrome; and special monthly compensation based on aid and attendance/housebound status were developed for appellate review, but were granted by the RO in a rating decision dated in May 2010, and are no longer on appeal.

The Board also notes that the Veteran has been awarded a total disability rating based on individual unemployability (TDIU) effective from March 31, 1989 to July 1, 2009, as well as special monthly compensation (SMC) from July 1, 2009.  The record shows she is currently in receipt of a schedular 100 percent rating for a disability, as well as housebound benefits.  For this reason, the increased rating claims before the Board do not raise the matter of entitlement to a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009).  See Bradley v. Peake, 22 Vet. App. 280 (2008).

All documents on the Virtual VA paperless claims system and the Veterans Benefits Management System (VBMS) have been reviewed and considered.

The issues of entitlement to increased ratings for right and left ankle pain, right and left elbow pain, right and left shoulder pain, and entitlement to service connection for migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's major depressive disorder is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not by occupational and social impairment with reduced reliability and productivity, by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment.

2.  The Veteran's residuals of stress fracture of the left leg have not resulted in severe impairment, marked knee or ankle disability, or limitation of motion of the leg or knee which would warrant an evaluation greater than 20 percent.

3.  The Veteran's right hip disability is manifested by full range of motion with discomfort but not by motion lost beyond 10 degrees on abduction; inability to cross legs or toe out more than 15 degrees; or by ankylosis, flail joint, or impairment of the femur.

4.  The Veteran's left hip disability is manifested by full range of motion with discomfort; but not by motion lost beyond 10 degrees on abduction; inability to cross legs or toe out more than 15 degrees; or by ankylosis, flail joint, or impairment of the femur.

5.  The Veteran's service-connected right knee disability is manifested by pain on motion with flexion to 100 degrees and full extension, with no additional functional  impairment.

6.  The Veteran's service-connected left knee disability is manifested by pain on motion with flexion to 125 degrees and full extension, with no additional functional impairment.

7.  The Veteran's right wrist pain is not manifested by ankylosis or by any impairment other than some limitation of motion. 

8.  The Veteran's left wrist pain is not manifested by ankylosis or by any impairment other than some limitation of motion.

9.  Prior to July 1, 2009, the Veteran's abdominal adhesions were shown to result in occasional episodes of colic, nausea, constipation (alternating with diarrhea).

10.  Prior to July 1, 2009 and thereafter, the Veteran's abdominal adhesions were not shown to be at least moderately severe in degree with partial obstruction manifested by delayed motility of barium meal and more than occasional episodes of pain; nor does the Veteran demonstrate severe impairment with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.

11.  The Veteran's diagnosed Sjogren's syndrome was incurred during active military service.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 30 percent for major depressive disorder have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9434 (2013).

2.  The criteria for an evaluation in excess of 20 percent for residuals of stress fracture of the left leg have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 5252, 5260, 5261, 5262, 5310 (2013).

3.  The criteria for an evaluation in excess of 10 percent for right hip disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.71a, Diagnostic Codes 5003, 5013, 5019, 5251, 5252, 5253 (2013).

4.  The criteria for an evaluation in excess of 10 percent for left hip disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.71a, Diagnostic Codes 5003, 5013, 5019, 5251, 5252, 5253 (2013).

5.  The criteria for an evaluation in excess of 10 percent for right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5013, 5257, 5259, 5260, 5261 (2013).

6.  The criteria for a disability evaluation in excess of 10 percent for left knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5013, 5257, 5259, 5260, 5261 (2013).

7.  The criteria for a rating in excess of 10 percent for the Veteran's right wrist pain have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, Diagnostic Codes 5013, 5215 (2013). 

8.  The criteria for a rating in excess of 10 percent for the Veteran's left wrist pain have not been met.  38 U.S.C.A. §§ 1155 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, Diagnostic Codes 5013, 5215 (2013). 

9.  The criteria for an initial rating of 10 percent for residuals of abdominal adhesions prior to July 1, 2009 have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.10, 4.113, 4.114, 4.126(d), Diagnostic Code 7301 (2013). 

10.  The criteria for a rating in excess of 10 percent for residuals of abdominal adhesions prior to July 1, 2009 and thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.10, 4.113, 4.114, 4.126(d), Diagnostic Code 7301 (2013). 

11.  The criteria for establishing service connection for Sjogren's syndrome have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

VA's notice requirement applies to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom.  Vazquez-Florez v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id. 

In this appeal, in August and September 2003 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the increased ratings claims, and the service connection claims, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. 

The August and September 2003 letters did not include adequate notice of how the effective date for any service connection or increased disability ratings on appeal would be assigned.  During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned, if service connection is awarded.  Dingess/Hartman supra.  Although the August and September 2003 letters did not provide adequate notice consistent with Dingess/Hartman, the Veteran received additional notice in March 2006 pertaining to the disability ratings and effective date elements of his service connection and increased rating claims.  The record shows that the claims were thereafter readjudicated in a supplemental statement of the case in November 2006.  Consequently, any error in the timing of the notice is harmless, and the record shows that the Veteran has now received the notice to which she is entitled.  

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of her claims in this Board decision.  Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). 

Turning to VA's duty to assist the Veteran, all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible.  The evidence of record includes service treatment records, private medical records, Social Security Administration (SSA) records, VA outpatient treatment reports, adequate VA examinations and statements and testimony from the Veteran and her representative. 

The Board notes that the December 2003, July 2009, and April 2010 (with an addendum in May 2010) VA examination reports on file, and the May 2010 VA examination addendum report reflect that the examiners reviewed the Veteran's past medical history, documented her current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  Consequently, the Board concludes that the medical examinations and addenda are adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices from the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims herein decided.  

The Board has reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102 (2013). 

I.  Increased Rating Criteria

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013).  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2013).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disabilities in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.


A. Major Depressive Disorder

Factual Background

By a rating decision dated in February 2004, the RO granted service connection for major depressive disorder, assigning a 30 percent evaluation effective July 2003.

At a December 2003 VA psychiatric examination, the Veteran reported experiencing constant pain and being chronically depressed.  She did not report any history of inpatient or outpatient psychiatric treatment, or history of difficulty with alcohol or nonmedical drugs.  She indicated she was taking amitriptyline at night for the muscle relaxing properties, but not for depression.  The mental status examination showed the Veteran's mood was depressed.  There were no panic attacks reported or substance abuse or phobia.  The Veteran denied any suicidal or homicidal thoughts, plans or ideas.  There was no inappropriate behavior demonstrated or noted.  The Veteran was well oriented and her speech was normal.  Personal hygiene was adequate.  Her sleep was reportedly impaired.  There was some indication of recent memory loss and she seemed to be preoccupied with pain.  The Veteran reported that she was not employed and had been out of the workforce for the past 15 years, and lived with her husband.  The examiner's diagnosis was major depressive disorder, associated with chronic pain and limitation of function.  The VA examiner assigned a Global Assessment of Functioning (GAF) score of 50.  The examiner noted, with respect to the Veteran's activities of daily living, that she bathed and dressed herself, and that her home evidently had been modified to some degree for handicap accessible features.  The examiner futher noted that the Veteran concentrated with difficulty and adapted poorly to stress, and had a moderate to severe impairment of her industrial capacity and social function.  

VA outpatient treatment records dated from January 2002 to July 2003 document a diagnosis of major depressive disorder with anxiety.  VA treatment records from July 2003 to November 2006 do not show any treatment for the Veteran's major depressive disorder.

At her April 2007 Board videoconference hearing, the Veteran's representative indicated that the psychiatrist at the VA examination in December 2003 noted the Veteran had severe impairment.  The representative noted that the Veteran could not work because she was in pain.

At a July 2009 VA examination, the examiner noted that the Veteran reported multiple symptoms, and that her symptoms were very similar to those reported in her last compensation and pension examination; some pain with sleep and sleeping difficulties.  The Veteran reported that she was now divorced and lived with her mother.  She reported that she had few friends.  She did not report any other active serious mental health problems.  She reported difficulty sleeping, low energy and fatigue.  She reported mild low self-esteem but basically had a good sense of self.  She did not report any major difficulty in making decisions and her concentration was related to her physical issues.  She did not report any major feelings of hopelessness.  The Veteran did not report feeling sad or empty.  She reported some depression as the result of her physical injuries.  The Veteran did not display any psychomotor agitation or retardation.  She did not report feelings of worthlessness but did report some inability to think and concentrate.  The examiner noted that these symptoms were all secondary to her multiple physical illnesses for which she was being evaluated. 

The examiner indicated that the Veteran's activities of daily living were impaired due to her physical problems.  She basically was able to clothe herself with the assistance of her service dog, and her mother helped her from time to time.  She spent the night at a residence nearby the hospital and was able to care for herself.  The examiner noted that the Veteran's physical symptoms impaired her employment functioning, but her mental health would not preclude employment functioning.  

The examination showed that the Veteran was able to articulate her problems.  She was oriented.  Her speech was appropriate.  Her memory function for events was within normal limits.  The Veteran's affective presentation was that of an individual who was quite appropriate in discussing her world, her feelings, and her reactions to what had happened to her.  Her motor activity was well within normal limits and her judgment was good.  There was no evidence of any dissociative behavior, no delusions, disorganized thinking or hallucinations.  The Veteran's activities of daily living were considered greatly diminished by her multiple physical impairments.  Her sleep disturbance was most likely due to pain and she denied and suicidal or homicidal ideation.

The examiner noted the Veteran met the criteria for a diagnosis of depressive disorder secondary to her multiple medical injuries.  The examiner noted that the  Veteran did not have major concentration problems, and that her problems were not predicated on her psychiatric disability but rather was a reaction to her physical disability.  She was not suicidal or homicidal and did not suffer from severe low self-esteem.  She had mild concentration problems.  The examiner noted that the Veteran did have a sense of self that was somewhat depressed.  The examiner additionally commented  that the Veteran had multiple physical injuries, had never had any psychiatric treatment and met minimal criteria for major depressive disorder.  The examiner explained that although she had multiple physical pain, she was not suffering intense psychiatric disturbances and had never been referred for any psychiatric treatment.  The examiner indicated that the Veteran was able to cope and articulate with her multiple physical illnesses and it appeared that the Veteran had more serious medical issues rather than psychiatric issues that were affecting her life.  The examiner assessed the Veteran with a GAF score of 60.

Rating Criteria and Analysis

In the applicable rating criteria, use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rater is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  See 38 C.F.R. § 4.126 (2013).  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436 (1992). 

The Veteran's service-connected depressive disorder is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013).  Under Diagnostic Code 9434, a 30 percent rating is for consideration where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130. 

A 50 percent disability rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent disability rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 

A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  38 C.F.R. § 4.130, Diagnostic Code 9434. 

A GAF score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  This is more commonly referred to as DSM-IV.  A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends).  A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).  A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF of 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. 

The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443. 

After carefully considering the evidence on file, the Board finds that the evidence does not support assignment of a rating higher than 30 percent.  The evidence shows that the Veteran's depression is mild and intermittent in nature and does not require treatment.  The evidence throughout the rating period demonstrates that the Veteran's major depression symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent disability rating under Diagnostic Code 9434.  The Veteran's primary psychiatric symptom is chronic sleep impairment and a depressed mood, which is consistent with the level of impairment contemplated by the criteria for a 30 percent rating.  The Veteran's psychiatric disorder is not manifested by panic attacks, speech abnormalities, impaired judgment, or hallucinations or delusions.

Mental status examinations of record show the Veteran was well oriented and that her speech was normal.  Despite a depressed mood, she denied any suicidal or homicidal thoughts, plans or ideas.  There was no inappropriate behavior demonstrated or noted.  Personal hygiene was adequate and there was no impairment in judgment.  There was some indication of recent memory loss in December 2003, but none in July 2009, and there in any event was no indication of substantial memory loss.  Although the Veteran reported having few friends, she admittedly does have some friends.

Although the Veteran has some concentration problems, the July 2009 VA examiner determined that those symptoms were related to physical causes, rather than psychiatric impairment.  The same is true with respect to the impairment in the Veteran's activities of daily living.  Moreover, although the Veteran experiences poor adaptability to stress and has been unemployed for a number of years, the July 2009 examiner clarified that it is her physical impairment, and not psychiatric disability, that is responsible for the Veteran's employment status.

In sum, the Board finds that for the entire rating period, the Veteran's service-connected major depressive disorder has been characterized by depressed mood, trouble sleeping, and some memory loss, which more nearly approximates the criteria for a 30 percent disability rating under Diagnostic Code 9434.  38 C.F.R. § 4.3.


B.  Left leg Stress Fracture; Right and Left Hip Pain; Right and Left Knee Pain

Factual Background

At a December 2003 VA examination, the examiner noted that the Veteran was diagnosed with osteogenesis imperfecta, which is the underlying cause of her osteoporosis and bone fractures.  It was noted that she was followed by a doctor in endocrinology.  The Veteran's bone density was stable and osteoporosis was not severe in the femoral neck and spine.  The etiology of the Veteran's poor balance was unknown.  The examiner noted that the Veteran had requested a motorized wheelchair on numerous occasions, but that it was not recommended medically due to the potential for further deconditioning and inactivity, which would increase her chronic diffuse pain and fibromyalgia.  The Veteran reported developing numbness over the left lower leg from the knee to the toes several years ago, and had been seen for foot pain in her left great toe.  She had been diagnosed with degenerative joint disease, and had an old fracture in the left foot in the early 1990s.  She was currently being treated with physical therapy, phonophoresis, and orthotics.

Physical examination showed bilateral lower extremity strength of 5 out of 5, with no muscle atrophy.  Range of motion of the hips was full, with discomfort increased slightly with range of motion.  Flexion was to 120 degrees; extension was to 30 degrees, abduction was 40 degrees, internal rotation was to 45 degrees, and external rotation was to 45 degrees bilaterally.  There was no swelling in the knees, and no discoloration or deformity.  The Veteran was mildly tender to palpation.  Range of knee motion was 0 to 135 degrees with mild increased pain in the left knee in full flexion; otherwise there was no increased pain.  The knees were stable.  The ankles were nontender to palpation.  Range of motion was normal with a slight increase in pain throughout the range of motion.  Plantar flexion was to 50 degrees, dorsiflexion was to 15 degrees, inversion was to 35 degrees and eversion was to 20 degrees.  

The neurologic examination revealed deep tendon reflexes were 2+ in the knees and 1+ in the ankles, with down going plantars bilaterally.  Sensation to sharp and dull was essentially intact over the upper and lower extremities.  Alternate thigh slapping was normal.  Romberg showed no pronator drift; however, the Veteran did sway a bit and repositioned her feet for better balance.  The Veteran was able to briefly walk on her heels and toes while keeping one hand on the examination table.  The examiner stated that the Veteran's multiple fractures were due to her diagnosis of osteogenesis imperfecta.  

VA treatment reports dated from January 2002 to November 2006 show the Veteran was on Prednisone and was participating in a low joint stress impact adapted sports program.

At her April 2007 Board hearing, the Veteran testified to balance problems and the use of a service dog to help her balance while walking.  The Veteran also indicated that she had a wheelchair.  

At her July 2009 VA examination, the examiner noted the Veteran had multiple fractures and recent fusion of her left toe and was supposed to have another fusion in her right foot as well, which was pending.  The examiner indicated that the Veteran had the diagnosis of osteogenesis imperfecta with blue sclerae and osteoporosis with multiple compression fractures and bony fractures.  It was noted that the Veteran was in a wheelchair because of osteogenesis imperfecta, stress fractures, many orthopedic problems and that she told the examiner that she may have Sjogren's syndrome and/or lupus and fibromyalgia.  

The examination of the Veteran's hips showed 80 degrees of flexion with 25 degrees external and 10 degrees internal rotation.  The examiner noted it was difficult to maneuver the Veteran's left hip while in the chair.  Her knees had full extension to 125 degrees and 130 degrees flexion.  There was no effusion.  Her ankles had no active synovitis.  Her left first metatarsal phanangeal joint was fused.  Motor strength was 5/5.  Sensory was intact to pin, vibration, position, and light touch.  Deep reflexes were 2+ and equal.  Her toes were downgoing and she limped on her right leg.  

At an April 2010 VA examination, the examiner noted that examination of the Veteran's hips was limited due to the wheelchair.  Examination of her right knee was significant for warmth, full extension to 100 degrees flexion, and +1 effusion.  The Veteran's left knee had no effusion with full extension to 125 degrees flexion.  

Rating Criteria and Analysis

The Board notes that the RO rated the Veteran's residuals of stress fracture of the left leg under Diagnostic Code 5299-5310 (Muscle Group X movements of the forefoot and toes and propulsion thrust in walking), indicating an analogous rating.  The Veteran's residuals of stress fracture of the left leg is currently rated as 20 percent disabling.  Other potentially applicable Diagnostic Codes include 5250 through 5255, and 5262.

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.  In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all findings specified.  38 C.F.R. § 4.21.  The Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 

Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe.  38 C.F.R. § 4.56 (2013).  A "slight" muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability.  Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

A "moderate" muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objectively, there are entrance and if present, exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

A "moderately severe" muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements.  Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).

A "severe" muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements.  Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 

If present, the following are also signs of "severe" muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle;(c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle;
(g) induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

When evaluating damage to muscle groups, disability pictures are based on the cardinal signs and symptoms of muscle disability, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement.  38 C.F.R. § 4.56.  A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.  For compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups.  38 C.F.R. § 4.55 (2013). 

Muscle Group X involves movements of the forefoot and toes; propulsion thrust in walking and intrinsic muscles of the foot: plantar: (1) flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi; (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor or digiti minimi brevis; (9) dorsal and plantar interossei, as well as other important plantar structures: plantar aponeurosis, long plantar and calcaneonavicular ligament, tendons of posterior tibial, peroneus longus, and long flexors of the great and little toes.  Slight muscle disability of the plantar muscles warrants a non-compensable rating, while moderate muscle disability of the plantar muscles warrants a 10 percent rating. Moderately severe muscle disability of the plantar muscles warrants a 20 percent rating, and severe muscle disability of the plantar muscles warrants a 30 percent rating. 

Diagnostic Code 5310 also contemplates ratings for dorsal muscle disabilities.  The muscles of the dorsal aspect of the foot consist of (1) the extensor hallucis brevis and (2) the extensor digitorium brevis.  Other important dorsal structures include the cruciate, crural, deltoid, and other ligaments, as well as the tendons of long extensors of the toes and peronei muscles. Slight disability of the dorsal muscles warrants a non-compensable rating, while moderate muscle disability and moderately severe muscle disability of the dorsal muscles warrants a 10 percent rating.  Severe muscle disability of the dorsal muscles warrants a 20 percent rating. An explanatory note to Diagnostic Code 5310 also directs the rater to assign a minimum 10 percent rating for a through-and-through wound of the foot. 

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


Left Leg Stress Fracture

The Board initially points out that although the RO rated the Veteran's disability under the diagnostic code pertaining to muscle injuries, the actual disorder at issue is not the result of a muscle injury.  Consequently, most of the findings which determine how to characterize the severity of a muscle injury are not present.  The Veteran's left leg stress fracture residuals do not show severe muscle disability such as through and through or deep penetrating wound, or shattered bone fracture or open comminuted frature with extensive debridement, prolonged infection, or sloughing of soft parts.  There is also no X-ray evidence of minute, multiple scattered foreign bodies indicating intermuscluar trauma; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic test; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; induration or atrophy of an entire muscle following simple piercing by a projectile.  

The Board has instead considered the cardinal signs and symptoms of muscle disability, namely loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.

The December 2003 VA examination showed strength in the lower extremities as 5 out of 5 and there was no muscle atrophy.  The July 2009 examiner also noted full strength, and range of hip motion testing showed 80 to 100 degrees of flexion with 30 degrees extension, 25 to 45 degrees external and 10 to 45 degrees internal rotation.  Her knees had full extension to 125 degrees and 135 degrees flexion.  Her ankles had plantar flexion to 50 degrees and dorsiflexion to 15 degrees.  Sensory was intact and deep reflexes were 1+ to 2+ and equal.  Her toes were downgoing and she limped on her right leg.  

Based on the above, the Board finds that the Veteran's stress fracture does not approximate a severe injury to muscle group X.  The Veteran does evidence some incoordination and uses assistance devices.  Nevertheless, she clearly has full strength and no loss of power in her leg.  Moreover, she retains substantially full motion in the leg, even when functional impairment due to pain and fatigue and incoordination are considered.

The Veteran's statements as to the severity of her left leg symptoms have been considered; however, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).  Those findings are consistent with no more than moderately severe injury.  Consequently, a rating higher than 20 percent under Diagnostic Code 5310 is not warranted.  

Under Diagnostic Code 5262, a 20 percent evaluation is warranted for impairment of the tibia and fibula where there is evidence of a moderate knee or ankle disability.  A 30 percent evaluation is warranted when there is evidence of a marked knee or ankle disability.  Finally, a maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula with loose motion which requires a brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013).  The Board observes that the words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2013). 

The evidence documents complaints of tenderness and pain in the area of the left tibia, but there is no evidence showing malunion of the tibia.  Moreover, at the Veteran's VA examinations, range of motion testing of the knees showed full extension to 125 degrees to 135 degrees flexion.  The ankles also showed substantially full motion, even when the functional impairment due to pain, fatigue and incoordination were considered.  Motor strength was 5/5, and sensation was intact.  Deep tendon reflexes were 1+ to 2+ and equal.

Given the substantially full range of knee and ankle motion, the Board finds that a rating higher than 20 percent under Diagnostic Code 5262 is not warranted.  This is also true given the absence of any indication of nonunion of the tibia and fibula.

The Board has also considered whether a higher rating is warranted under Diagnostic Code 5252.  That code provides for a 30 percent rating where thigh flexion is limited to 20 degrees.  The evidence clearly shows that the Veteran's left thigh flexion is limited to no less than 80 degrees.  A higher rating under Diagnostic Code 5252 is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5252.  Similarly, Diagnostic Code 5253 does not provide for a higher rating at any time during the appeal period.  That code provides for a maximum 20 percent rating where the evidence shows limitation of thigh abduction with motion lost beyond 10 degrees. The Veteran exhibits considerably more motion.  Accordingly, Diagnostic Code 5253 cannot serve as the basis for a rating in excess of 20 percent for residuals of stress fracture of the left leg. 

The Board has considered rating the Veteran's service-connected left leg disorder under Diagnostic Codes 5250, 5254, and 5255.  However, the evidence of record does not demonstrate that the Veteran has ankylosis of the hip, flail joint of the hip, fracture of the shaft or anatomical neck of the femur with nonunion, fracture of the surgical neck of the femur with a false joint, or malunion of the femur.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255 (2013).  Accordingly, a rating in excess of 20 percent is not warranted for the Veteran's service-connected left leg disorder under these diagnostic codes. 

In sum, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 20 percent for residuals of a left leg stress fracture.  The Board finds that at no point during the appeal period did the disorder warrant a higher rating.  See Hart, supra.

Right and Left Hip

The Veteran's right and left hip disabilities are each rated as 10 percent disabling under Diagnostic Code 5251.

Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension to 5 degrees.  Diagnostic Code 5252 provides a 10 percent rating for limitation of flexion to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; a 30 percent rating where flexion is limited to 20 degrees; and a 40 percent rating where flexion is limited to 10 degrees.  Diagnostic Code 5253 provides a 10 percent evaluation when there is limitation of adduction such that the legs cannot be crossed or limitation of rotation such that it is not possible to toe out more than 15 degrees.  A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees.  

Normal hip flexion is from zero to 125 degrees, and normal hip abduction is from zero to 45 degrees.  38 C.F.R. § 4.71, Plate II. 

Diagnostic Code 5254 provides an 80 percent evaluation for flail joint of the hip.  38 C.F.R. § 4.71a, Diagnostic Code 5254.

The Board notes that Diagnostic Code 5275 for shortening of the bones of the lower extremity is potentially applicable in this case.  Under Diagnostic Code 5275, a 10 percent evaluation is warranted for shortening of the bones from 1 1/4 to 2 inches. A Note to Diagnostic Code 5275 indicates that this rating is not to be combined with other ratings for fracture or faulty union of the same extremity.  Nonetheless, there is no lay or medical evidence in this case of shortening of the lower extremity bones from 1 1/4 to 2 inches or of a prosthetic hip replacement.

Other diagnostic codes relating to the hip are Diagnostic Code 5250 (ankylosis), Diagnostic Code 5254 (Hip, flail joint), Diagnostic Code 5255 (impairment of the femur) and Diagnostic Code 5054 (Hip replacement, prosthesis).  These conditions are not shown on examination or otherwise in the record, and application of these diagnostic codes is not warranted.  38 C.F.R. § 4.71a. 

Based on the evidence of record, the Board finds that an increased rating is not warranted for either the Veteran's right or left hip disability at any point during the pendency of this appeal.  

Turning first to Diagnostic Code 5251, a 10 percent rating is the maximum evaluation assignable under that code.  38 C.F.R. § 4.71a, Diagnostic Code 5251.  Thus, Diagnostic Code 5251 cannot serve as the basis for a higher rating for either the right or left hip disability at any time during the pendency of the appeal. 

Next, a higher rating is not warranted for either hip based on limitation of flexion under Diagnostic Code 5252, as the evidence does not show right or left hip flexion limited to 30 degrees at any time during the period on appeal.  Range of motion testing at the July 2009 VA examination showed 80 degrees of flexion with 25 degrees external and 10 degrees internal rotation.  Relevant treatment notes also do not show hip flexion limited to 30 degrees.  Even with consideration of the Veteran's complaints of hip pain and incoordination, her bilateral hip flexion clearly is not restricted to 30 degrees or less.  As the evidence does not show hip flexion limited to 30 degrees at any time during the period on appeal, a higher evaluation is not warranted pursuant to Diagnostic Code 5252 for either hip. 

Finally, the evidence does not show that a higher rating is warranted at any time based on impairment of the thigh pursuant to Diagnostic Code 5253.  Under that diagnostic code, a higher 20 percent rating is warranted only for limitation of abduction with motion lost beyond 10 degrees.  As the evidence shows, the record is negative for evidence of limitation of rotation, adduction, or abduction to warrant even a compensable rating for either the right or left hip.  The December 2003 VA examination showed abduction to 40 degrees.  Although the subsequent examiners noted that examination of the hips was limited due to the wheelchair, the July 2009 VA examination did not show abduction lost beyond 10 degrees for either hip.  Therefore, absent evidence of limitation of abduction with motion loss beyond 10 degrees, a higher 20 percent rating is not warranted for either hip pursuant to Diagnostic Code 5253 at any time during the period on appeal. 

The Board has considered the applicability of other diagnostic codes, but as there is no evidence of ankylosis of the hip (Diagnostic Code 5250), that the Veteran suffers from a flail joint (Diagnostic Code 5254), or that he has impairment of the femur (Diagnostic Code 5255), no other criteria pertaining to impairment of the hip and thigh is applicable to the Veteran's disabilities.  As noted previously, the Veteran does not have any shortening of either extremity to warrant a higher rating.

The Board has also considered statements and hearing testimony from the Veteran concerning complaints of hip pain, difficulty ambulating, and physical limitations. These complaints are consistent with those reported to the VA examiners.  The Veteran is competent to report symptoms of her hip disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  She is also generally deemed credible in her reports of symptoms/complaints and their effect on her activities.  They are not, however, competent to identify a specific level of disability according to the appropriate diagnostic code.  Such competent evidence concerning the nature and extent of the Veteran's service-connected bilateral hip disabilities has been provided by VA medical professionals who have examined her.  The medical findings directly address the criteria under which this disability is evaluated.  The Board finds these medical records to be the only competent and probative evidence of record, and therefore the objective findings are accorded greater weight than the Veteran's subjective complaints of increased symptomatology.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Board has also considered the Veteran's complaints of additional pain, and the objective findings on VA examination of additional pain on repetitive testing in the hips.  However, there is no other evidence showing that the Veteran has more limitation of motion than that found at her VA examinations.  Further, even considering complaints of pain with repetitive use, the Veteran did not at any time exhibit right or left hip flexion to even a compensable degree (45 degrees), nor did she exhibit limitation of abduction with loss approaching 10 degrees.  Thus, considering all pertinent disability factors, to include the factors discussed above, see DeLuca v. Brown, 8 Vet. App. 202 (1995), there is no appropriate basis for assigning schedular ratings in excess of 10 percent, even considering pain on motion, for the Veteran's left and right hip disabilities.

In sum, the preponderance of the evidence is against the claims for higher ratings.  The Board also finds that this is the throughout the entire appeal period.  See Hart, supra.


Right and left Knee

The Veteran's right and left knee disabilities are each rated as 10 percent disabling under Diagnostic Code 5257.  

Subluxation or instability of the knee under Diagnostic Code 5257 warrants a 10 percent rating for slight recurrent subluxation or lateral instability.  Moderate recurrent subluxation or lateral instability warrants a 20 percent rating.  Severe recurrent subluxation or lateral instability warrants a 30 percent rating.  

The Board notes that separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability.  See generally VAOPGCPREC 23- 97 and VAOPGCREC 9-98.  

Moreover, in a precedent opinion by VA's General Counsel, it was held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 9-04.

Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).

Under Diagnostic Code 5256, a 30 percent rating may be assigned for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5256.

Under Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of 'locking,' pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.

Under Diagnostic Code 5259, removal of semilunar cartilage that is symptomatic warrants a 10 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5259.

Under Diagnostic Code 5260, limitation of flexion to 60 degrees is noncompensable, limitation of flexion to 45 degrees warrants a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent rating, and limitation of flexion to 15 degrees warrants a 30 percent rating.

Under Diagnostic Code 5261, a 10 percent rating is warranted when extension is limited to 10 degrees; a 20 percent disability rating is warranted when extension of the leg is limited to at least 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; and a 40 percent rating is warranted for extension limited to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

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

Under Diagnostic Code 5262, a 10 percent disability rating is available when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is available when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262.

Under Diagnostic Code 5263, a 10 percent rating is warranted for genu recurvatum pursuant to Diagnostic Code 5263.  38 C.F.R. § 4.71a, Diagnostic Code 5263.

After careful review of the evidence, the Board finds that an evaluation in excess of 10 percent for either knee disorder is not warranted.  The December 2003 VA examination showed no swelling in the knees and no discoloration or deformity.  The Veteran was able to fully extend each knee and to flex each knee to 135 degrees, with mild increased pain on the left knee in full flexion.  Both knees were stable.  The July 2009 VA examination noted full extension to 125 to 130 degrees of flexion; there was no effusion.  At the April 2010 VA examination, the examiner noted warmth in the right knee, but with full extension and flexion to 100 degrees with +1 effusion.  Her left knee had no effusion with full extension and flexion to 125 degrees.  

The above shows that he Veteran has full extension in both knees without pain, and flexion to at least 100 degrees in each knee, even with consideration of pain and effusion.  The Veteran's range of motion in each knee, with consideration of functional impairment, clearly does not approximate the criteria for an evaluation in excess of 10 percent for either knee.

The Board also finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra, the Veteran's functional losses do not equate to the criteria required for separate compensable ratings under Diagnostic Code 5260 and Diagnostic Code 5261 because flexion of the right and left knees are not limited to at least 45 degrees; at its worst the right knee was limited to 100 degrees flexion and the left knee to 125 degrees of flexion.  Extension of both knees was never limited.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; VAOPGCPREC 9-2004.  This was true at all times during the pendency of the appeal, and therefore consideration of staged ratings is not warranted.  Fenderson, supra. 

There is no clinical evidence showing additional functional impairment beyond that contemplated by the 10 percent ratings assigned.  The Veteran's subjective complaints of pain and weakness were considered but do not support a higher rating for either knee.  Nor does the record document any instability in either knee.  Accordingly, higher ratings or separate ratings based on instability under Diagnostic Code 5257 are not warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257; see also VAOPGCPREC 9-98 and 23-97.  In addition, as there is no evidence of dislocated semilunar cartilage, genu recurvatum, ankylosis, or malunion or nonunion of the tibia and fibula, Diagnostic Codes 5258, 5263, 5256, and 5262 are not for application. 

In short, the preponderance of the evidence is against assignment of a higher rating for either knee and against assignment of separate ratings for either knee.

C. Right and Left Wrist Pain

Factual Background

At the Veteran's December 2003 VA examination, it was noted that the Veteran was diagnosed with chronic diffuse pain syndrome which met the criteria for fibromyalgia.  She had widespread pain, in part due to past injury and somatization.  The Veteran reported that her wrists hurt constantly, with numbness in the left arm.  The pain was described as an ache with periodic sharp pains.  She reported morning stiffness in all joints.  She reported that sometimes she had bilateral hand swelling in the mornings if it was cold.  She reported no instability, locking, swelling, heat, or redness.  She dropped things occasionally from her left hand.  

The examination showed that there was no swelling, heat, discoloration or deformity in the upper extremities.  Strength was 5/5.  Pinch and grip strength were 5/5 bilaterally.  The wrists were tender to palpation diffusely.  Range of motion was full, with flexion to 80 degrees; extension to 70 degrees; ulnar deviation to 30 degrees; and radial deviation to 20 degrees, with increased pain with range of motion as compared to the pain level at rest.  

The neurologic examination showed that sensation to sharp and dull was essentially intact over the upper and lower extremities.  

VA treatment records dated from January 2002 to November 2006 show that the Veteran was taking Prednisone and was participating in a low joint stress impact adapted sports program.

At her April 2007 Board hearing, the Veteran testified that she had a difficult time with house chores and at the grocery store.

At a July 2009 VA examination, the examiner noted that the Veteran's wrists showed active synovitis with 40 to 50 degrees flexion and 20 degrees extension.  The fingers showed no active synovitis but the Veteran had bilateral proximal interphalangeal knuckle pads obvious with full grip.  The Veteran complained of aches all over her body and had aches and pains in her joints to include her hands.  

At an April 2010 VA examination, the Veteran reported arthralgia and aches and pains all over her body, with swollen joints of her right hand and both wrists.  Her right wrist had tenderness to palpation and warmth.  The examiner noted no significant effusion, but limited range of motion to 10 degrees extension and 50 degrees flexion, bilaterally.  The metacarpophalangeal (MCP) joints were nontender.  The distal phalangeal (DIP) joints were intact.  The proximal interphalangeal (PIP) joints were significant for right second and third PIP swelling and bogginess with tenderness.  There was decreased full flexion in the right hand.  

Rating Criteria and Analysis

The Veteran's right and left wrist disabilities have been rated analogous to a similar disability by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5215, pertaining to limitation of motion of the wrist.  

Under Diagnostic Code 5215, wrist, limitation of motion, a 10 percent rating is assigned where wrist dorsiflexion is less than 15 degrees, or where palmar flexion is limited in line with the forearm.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215. 

Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension); 80 degrees of palmar flexion; 45 degrees of ulnar deviation; and 20 degrees of radial deviation.  See 38 C.F.R. § 4.71, Plate I.

Under Diagnostic Code 5214, ankylosis of the wrist, favorable ankylosis in 20 to 30 degrees dorsiflexion warrants a 20 percent rating for the minor wrist and a 30 percent rating for the major wrist.  Ankylosis in any other position, except favorable, warrants a 30 percent rating for the minor arm and 40 percent rating for the major arm.  For unfavorable ankylosis of the wrist in any degree of palmar flexion or with ulnar or radial deviation, a 40 percent rating is warranted if the minor wrist is affected, while a 50 percent rating is warranted for the major wrist. 

The Veteran's December 2003 VA examination showed that the Veteran was able to flex the wrist to 80 degrees and extend it to 70 degrees.  Range of motion in the other planes was substantially full.  At the July 2009 VA examination, the wrists showed no active synovitis, with 40 to 50 degrees flexion and 20 degrees extension.  The April 2010 VA examination showed the Veteran's right wrist had tenderness on palpation and warmth.  There was no significant effusion, but there was limited range of motion to 20 degrees extension and 50 degrees flexion bilaterally.  There was also decreased full flexion in the right hand.

Each wrist is already in receipt of the maximum 10 percent evaluation under Diagnostic Code 5215.  In order to warrant a higher rating under Diagnostic Code 5215, there must be evidence of favorable or unfavorable ankylosis.  Here, neither private nor VA treatment records reflect ankylosis, and examiners have found no fixed position of either wrist.  To the contrary, physical examination has disclosed substantial range of motion in each plane.  Therefore, the more probative evidence establishes that there is no ankylosis at this time.  As such, ratings in excess of 10 percent on the basis of favorable or unfavorable ankylosis of the wrist are not warranted.  Nor is there evidence of neurologic impairment in the wrist.  Strength is 5/5, and there is no muscular atrophy.  

In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination.  See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59.  As already noted, however, the Veteran is receiving the maximum evaluation available for limitation of wrist motion.  Moreover, although she reports pain throughout range of wrist motion testing, this can not equate to ankylosis for the purpose of applying Diagnostic Code 5214.  See generally, Mitchell v. Shinseki, 25 Vet. App. 32, 42 (2011) (rejecting the argument that an appellant should be given the maximum disability ratings under range of motion diagnostic codes simply because he or she experiences pain throughout the range of motion).

The Board has considered the applicability of other diagnostic codes, but has found none.  The Board notes in this regard that the bilateral wrist disability is not shown to cause any hand impairment.

Finally, the Board has also considered the Veteran's statements regarding the severity of her right and left wrist symptoms.  Again, as a lay person, the Veteran is competent to attest to physical symptoms that she experiences, such as persistent wrist pain.  See Washington, 19 Vet. App. at 368.  Generally, she has been credible; however, neither the medical evidence nor the lay evidence of record suggests that evaluations in excess of 10 percent are warranted at this time.  Her statements were non-specific and failed to establish a greater degree of functional impairment.  Here, the medical findings directly address the criteria under which the Veteran's wrist disabilities are evaluated.  The Board finds the medical evidence to be far more probative of the degree of impairment that her lay statements. 

D.  Residuals of Abdominal Adhesions

Factual Background

The Veteran was granted service connection for residuals of abdominal adhesions and assigned a 0 percent or noncompensable disability rating effective February 1, 1988.  In a March 17, 2010 rating decision, the Veteran's disability rating was increased to 10 percent disabling effective July 1, 2009, the date of the Veteran's VA examination.  

At a July 2003 VA examination, it was noted that the Veteran had a cholecystectomy in 2002.  There was no new abdominal pain related to her adhesions.  She reported that generally she had occasional sharp or crampy abdominal pain and had "bowel issues", but was inconsistent in describing what these were and it was unclear to the examiner.  She had a bowel movement every two to three days and sometimes had diarrhea, although she noted this was rare.  The Veteran had had no gastrointestinal studies.  The examiner observed that there were no medical notes regarding abdominal problems in the past six months.  There was no hematemesis or melena.  She used a stool softener and laxative daily.  The Veteran reported she had gained about 10 pounds in the last year.  She had no significant anemia.

The examination showed the abdomen to be supple and nontender.  There was no organomegaly or masses.  The Veteran had a a large right upper abdominal scar which was pink and well-healed.  Her older mid/lower abdominal scars were well healed and nontender.  There was no tenderness to palpation of the areas underlying these scars.

At a July 2009 VA examination, the examiner noted that the Veteran's claims file had been reviewed.  The examiner noted that the Veteran had episodes of abdominal colic, nausea or vomiting, and abdominal distention.  There was gnawing or burning pain which occurred daily or more often before eating and one to several hours after eating at night.  There was no evidence of significant weight loss or malnutrition, and the Veteran's iron was not low.  

Rating Criteria and Analysis

The Veteran's abdominal adhesions have been rated under Diagnostic Code 7301 for peritoneal adhesions.  Mild peritoneal adhesions warrant a noncompensable (0 percent) rating.  38 C.F.R. § 4.114, Diagnostic Code 7301.  Moderate adhesions 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 distension warrant a 10 percent evaluation.  Moderately severe adhesions warrant a 30 percent rating and are manifested by partial obstruction with delayed motility of barium meal and less frequent and less prolonged pain.  Id. Severe adhesions, with definite partial obstruction, shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage, warrant a 50 percent rating.  Id.  

The July 2003 VA examination report as well as lay complaints of the Veteran indicate that she had reported some pain and constipation due to her abdominal adhesions prior to July 1, 2009.  Resolving reasonable doubt in the Veteran's favor, the Board finds an initial rating of 10 percent for the Veteran's residuals of abdominal adhesions prior to July 1, 2009 have been met.

With respect to whether a rating higher than 10 percent is warranted at any time during the appeal period, the Veteran has reported experiencing pain, nausea, diarrhea, and constipation due to her abdominal adhesions, but physical examination shows that she does not have any obstruction.  A 10 percent rating contemplates 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 distension.  The Veteran's symptoms fall squarely under these described manifestations.  Conversely, the 30 percent rating contemplates moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain than the 50 percent rating which in turn contemplates severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, and with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.  The Veteran does not have the criteria described for the 30 or 50 percent rating.  In particular, there is no obstruction demonstrated on VA examination or in the records.  Moreover, the VA examination reports uniformly show no severe impairment.  The most recent report resolved any ambiguity regarding whether there was moderately severe impairment, concluding that such impairment was not evident. 

The Veteran is certainly competent to report pain and gastrointestinal symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  However, the VA examiner's opinion is more probative than the Veteran's personal assertions because the examiner is an expert, examined the Veteran, reviewed her history, and performed the necessary examination.   See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.)

The Board has also considered whether any of the other diagnostic codes pertaining to abdominal impairment should be applied, but finds that they are relevant to other specifically diagnosed gastrointestinal disorders, which the Veteran does not have and which are not service-connected.  The most similar disability, stomach injury, which could serve for an analogous rating, is also rated under Diagnostic Code 7301.  As such, the Veteran's disability is properly rated under Diagnostic Code 7301.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence shows that the Veteran's abdominal adhesion residuals warrant a 10 percent disability rating, but not higher, for the entire period under consideration. 

E.  Extraschedular Consideration

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

With regard to the Veteran's service-connected major depressive disorder, residuals of stress fracture of the left leg, bilateral hip disorder, bilateral knee disorder, bilateral wrist disorder, and residuals of abdominal adhesions, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's orthopedic disabilities specifically contemplate all symptoms of those disabilities.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5215, 5251, 5252, 5253, 5257, 5260, 5261, and 5262 (2013).  Specifically, the Veteran reports pain, limited range of motion due to pain, and limited physical activity associated with the disorders.  The diagnostic codes themselves refer to range of motion.  However, pursuant to 38 C.F.R. § 4.40 to 4.45, VA considers the functional impact of factors such as pain, weakness and incoordination as part of the proper determination of the schedular rating.  Consequently, those factors are contemplated by the pertinent diagnostic codes.  The rating criteria for the Veteran's major depressive disorder and residuals of abdominal adhesions provide for higher ratings for more severe symptomatology.  The pertinent diagnostic codes in the present case take into account the Veteran's reported symptomatology of her service connected major depressive disorder and residuals of abdominal adhesions.  In fact, concerning the major depressive disorder, the rating criteria are specifically inclusive of and based upon occupational and social impairment.  The Board points out that the Veteran's symptomatology of her residuals of abdominal adhesions including episodes of abdominal colic, nausea or vomiting, abdominal distention, and gnawing or burning pain is fully contemplated by the pertinent diagnostic criteria.  As the Veteran's disability picture is contemplated by the rating schedules for the disabilities at issue, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the rating assigned to the Veteran's service-connected major depressive disorder, residuals of stress fracture of the left leg, bilateral hip disorder, bilateral knee disorder, bilateral wrist disorder, and residuals of abdominal adhesions present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013).  Thus, referral of these issues to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.

II.  Service Connection Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303.  As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 5342 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 

In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

In this decision, the Board has considered the lay evidence as it pertains to the issue.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra.

Sjogren's Syndrome

The Veteran asserts that her symptoms of dry mouth, dry eyes, intermittent sensation of smelling (often in the middle of the night) and intermittent oral cavity mucosal ulcerations are due to Sjogren's syndrome.  

The Veteran's treatment records and VA examination show a diagnosis of Sjogren's syndrome had been considered, but was not part of her diagnosis in the December 2003 VA examination.

VA progress notes dated in February 2003 indicate that the Veteran had been treated for dry eyes and dry mouth for some time.  The examiner noted that a work-up for Sjogren's syndrome had included not only serologies for autoimmune phenomenon, but also a lip biopsy in 1998.  The Veteran reported her recollection was that she had the biopsy and it was positive for Sjogren's syndrome, but the examiner noted that the biopsy report was negative for Sjogren's syndrome.  

At her July 2009 VA examination, the examiner noted that the Veteran had a history of dry mouth and recurrent oral cavity ulcers; and a history of olfactory abnormal perceptions (hallucinations).  The examiner further noted that many medical problems and known or suspected diagnoses that included Sjogren's syndrome in 1999.  The examiner did not see any specific connection between anything that occurred during the Veteran's active military service and the troublesome symptoms that she had been experiencing over the past several years.

In a May 2010 addendum to an April 2010 VA examination, the examiner diagnosed the Veteran with Sjogren's syndrome.  The examiner noted that chronic fatigue syndrome, arthralgias, and arthritis developed during active duty service and subsequently the Veteran was diagnosed with systemic lupus erythematous (SLE) and Sjogren's syndrome.  The examiner indicated that fibromyalgia was diagnosed at a later time but within one year of active military service; therefore the examiner opined that it was more likely than not that the above noted conditions (to include the Sjogren's syndrome) were related or proximately related to active military service.  The examiner's rationale was that there was a well-recognized overlap in symptomatology for all of these conditions, which included multiple joint involvement with arthralgias, myalgias, and recurrent significant fatigue.

The Board notes that there is now no medical opinion evidence weighing against the claim for service connection for Sjogren's syndrome.  The evidence in fact shows that the Veteran's Sjogren's syndrome symptoms overlapped those conditions for which service connection is in effect.  As a result, entitlement to service connection for Sjogren's syndrome is warranted.  


ORDER

Entitlement to an initial disability rating in excess of 30 percent for service connected major depressive disorder is denied.

Entitlement to a disability rating in excess of 20 percent for service-connected residuals of stress fracture of the left leg is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected right hip disability is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected left hip disability is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected right knee disability is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected left knee disability is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected right wrist disability is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected left wrist disability is denied.

Entitlement to a 10 percent initial disability rating for service-connected residuals of abdominal adhesions prior to July 1, 2009 is granted.

Entitlement to a disability rating in excess of 10 percent rating for service-connected residuals of abdominal adhesions prior to July 1, 2009 and thereafter is denied. 

Entitlement to service connection for Sjogren's syndrome is granted.


REMAND

After reviewing the record, the Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that she is afforded every possible consideration.  38 C.F.R. § 19.9 (2013). 

After review of the report of the examination dated in April 2010, the Board finds that it is inadequate for rating purposes with respect to the bilateral ankle and bilateral elbow disabilities.  The Veteran's bilateral ankle and bilateral elbow disabilities are currently rated under Diagnostic Codes 5271 and 5206, which require that the conditions be rated on limitation of the affected part.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5271 and 5206 (2013).  The April 2010 VA examiner did not report range of motion testing of the ankles or elbows.  In addition, the recent examinations in July 2009 and April 2010 did not render an opinion concerning whether the Veteran's migraine headaches were related to her active duty service.

As for the shoulder disabilities, the examiners did not adequately address functional impairment due to pain.

Therefore, the Board finds that remand is necessary for re-examination.  Range of motion testing results for the ankles, elbows, and shoulders must include the point at which pain begins (in degrees) along with findings for any decrease in range of motion following repetitive motion testing.  In addition, an examination is warranted to obtain an opinion on the Veteran's migraine headaches.

Accordingly, the case is REMANDED for the following action:

1.  The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's remaining claims.

2.  The Veteran should be afforded comprehensive orthopedic examinations to ascertain the current severity of service connected bilateral ankle, bilateral elbow, and bilateral shoulder disabilities.  The claims file and any pertinent evidence in Virtual VA or VBMS that is not contained in the claims file should be made available to the examiners.  The RO or the AMC should ensure that the examiners provide all information required for rating purposes.  In particular, the range of motion testing results for the ankles, elbows, and shoulders must also include the point at which pain begins (in degrees) along with findings for any decrease in range of motion or increased pain following repetitions of motion.  The claims folder and a copy of this REMAND should be reviewed by the examiner(s), the examiner(s) must annotate on the examination reports that the claims file was in fact made available for review in conjunction with the examinations.

3.  The Veteran should be afforded a VA examination to determine the nature and etiology of any currently present migraine headaches.  The claims file and any pertinent evidence in Virtual VA or VBMS that is not contained in the claims file should be made available to the examiner.  

The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any migraine headaches found are etiologically related to the Veteran's active duty service.

If the examiner cannot express any part of the requested opinion, the examiner should explain the reasons therefor.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The rationale for any opinions offered should be explained by the examiner.

4.  Thereafter, the RO/AMC should readjudicate the issues remaining on appeal.  If the determinations remain unfavorable to the appellant, she and her representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered.  The appellant and her representative should be given an appropriate opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs