Citation Nr: 1400741	
Decision Date: 01/08/14    Archive Date: 01/23/14

DOCKET NO.  05-03 656	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for hepatitis-C infection.

2.  Entitlement to service connection for a chronic abdominal disorder.

3.  Entitlement to service connection for residuals of a head injury/concussion.

4.  Entitlement to service connection for residuals of an eye injury/abrasion.

5.  Entitlement to service connection for residuals of a spider bite.

6.  Entitlement to service connection for a chronic bilateral ankle disorder.

7.  Entitlement to service connection for a chronic bilateral hip disorder.

8.  Entitlement to service connection for a chronic bilateral shoulder disorder.

9.  Entitlement to service connection for a chronic bilateral leg disorder.

10.  Entitlement to service connection for residuals of a heat injury.

11.  Entitlement to service connection for hypertension (also claimed as heart murmur).

12.  Entitlement to service connection for renal cysts in both kidneys, claimed as due to asbestos exposure.

13.  Entitlement to service connection for a chronic respiratory disorder, claimed as due to asbestos exposure.

14.  Entitlement to service connection for a chronic eye disorder, claimed as due to asbestos exposure.

15.  Entitlement to service connection for a right hand disorder.

16.  Entitlement to service connection for a right knee disorder.

17.  Entitlement to service connection for a left knee disorder.

18.  Entitlement to an initial evaluation higher than 10 percent for the service-connected cervical spine disability prior to November 7, 2006, and to a rating higher than 20 percent from that date.

19.  Entitlement to an initial evaluation higher than 10 percent for the service-connected lumbar spine disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from December 1985 to November 1989.  He served in the Army Reserve from November 1989 to September 2001, including periods of active duty for training (ACDUTRA) from April 1990 to July 1990 and from February 1996 to February 1997.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that denied service connection for the disorders shown on the title page, including claimed disorders of the cervical and lumbar spine.  In November 2004 the RO issued a rating decision that granted service connection for the claimed lumbar and cervical spine disabilities effective from August 2, 2002, and the Veteran thereupon appealed the initial ratings assigned by the RO.

During the course of the appeal the Veteran requested hearings before the RO's Hearing Officer, before the Board at the RO ("Travel Board" hearing) and also at the Board's Central Office.  He was scheduled to testify before the RO's Hearing Officer in March 2006, but he cancelled that hearing; he also failed to appear at a scheduled Travel Board hearing in April 2009 and at scheduled Central Office hearings in November 2012 and February 2013.  In May 2013 the Veteran's Law Judge who had been designated to preside over the most recently-scheduled Central Office hearing denied a request by the Veteran to reschedule the hearing, based on a determination that the Veteran had not shown good cause for failing to appear.

In September 2009 the Board remanded the issues on appeal to the RO for additional development action, which has been accomplished to the extent possible.  Stegall v. West, 11 Vet. App. 268 (1998).   

A request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  According to VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim; if the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a).  See VAOGCPREC 6-96.  VA General Counsel opinions are binding on the Board.  See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507.

In this case, the Veteran has asserted being unemployable due to a number of factors, including the various disorders for which he also seeks service connection, but he has not asserted being unemployable solely due to the service-connected cervical and lumbar spine disabilities on appeal.  The Board accordingly finds that a claim for TDIU is raised, but must be referred to the Agency of Original Jurisdiction for appropriate action.


FINDINGS OF FACT

1.  The Veteran is not shown to have been exposed to asbestos during service or to have a current asbestos-related disease.

2.  The evidence is at least in equipoise in showing that the Veteran was identified as having the hepatitis C virus during service.

3.  The Veteran does not have a chronic abdominal disorder that is etiologically related to service.

4.  The Veteran does not have chronic disabilities that are residual to head injury, heat injury or spider bite in service.

5.  The Veteran does not have a chronic eye disorder that is residual to injury in service or otherwise etiologically related to service.

6.  The Veteran does not have chronic disabilities of the bilateral ankles, hips, legs or shoulders that are etiologically related to service.

7.  Hypertension was not shown in service or to a compensable degree during the first year after discharge from service, and current hypertension is not etiologically related to service. 

8.  The Veteran does not have renal cysts or stones that are etiologically related to service. 

9.  The Veteran does not have a chronic respiratory disorder that is etiologically related to service. 

10.  The Veteran does not have disorders of the right hand, right knee or left knee that are etiologically related to service.

11.  Prior to November 7, 2006, the Veteran's service-connected cervical spine disability was manifested by slight limitation of motion with flexion to 45 degrees and combined range of motion of 320 degrees, with pain at the extremes of motion; there were no qualifying incapacitating episodes of intervertebral disc syndrome (IVDS) and no separately compensable neurological deficits.

12.  From November 7, 2006, the Veteran's service-connected cervical spine disability has been manifested by moderate limitation of motion with flexion to 20 degrees and combined range of motion of 315 degrees, with pain at the extremes of motion; there have been no qualifying incapacitating episodes of IVDS and no separately compensable neurological deficits.

13.  From August 2, 2002, the Veteran's service-connected lumbar spine disability has been manifested by slight limitation of motion with flexion to 60 degrees or better and combined range of motion of 210 degrees or better; there have been not more than two qualifying incapacitating episodes of IVDS within a 12-month period and no separately compensable neurological deficits. 


CONCLUSIONS OF LAW

1.  The requirements for entitlement to service connection for hepatitis-C infection are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

2.  The requirements for entitlement to service connection for a chronic abdominal disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  
 
3.  The requirements for entitlement to service connection for residuals of a head injury/concussion are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  
 
4.  The requirements for entitlement to service connection for residuals of an eye injury/abrasion are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

5.  The requirements for entitlement to service connection for residuals of a spider bite are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

6.  The requirements for entitlement to service connection for a chronic bilateral ankle disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

7.  The requirements for entitlement to service connection for a chronic bilateral hip disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

8.  The requirements for entitlement to service connection for a chronic bilateral shoulder disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  
 
9.  The requirements for entitlement to service connection for a chronic bilateral leg disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  
 
10.  The requirements for entitlement to service connection for residuals of a heat injury are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

11.  The requirements for service connection for hypertension are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).  
 
12.  The requirements for entitlement to service connection for renal cysts in both kidneys are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 

13.  The requirements for entitlement to service connection for a chronic respiratory disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).   

14.  The requirements for entitlement to service connection for a chronic eye disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).   

15.  The requirements for entitlement to service connection for a right hand disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).   

16.  The requirements for entitlement to service connection for a right knee disorder are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).  

17.  The requirements for entitlement to service connection for a left knee disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 

18.  The requirements for an initial evaluation higher than 10 percent for the service-connected cervical spine disability prior to November 7, 2006, and for a rating higher than 20 percent from that date, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5287, 5290, 5293 (2003); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013).

19.  The requirements for an initial rating higher than 10 percent for the service-connected lumbar spine disability are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5293 (2003); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 

The RO provided pre- and post-adjudication VCAA notice by letters dated in September 2002, March 2006, and June 2008.  As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  

To the extent that any of the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  This procedural defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated, as evidenced by the supplemental statement of the case in June 2011.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).  The Veteran has not identified any prejudice due to error in the content or timing of the notice provided.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  Service treatment records (STRs) related to the Veteran's active service from December 1985 to November 1989 and from his first period of ACDUTRA from April 1990 to July 1990 are not available.  A July 2003 letter from the Commanding General, 335th Signal Command, states the Veteran's service records were apparently lost after being turned in to his previous unit and were never received by the 335th Signal Command.  The RO has pursued the missing records from the national level, from the Veteran's Army Reserve units and directly from the service hospitals cited by the Veteran, without success.  In sum, the Board finds that any further efforts to obtain the missing STRs would be futile.  STRs relating to the Veteran's last period of ACDUTRA (February 1996 to February 1997) are of record.

The RO has also obtained post-service VA and private treatment records from providers identified by the Veteran, as well as the disability file from the Social Security Administration (SSA).  As noted in the Introduction, the Veteran was offered several opportunities to testify before the Board but he failed without good cause to appear.

The Board previously remanded the case for additional medical examinations, which were scheduled in May 2011.  The Veteran failed without explanation to report for examination.  When a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record; see 38 C.F.R. § 3.655(a).
When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied; see 38 C.F.R. § 3.655(b).

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal.

Entitlement to Service Connection

Legal Principles

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013).  

Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis or cardiovascular disease including hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the 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).

Evidence and Analysis

Asbestos exposure

The Veteran attributes several of his claimed disorders (renal cysts in both kidneys, chronic respiratory disorder and chronic eye disorder) to exposure to asbestos in service.  The Board will accordingly consider, as a threshold matter, whether exposure to asbestos in service is shown.

There is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases.  However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims; see VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, subpart ii, 2.C.9 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.2.ii.C.9.").  

In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure; see VAOPGCPREC 4-00.  Based on the foregoing, the VA must analyze the Veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols.  See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

Common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials and thermal insulation.  M21-1MR, IV.ii.2.C.9.a.

Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate).  M21-1MR, IV.ii.2.C.9.b.

Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and mesothelioma.  Disease-causing exposure to asbestos may be brief and/or indirect.  Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c.  
 
The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  M21-1MR, IV.ii.2.C.9.d.

A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  M21-1MR, IV.ii.2.C.9.e.

Some of the major occupations involving exposure to asbestos include mining; milling; working in shipyards; insulation work; demolition of old buildings;  carpentry and construction; manufacture and servicing of friction products such as clutch facings and brake linings; and, manufacture and installation of such products as roofing and flooring materials, asbestos and cement sheet and pipe products and military equipment.  Exposure to any simple kind of asbestos is unusual except in mines and mills where the raw materials are produced.  M21-1MR, IV.ii.2.C.9.f.

High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers.  M21-1MR, IV.ii.2.C.9.g.

When deciding a claim for service connection for a disability resulting from an exposure to asbestos, VA must determine whether service records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above.  M21-1MR, IV.ii.2.C.9.h.

The Court has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.9.f-g cited above) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos.  Dyment v. West, 13 Vet. App. 141, 145 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).  Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.  VAOPGCPREC 4-00 (April 13, 2000).

In regard to asbestos exposure, service treatment records (STRs) include a February 1996 treatment note from NAS Pensacola in which the Veteran requested an asbestos screen, citing exposure to asbestos in 1980 (i.e., prior to service).  Thereafter, the Veteran executed an undated Asbestos Medical Surveillance Questionnaire in which he endorsed a history of occupational exposure to asbestos during the period January-May 1980 while working at Fort Bragg, North Carolina, for a firm called Insulation Incorporated.  During that period he wore protective equipment including Tyvek coveralls and a filtration mask.  He also specifically denied exposure to asbestos during Department of Defense duties.  Although the form is undated, he reports therein that he had stopped smoking in January 1996, so the report was evidently executed in conjunction with the referral cited above.

STRs also include a Medical Surveillance Questionnaire dated in March 1996 in which the Veteran endorsed a history of occupational asbestos exposure during the period November 1979-May 1980 with Insulation Incorporated as cited above; he also reported a history of in-service asbestos exposure during the period September 1987 to September 1989 removing and disposing of asbestos insulation at Ayers Kaserne in Frankfurt, Germany.  The Veteran stated he had no protective gear during this period.

The Veteran presented to the VA Primary Care Clinic (PCC) in December 2005 for scheduled follow-up of various disorders, during which the clinician noted the Veteran's history of reported asbestos exposure.  The clinician noted that chest X-ray in 2002, and computed tomography (CT) studies in 2002, 2003 and 2004 had not shown abnormalities consistent with asbestos-related disease.  Subsequent treatment records acknowledge the Veteran's account of remote exposure to asbestos, but there is no indication he has ever been diagnosed with an asbestos-related disease such as mesothelioma.  Further, while the Veteran has been treated for a host of disorders, none of those disorders have ever been clinically attributed to past asbestos exposure.

The Veteran asserts he was exposed to asbestos in West Germany.  Service personnel records show that during assignment to Germany he served in military occupational specialty (MOS) 31V, Unit Level Communications Maintainer.  The duties associated with this MOS pertain to tactical communications systems (tactical radio and field wire systems), which are not activities associated with asbestos exposure in M21-1MR, IV.ii.2.C.9.f cited above.

The Veteran appears to assert that he participated in demolition or repair of barracks buildings in Germany.  Nothing in service personnel records, to include several letters of commendation issued to him in Germany, corroborates that he performed such duties.  In any event, the Veteran has not articulated the reasons he believes that the buildings occupied by United States forces in Germany has asbestos, nor has he provided any documentation of such contamination.

In sum, the Board finds the evidence of record does not show the Veteran was exposed to asbestos in service or that he has a current asbestos-related disorder.  The Board will proceed with adjudication of the issues on appeal on that basis.


Service connection for hepatitis C infection

The Veteran asserts he contracted hepatitis-C virus (HCV) during service in 1986.  Service treatment records (STRs) from that period are not available.

The Veteran presented to the VA hospital in Fayetteville, North Carolina, in September 1992 for evaluation of abnormal liver function tests (LFTs) that had reportedly been discovered in the summer of 1986 during blood donation.  The Veteran had not been followed-up at the time because he was transferred to Germany thereafter and had been discharged from service in November 1989.  

A VA consultation in April 1993 states the Veteran had been confirmed with chronic HCV antibodies.  The Veteran had a VA medical examination in December 1993 in which he reported diagnosis of HCV in 1986.  Clinical examination was unremarkable; the diagnosis was elevated LFT with positive HCV antibody revealed on workup.  

The Veteran subsequently had a period of ACDUTRA from February 1996 to February 1997.  STRs from that period show the Veteran was referred in May 1996 for evaluation of hepatitis.  The Veteran was noted to have had a positive hepatitis screen approximately 10 years earlier, which kept him from being a blood donor thereafter.  The clinical impression was hepatitis screen positive by history with no clinical evidence of disease.  

Army Reserve treatment records dating from after the Veteran's last period of ACDUTRA include an examination in August 1999 in which he was noted to have had diagnosis of HCV in 1986 and had been advised to take Interferon.  

VA computed tomography (CT) scan of the abdomen in January 2002 showed the liver to be intact.  VA ultrasound of the abdomen showed the liver to be fairly homogeneous; the clinical impression was HCV with hepatic insufficiency.  The Veteran had a VA HCV consult in August 2002 that noted HCV had first been identified in 1986.  The Veteran had a VA GI clinic consult in December 2002 during which he was noted to have many chronic complaints.  The impression was chronic HCV and questionable personality disorder or other mental illness.  The clinician noted that treatment with Interferon might be precluded by the Veteran's mental condition.

The Veteran had a VA psychology consult in April 2003, relative to his pending treatment for HCV.  The Veteran complained of HCV for over ten years, with treatment that had not "worked out," and he also complained of chronic pain in multiple joints.  The psychologist noted the Veteran was being treated simultaneously by a number of different VA specialty clinics in several different locations, resulting in inconsistent and sometimes conflicting findings.  

A VA PCC note in October 2003 states the Veteran had a good genotype that would respond well to treatment, but the Veteran had repeatedly stated he was not interested in treatment for his HCV, probably because he was asymptomatic.  

The Veteran had a VA-contracted medical evaluation in August 2004.  The examiner noted the Veteran had been suffering from HCV infection that was identified in May 1986 in conjunction with a blood donation.  The condition resulted in chronic fatigue and weight loss (the Veteran's body weight went from 227 pounds to 175 pounds within a two-month period), but exercise and diet had increased his strength and his muscle mass.  The Veteran reported frequent left-side abdominal colic-type pain associated with abdominal distention.  He also reported easy fatigability, arthralgia and gastrointestinal disturbances that occurred two-thirds of the year but were tolerable.  The Veteran denied incapacitating episodes, vomiting of blood or black/tarry stools.  He had not required abdominal tapping for his liver condition and was not currently receiving treatment.  The infection did not cause functional impairment or result in any time lost from work.  A hepatitis panel was negative for hepatitis-A antibody and hepatitis-B surface antigen but positive for hepatitis-B core antibody and for HCV.    

Review of the evidence above demonstrates the Veteran is positive for HCV antibody.  Further, the VA providers cited above have stated the Veteran's HCV is the likely cause of his diffuse arthralgia-like joint pains and his reported fatigue.  Accordingly, the first element of service connection - medical evidence of a disability - is met.

The Veteran has reported he was identified with the virus during service in 1986, and because STRs relating to that period are not of record, the Veteran is considered competent to report about factual matters about which he had firsthand knowledge, including experiencing pain during service, reporting to sick call, and undergoing treatment.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, the Veteran's reports were made not only to VA for purpose of adjudicating entitlement to service connection, but also to numerous medical providers treating his condition; in that regard, lay statements made while medical treatment was being rendered may be afforded high probative value, and statements made for the purpose of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care.   Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  For these reasons, the Board finds it is at least as likely as not that the Veteran's HCV infection was incurred in service, as he contends.

Based on the evidence and analysis above, the Board finds the criteria for service connection for HCV infection are met.  The benefit of the doubt in regard to this issue has been resolved in the Veteran's favor.
 
Service connection for a chronic abdominal disorder

The Veteran contends he developed abdominal problems consequent to heavy lifting while he was stationed in Germany.  STRs from that period are not available.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any abdominal complaints.  Examination of the digestive system and musculoskeletal system was "normal."

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show treatment in April 1996 for two days of nausea and vomiting, assessed as gastroenteritis; STRs are otherwise silent in regard to any abdominal complaints, to include hernia.
  
STRs relating to the Veteran's Army Reserve service after his last period of ACDUTRA include a self-reported Report of Medical History in August 1999 in which the Veteran endorsed a history of digestive problems (frequent indigestion and stomach, liver or intestinal trouble).  However, the corresponding Report of Medical Examination stated the abdomen and viscera were clinically "normal" and again there is no indication of hernia.

The Veteran presented to the VA emergency room (ER) in November 2001 complaining of a non-painful bulge in the left inguinal area.  The clinical impression was small inguinal hernia.

VA abdominal ultrasound in May 2002 was essentially normal.

The Veteran had a VA orthopedic consult in December 2003 in which he reported having been diagnosed with "heavy object syndrome" in 1987, associated with abdominal strain.  He also developed a hernia.

The Veteran had a VA-contracted medical evaluation in August 2004.  The Veteran complained of abdominal problems since 1987, associated with heavy lifting.  His problem was manifested by frequent colic-type pain in the left lower inguinal area and not associated with abdominal distention.  He reported suffering from constipation alternating with diarrhea.  Examination of the abdomen was unremarkable, with no tenderness elicited; the Veteran declined genital examination so the report is silent in regard to hernia.  Laboratory values were essentially unremarkable.  The examiner stated there was no current abdominal pathology shown on which to render a diagnosis and no evidence of a chronic abdominal problem.

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders.  The clinician noted history of reducible left inguinal hernia; the Veteran was considering surgical correction.

The file contains an August 2006 general surgery consult in which the Veteran reported a 5-year history of left inguinal hernia (i.e., since approximately 2001).  The Veteran stated the hernia caused him minimal discomfort, and he declined surgery.

The Veteran presented to the VA PCC in October 2007 complaining that his inguinal hernia had become larger.  The clinician advised the Veteran to seek another surgical consultation since the hernia no longer appeared to be reducible.  No other abdominal abnormalities were noted on examination.  The Veteran had a surgical consultation in November 2007 but was ambivalent about having surgery on the hernia.  

The Veteran presented to the VA PCC in January 2008 complaining of intermittent recent diarrhea.  He endorsed having a good appetite and denied abdominal pain or significant change in bowel movements.  The clinician noted that previous GI workups had been unremarkable except for gallstones and inguinal hernia.  The clinical impression was possible intermittent irritable bowel syndrome (IBS), but follow-up to rule out some sort of intestinal blockage.

In March 2008 the Veteran called the VA PCC to complain of abdominal pain and swelling for eight years, with associated bowel dysfunction.  He denied severe persistent pain, fainting, lightheadedness, vomiting blood or dark coffee ground-like emesis, bloody or black stool, nausea, vomiting, fever, blood in the urine or painful or difficult urination.  He was advised to seek medical attention if his reported symptoms worsened of if any of the listed symptoms became manifest. 

In September 2008 the Veteran presented to the VA ER complaining of worsened hernia; he was amenable to surgery but not until after December.  

The Veteran presented to the VA ER in April 2009 complaining of black stools for three days; he was noted to have had emergent cholestectomy (gallstone removal) by a private provider three weeks earlier.  He also reported nausea, weakness and sharp epigastric pain and voiced concern the gallstones were coming back.  The Veteran's stool sample was guiac negative.  The impression was reassuring clinical examination and workup post-cholestectomy, with no evidence of biliary obstruction.

The Veteran underwent VA bilateral hernia repair surgery in July 2009.  

Review of the evidence above does not show the Veteran to have a diagnosed chronic abdominal disorder that is related to service.  He has had intermittent hernia problems, but these began in 2001, many years after discharge from service.  He has also had intermittent complaints of digestive symptoms (diarrhea, constipation, etc.) but there is no established clinical diagnosis of an underlying digestive disease and no indication that such symptoms are related in any way to service.

The Board acknowledges that the Veteran asserts having been treated for "heavy lifting syndrome" in service during a period for which STRs are not available.  He is considered to be competent to report treatment.  Washington, 19 Vet. App. 362.  However, even affording him full competence and credibility in reporting treatment during service, there is no indication of current disability that is related to such treatment.  The Army Reserve examination in August 1999, several years after service, demonstrates the Veteran did not have a chronic abdominal disorder at that time, and the VA-contracted medical evaluation in August 2004 also demonstrates there was no current abdominal disorder or hernia several years after discharge from service.  Further, no medical provider has asserted a relationship between a current hernia or abdominal symptoms to remote heavy lifting in service.

The Veteran asserts, by virtue of his claim, that he believes his abdominal disorder to be related to service, but the etiology of abdominal symptoms is a complex medical question that is not within the competence of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011).

As the evidence currently of record does not show the Veteran to have a current abdominal disorder that is incurred in or aggravated by service, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for residuals of a head injury/concussion

The Veteran contends he was treated for head injury/concussion at Fitzsimmons Army Hospital in Denver, Colorado in 1986.  During his last period of ACDUTRA he told medical providers that he had fallen on ice in April 1986 and hit his head.   In August 2002, December 2002, June 2003 and August 2004 he told various VA providers that he had been hit on the head by a heavy door during a "shoving" altercation with other soldiers.  In August 2004 he told a VA-contracted examiner that he had been hit on the head during an assault and robbery.  In September 2004 he told a VA mental health examiner that he had been hit on the head by a doorknob as a child, requiring stitches, and that he had been stabbed between the eyes with a razor knife in 1983 (prior to service), but also reported that he was hit on the head by a door in 1986 during a shoving altercation, resulting in hospital treatment for concussion.

STRs from 1986, the time the Veteran asserts having been treated for concussion, are not available.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any neurological complaints suggestive of traumatic head injury.  The clinical neurological examination was "normal."

STRs associated with the Veteran's Army Reserve service include a Report of Medical Examination in August 1995 in which the Veteran was noted to have a history of overnight hospitalization for concussion with loss of consciousness for 5-10 minutes after a fall on the ice in April 1986.  The report is silent in regard to current residuals. 

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs from that period are silent in regard to any neurological complaints.

STRs from the Veteran's Army Reserve service following his last period of ACDUTRA include an examination in August 1999 in which the head and the neurological system were evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of head injury.

The Veteran had a VA pain clinic consult in August 2002 in which he reported cerebral concussion in 1986.  Thereafter, he had a VA CT scan of the head in August 2002 to follow up his complaint of chronic headaches and questionable post-concussion syndrome; the scan was normal.  VA electroencephalogram (EEG) in March 2003 was also normal.

Because the Veteran's STRs relating to service in 1986 are not available, the Veteran is deemed to be competent to report a head injury in service and treatment in service.  Washington, 19 Vet. App. 362.  However, the Board does not find the Veteran's account of the alleged in-service head injury credible due to the inconsistent statements made regarding the nature of the head injury and, because the Veteran denied a history of a head injury on his August 1999 Report of Medical History.  

There is no competent lay or medical evidence of record showing a current disability that is a residual of in-service head trauma.  The Veteran was not provided with a VA examination to determine whether he in fact has current residuals of a head injury.  However, as there is no credible evidence to show that the claimed disability may be related to service, further development for a VA medical examination or for a VA medical opinion under the duty to assist is not required.  Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required).
 
"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As the evidence of record does not show the Veteran to have a current disability that is a residual of in-service head trauma, the criteria for service connection are not met and the claim must be denied.  Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for residuals of an eye injury/abrasion and for chronic eye disorder

The Veteran contends he was treated for an eye injury/abrasion in Frankfurt, Germany in 1987.  STRs from that period are not available.  He also contends he developed an eye disorder consequent to exposure to asbestos; as discussed above, the Board has found the evidence does not show the Veteran to have been exposed to asbestos during service.  The claim will be adjudicated accordingly.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding the eyes.  The eyes were normal on examination.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show the Veteran was treated by the Optometry Department at Naval Air Station (NAS) Pensacola in December 1996 for complaint of occasional squinting and blurry vision.  The initial impression was possible corneal injury, but the eventual clinical impression was hyperopia (far-sightedness) and no evidence of disease (NED).

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  Subsequent Army Reserve treatment records include an examination in August 1999 in which the eyes (general visual acuity, ophthalmoscopic, pupils and ocular motility) were evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of eye trouble.

The Veteran presented to the VA ER in November 2001 complaining of difficulty focusing, especially when reading.  The clinical impression was questionable decreased visual acuity.  The Veteran was referred to the optometry clinic.

The Veteran presented to the VA PCC in February 2010 for routine follow-up of his health issues.  He reported a feeling of having a foreign body in his right eye, which he stated came from his military work removing asbestos.  The Veteran was convinced that a piece of asbestos had fallen into his right eye and could not be removed, and was now resting near the optic nerve and trying to work itself out.  Clinical examination of the eyes was pupils equal, round and reactive to light (PERRL).  No diagnostic impression of a current eye disorder was noted.

The Veteran had a routine VA ocular evaluation in March 2010.  His only complaint was occasional foreign body sensation (FBS) in the right eye.  Examination did not confirm the presence of a foreign body.  The clinical impression was presbyopia, and FBS right eye with no corneal irritation or tear film abnormalities. 

Because the Veteran's STRs relating to service in 1986 are not available, the Veteran is deemed to be competent to report an eye injury in service and treatment in service.  Washington, 19 Vet. App. 362.  However, even affording the Veteran full competence and credibility in reporting his injury and treatment in service, there is no medical evidence of record demonstrating he has a current disability that is residual to such injury.  In that regard, the only eye disorders shown on the record are hyperopia and presbyopia, both of which are refractive errors of the eye and are not considered to be diseases or injuries for which service connection may be considered.  38 C.F.R. § 3.303(c).

As there is no medical evidence of an eye disorder, the first element of service connection is not met.  Brammer, 3 Vet. App. 223, 225.  The question of whether the Veteran did or did not have an eye injury in service is moot.

The Veteran failed without good cause to report for a VA examination in May 2011 that may have produced a medical opinion regarding current diagnosis and whether or not the claimed disability is related to service; accordingly, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(a).  

As the evidence of record does not show the Veteran to have a current eye disorder for which service connection can be considered, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for residuals of a spider bite

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  However, the Veteran contends that he was treated for a black widow spider bite at Fort Polk, Louisiana in June 1998.  As he was not on ACDUTRA, it follows that he must have been on inactive duty for training (INACDUTRA) at the time.

Inactive Duty for Training is defined as other than full-time training performed by Reserves.  38 U.S.C.A. § 101(23).  Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease other than myocardial infarction, cardiac arrest or cerebrovascular accident (CVA).  38 U.S.C.A. § 101(24). 

STRs from the Veteran's period Army Reserve service after February 1996 are of record, but there is no reference therein to the Veteran having been treated for a spider bite during training at Fort Polk.  Further, there is nothing in the Veteran's medical record to indicate he has had any disability residual to spider bite.

The Veteran was not afforded a VA examination to determine whether he has residuals of an in-service spider bite.  However, the Veteran is competent to report a spider bite injury in service, there is no competent lay or medical evidence of record showing any current chronic disability that may be linked to such injury; and no reported continuity of symptomatology.  Accordingly, an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Veteran is competent to report having been injured during training.  However, that an injury occurred in service alone is not enough; there must be a disability resulting from that condition or injury.  Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Brammer, 3 Vet. App. 223.  As there is no medical evidence of a disability residual to spider bite, there is no claim for service connection that may be considered by the Board.  The Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for a chronic disorders of the bilateral ankles, hips and legs

The Veteran contends he developed recurring injuries to the ankles, hips and legs consequent to general wear-and-tear from his military duties.  He has not cited a specific in-service injury.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding the ankles, hips or legs.  Musculoskeletal examination was normal.

The Veteran subsequently has a period of ACDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding the ankles, hips or legs.

Army Reserve STRS following the Veteran's last period of ACDUTRA include an examination in August 1999 in which the lower extremities were evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of foot trouble, arthritis/rheumatism/bursitis, or deformity of bone or joint.

The Veteran presented to the VA emergency room (ER) in November 2001 complaining of pain in the left hip. He denied recent trauma.  Examination was unremarkable; the clinical impression was possible degenerative joint disease (DJD) of the hips.

A VA PCC note in November 2002 indicated chronic joint pain of the right ankle.

The Veteran had a VA orthopedic consult in December 2003 in which he reported having sprained his right ankle on two occasions during service, but stated the ankle had gotten better over time and was not currently a problem.  

The Veteran presented to the VA orthopedic clinic in January 2006, during which he was noted to have full ROM of the hips without pain.

The Veteran had a VA rheumatology consult in September 2006 to follow-up his report of recent swelling of the ankles.  The clinician stated that the Veteran's symptoms (intermittent ankle swelling since June) may represent inflammatory spondyloarthropathy, given his concurrent back stiffness.  The clinician ordered X-ray of the sacroiliac (SI) joint, but the study showed a normal SI joint with no signs of erosion or sclerosis.   

SSA records include an examination report by Dr. Jack Drummond stating the Veteran had been examined on November 1, 2006, and found to have full ROM of both ankles, but 2+ edema in each ankle.  X-ray of the right ankle revealed soft tissue periarticular swelling.  The examination report is silent in regard to any observed current abnormality of the hips or legs.

The Veteran called the VA PCC in November 2008 to complain of swelling of the ankles.  The Veteran was convinced by internet research that he had gout, despite such diagnosis having been ruled out by VA diagnostics.  When asked directly about his ankle, the Veteran rambled about other health issues.  He subsequently presented to the VA ER, where the clinical impression was cellulitis of the right lower extremity and probable venous stasis of the bilateral lower extremities.  The treatment plan was to perform ultrasound of the lower extremities to rule out deep vein thrombosis (DVT).  Thereafter, ultrasound was performed that showed no evidence of DVT; the Veteran was accordingly prescribed medication for cellulitis.

The Veteran presented to the VA PCC in October 2009 complaining of joint pain in the hands, feet, knees and ankles due to "gout."  The Veteran had previously been worked-up for gout on several occasions, all of which were negative for increased uric acid, but the rheumatologist had acknowledged that gout may flare at lower levels of uric acid.  The current assessment was multiple medical problems, all overshadowed by perseveration on pain medications.

Review of the file does not show an injury during service to the ankles, hips or legs.  The Veteran does not assert treatment in service for any injuries to those areas, and the Army Reserve examination in August 1999, several years after his last period of active service, provides evidence that he did not have a chronic disorder that began during service.

The evidence of record also does not show a clear diagnosed disability of the ankles, hips or legs.  He may have gouty arthritis in the lower extremities that began many years after discharge from service, and he may have cellulitis.  In any case, there is no medical evidence attributing such disorders to active service.

A VA examination was not provided with respect to these claimed disabilities.  The evidence of record does not, however, show in-service injuries, or competent lay or medical evidence of any continuity of symptomatology, linking the Veteran's current disabilities to service.  Rather, the Veteran offers only his own conclusory opinion regarding causation.  The Veteran's contention that any diagnosed disability of the ankles, hips or legs is related to service, by itself, is not sufficient to warrant a VA examination.  There is no evidence of an in-service event, injury, or disease to which the claimed disabilities may be related.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

As the evidence of record does not show the Veteran to have current disabilities of the bilateral ankles, hips or legs that are related to service, the Board finds the criteria for service connection are not met and the claims must be denied. 

Because the evidence on this preponderates against the claims the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


Service connection for a chronic bilateral shoulder disorder

The Veteran contends he developed injuries to the shoulders consequent to diagnosed "chronic heavy lifting syndrome" during service in Germany.  He also asserts general wear-and-tear from his military duties.  STRs relating to the Veteran's period of service in Germany are not available.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding the shoulders.  Musculoskeletal examination was normal.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding the shoulders.

Army Reserve STRS following the Veteran's last period of ACDUTRA include an examination in August 1999 in which the upper extremities were evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of painful or "trick" shoulder.  He also denied a history of arthritis/rheumatism/bursitis, or deformity of bone or joint.

The Veteran presented to the VA PCC in October 2002 requesting referral for chronic shoulder pain.  Examination showed mild palpable tenderness in the right trapezius along the shoulder, but no shoulder disorder was diagnosed.

The Veteran had a VA orthopedic consult in December 2003 in which he complained of sharp pain in the right shoulder.  Again, no shoulder disorder was diagnosed.

Because the Veteran's STRs relating to service in Germany are not available, the Veteran is deemed to be competent to report treatment in service for "heavy lifting syndrome."  Washington, 19 Vet. App. 362.  However, even affording the Veteran full competence and credibility in reporting treatment in service, there is no medical evidence of record demonstrating a diagnosed shoulder disability.  Further, the August 1999 examination in the Army Reserve, which was performed several years after the Veteran's last period of active duty, demonstrates he did not have a chronic disorder of the shoulders that was incurred in active duty.

As there is no medical evidence of a bilateral shoulder disorder, the first element of service connection is not met.  Brammer, 3 Vet. App. 223, 225.  
 
The Veteran was not provided with a VA examination to determine the etiology of his claimed shoulder disability.  However, as there is no evidence of a chronic bilateral shoulder condition or an acute shoulder injury in service; no competent evidence showing that any current bilateral shoulder disabilities may be linked to active service; and no reported continuity of symptomatology, an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As the evidence of record does not show the Veteran to have a current shoulder disorder for which service connection can be considered, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for residuals of a heat injury

The Veteran asserts having had untreated heat injuries during service.  As he reports that these injuries were untreated, the missing STRs are moot.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding a remote heat injury.  Neurological examination was normal.

The Veteran subsequently has a period of ACDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding a remote heat injury.

The Board has carefully reviewed the Veteran's extensive post-service medical treatment record.  At no point therein did the Veteran complain of a remote heat injury during service, and there is nothing in the Veteran's medical record to indicate he has had any disability residual to such injury.

The Veteran is competent to report having had heat injury symptoms during service.  However, that an injury occurred in service alone is not enough; there must be a disability resulting from that condition or injury.  Degmetich, 104 F.3d 1328, 1332; Brammer, 3 Vet. App. 223.  As there is no competent lay or medical evidence of a disability residual to heat injury, there is no claim for service connection that may be considered by the Board.

The Veteran was not provided with a VA examination to determine the etiology of a claimed heat injury.  However, as there is no evidence of this condition in service; no competent lay or medical evidence of current heat injury residuals; no evidence that the claimed disability may be linked to active service; and no reported continuity of symptomatology, an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As the evidence of record does not show the Veteran to have a current disability residual to heat injury, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for hypertension 

The Veteran claims entitlement to service connection for hypertension and for heart murmur.  Heart murmur is a congenital defect and is thus not a "disease or injury" within the meaning of applicable statutes and regulations.  38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996).  However, service connection may be warranted when a congenital defect is subject to a superimposed injury or disease during service.  VAOPGCPREC 82-90 (July 18, 1990).

Under VA rating criteria, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1).

The Veteran contends high blood pressure became manifest in July-August 1986, during active service at Fort Sill, Oklahoma.  STRs from that period are not available.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any history of hypertension.  Current blood pressure was 110/70, and cardiovascular examination was normal.  The examination report is silent in regard to any current heart murmur.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of hypertension.

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  Subsequent Army Reserve treatment records include an examination in August 1999 in which the heart and vascular system were evaluated as "normal" and his blood pressure was 148/96.  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of high or low blood pressure.

The Veteran presented to the VA primary care clinic (PCC) in August 1999 stating he had recently been found by an outside provider to have high blood pressure.  Examination showed his current blood pressure to be 167/78.  The Veteran was diagnosed to be hypertensive and started on medication.

VA echocardiogram (EKG) in December 2001 showed sinus brachycardia but was otherwise normal.

A VA PCC note in November 2002 indicated history of hypertension, but currently normal without medication after weight loss.

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders.  The clinician noted history of hypertension, but the Veteran had met his goal blood pressure without medication.

The Veteran presented to the VA PCC in March 2006 complaining of increased blood pressure and some chronic pleuritic chest pain.  The clinical assessment was uncomplicated elevated blood pressure and chronic chest pain consistent with cardiac angina.  The Veteran's blood pressure medication was resumed.

Review of the file shows the Veteran has been competently diagnosed with hypertension.  Accordingly, the first element of service connection - medical evidence of a disability - is met.

The Veteran asserts he was identified as being hypertensive in 1986.  Because the Veteran's STRs relating to such service are not available, the Veteran is deemed to be competent to report symptoms in service.  Washington, 19 Vet. App. 362.  
However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza, 7 Vet. App. 498.  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility  merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Board finds in this case that the Veteran's account of having been hypertensive since 1986 is not credible because it is internally inconsistent with report in August 1999, several years after his last period of active duty, which denied a history of high blood pressure.  The Board also finds that the August 1999 examination, in which the Veteran's heart and vascular system were evaluated as "normal," demonstrates that he did not have chronic hypertension in service or to a compensable degree within the first year after discharge from service; accordingly, consideration for presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted.

There is nothing in the Veteran's medical treatment record, other than the Veteran's personal opinion, to show a relationship between his claimed hypertension and service.  Hypertension is a multi-factorial disorder, and the etiology of hypertension is not within the competence of a layperson.  Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428.  Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.  Jones v. Brown, 7 Vet. App. 134, 137 (1994).  As there is no such supporting medical opinion, the Board cannot find the Veteran's current hypertension to be related to service.

The Veteran was not provided with a VA examination to determine the etiology of his hypertension.  However, as there is no credible evidence to show that the claimed disability may be related to service, further development for a VA medical examination or for a VA medical opinion under the duty to assist is not required.  Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  

As the evidence of record does not include competent medical opinion showing a relationship of hypertension to service, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


Service connection for renal cysts and stones in both kidneys

The Veteran contends he developed kidney cysts and stones consequent to exposure to asbestos.  As discussed above, the Board has found the evidence does not show the Veteran to have been exposed to asbestos during service.  The claim will be adjudicated accordingly.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding kidney stones or other kidney dysfunction.  Genitourinary examination was normal.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding the kidneys.

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  Subsequent Army Reserve treatment records include an examination in August 1999 in which the genitourinary system was evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of kidney stones or blood in the urine.  

The Veteran presented to the VA acute care clinic (ACC) in September 1999 complaining of a kidney stone, which he had just passed.  He endorsed having had a kidney stone in 1992 as revealed by ultrasound.  X-ray did not show a current kidney stone; the clinical impression was renal lithiasis, passed stone.

VA CT scan of the abdomen in January 2002 showed a small cyst in the upper portion of the left kidney and two cysts in the right kidney.  

The Veteran had a VA urology consult in July 2002 for evaluation of cysts and stones.  The clinical impression was no current problem with stones; cysts could not be assessed without CT.

A VA PCC note in November 2002 states renal cysts were shown on CT, as well as a small right renal calculus that was asymptomatic.  Thereafter, he had a VA urology consult in December 2002 during which he was assured that renal cysts are common and harmless in most persons, and that his current complaints of back pain were not non-urologic and not related to his renal cysts. 

The Veteran called the VA PCC in February 2005 to report having passed a stone the previous day.  He had experienced right-side back pain and urethral pre-urinary burning over the last 2-3 days, but these symptoms resolved after passing the stone.

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders.  The clinician noted history of bilateral renal cysts by CT in November 2002, but currently asymptomatic with normal creatinine.  The clinician also noted history of kidney stone, most recently in February 2005, but noted there were no recurrent symptoms since then.  Current laboratory values showed no nephropathy present.

The Veteran developed a kidney stone in May 2010, as identified by the VA ER.

Review of the file shows the Veteran did not have kidney stones in service, as documented in his report in August 1999, several years after service, in which he specifically denied a history of kidney stones (the Veteran asserted elsewhere that he had a stone in 1992, but he was not on active service during that year so any stone at that time is irrelevant).  The evidence also does not show, and the Veteran has not asserted, that he had renal cysts during service.

The Veteran is first documented to have had a kidney stone in September 1999, and is first documented to have had a renal cyst in January 2002; both of these manifestations are years after active service.  He has had intermittent recurrences since then, but there is no medical evidence whatsoever in the file that shows a relationship between these disorders and service.

The Veteran has asserted his personal opinion that the claimed renal cysts and stones are related to service, but the etiology of renal cysts and stones is not within his competence as a layperson.  Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428.  As there is no supporting medical opinion, the Board cannot find the Veteran's claimed renal disorder to be related to service.

As noted above, the Veteran failed without good cause to report for a VA examination in May 2011 that may have produced a medical opinion regarding whether or not the claimed renal disorder is related to service; accordingly, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(a).  As the evidence of record does not include competent medical opinion showing a relationship of renal disorder to service, the Board finds the criteria for service connection are not met and the claim must be denied. 

Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for a chronic respiratory disorder

The Veteran contends he developed a chronic respiratory disorder consequent to exposure to asbestos.  As discussed above, the Board has found the evidence does not show the Veteran to have been exposed to asbestos during service.  The claim will be adjudicated accordingly.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any respiratory complaints.  Respiratory examination was normal.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding the respiratory system.  Chest X-ray and pulmonary function test (PFT) in March 1996 were normal.

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  Subsequent Army Reserve treatment records include an examination in August 1999 in which the lungs and chest were evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of respiratory symptoms such as shortness of breath, asthma, pain or pressure in chest, or chronic cough.

VA chest X-ray in February 2002 showed an impression of chronic obstructive pulmonary disease (COPD) with minimal pleural thickening in the right apex.  The Veteran was noted to have a 10-year history of smoking.

A VA PCC note in November 2002 indicated questionable sarcoma of the lung, as well as COPD.  The Veteran reported that when he was heavy he developed shortness of breath during Army Reserve physical training exercises, but he had no symptoms since then.

The Veteran had a VA pulmonary function test (PFT) in January 2003 that was essentially normal.

The Veteran presented to the VA PCC in February 2004 complaining of pleuritic chest pain that had been unchanged for years; the Veteran was certain the pain was related to asbestos exposure.  Examination showed the lungs to be clear bilaterally, and chest X-ray was normal except for COPD.

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders, during which the clinician noted the Veteran's history of reported asbestos exposure and possible sarcoma/mesothelioma.  The clinician noted that chest X-ray in 2002 in 2002 had shown only a scar in the left upper lobe (LUL), and CT scan in 2002 had shown fibrosis.  CT scan in 2003 had shown a small scar in the LUL but no other abnormalities, and CT in 2004 showed no changes since the previous study.

Review of the file shows the Veteran is diagnosed with COPD.  Accordingly, he has shown a disability for which service connection may be considered.

There is nothing in the record to show onset of a chronic respiratory disorder in service, and in fact the Army Reserve examination in August 1999, which is several years after the Veteran's last period of active service, disproves such an onset.  In that examination, the Veteran specifically denied a history of respiratory symptoms and the respiratory system was found to be normal on examination.

COPD was documented in February 2002, five years after his last tour of active duty.  There is no medical opinion of record asserting a relationship between current COPD and service.

The Veteran has asserted his personal opinion that the respiratory disorder is related to service, but the etiology of COPD is not within his competence as a layperson, especially since risk factors such as smoking are documented.  Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428.  As there is no supporting medical opinion, the Board cannot find the Veteran's claimed respiratory disorder to be related to service.

As noted above, the Veteran failed without good cause to report for a VA examination in May 2011 that may have produced a medical opinion regarding whether or not the claimed respiratory disorder is related to service; accordingly, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(a).  As the evidence of record does not include competent medical opinion showing a relationship of a respiratory disorder to service, the Board finds the criteria for service connection are not met and the claim must be denied. 

Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for a right hand disorder

The Veteran contends he developed injuries to the hands consequent to diagnosed "chronic heavy lifting syndrome." He also asserts he has carpal tunnel syndrome from general wear-and-tear from his military duties.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding the hands.  Musculoskeletal examination was normal.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding the hands.

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  Subsequent Army Reserve treatment records include an examination in August 1999 in which the upper extremities were evaluated as "normal." In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of arthritis/rheumatism/bursitis, or deformity of bone or joint.

The Veteran presented to the VA PCC in February 2003 complaining of pain and numbness in the bilateral hands.  Examination was consistent with osteoarthritis in the metacarpophalangeal (MCP) and proximal interphalangeal (PIP) joints, and numbness was consistent with carpal tunnel syndrome.  However, X-ray of the bilateral hands and wrists was normal. 

The Veteran had a VA neurology consult in August 2003 in which he complained of pain and numbness in the bilateral hands.  He reported a 30-year history of palmar fibromatosis, a disorder that his father had also had.  The clinician performed a neurological evaluation of cranial nerves (normal), motor strength (normal), sensory (decreased in the left hand and forearm but otherwise normal), deep tendon reflexes (absent in the left triceps and left finger flex but otherwise normal) and coordination (normal).  The impression was bilateral hand numbness, worse on left and consistent with cervical radiculopathy at C7, C8 and T1 but also possibly having nerve impingement from palmar fibromatosis.

Thereafter, the Veteran had a VA neuro-EMG consult in October 2003 in which the conclusion was abnormal study compatible with mild bilateral carpal tunnel syndrome but not with digital neuropathy or cervical radiculopathy.

The Veteran had a VA orthopedic consult in December 2003 in which he complained of pain in the joints of all his fingers.

VA X-ray of the bilateral hands and wrists in September 2004 was normal. 

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders.  The clinician noted history of Dupuytren's contracture, which had been evaluated by the orthopedic clinic and did not require treatment.  The clinician also noted history of "nodules" on the hands that were slated for rheumatology evaluation but the Veteran cancelled that appointment.  The clinician also noted carpal tunnel syndrome as shown by EMG in April 2003 that had resisted conservative therapy.

The Veteran presented to the VA ambulatory/outpatient clinic in August 2006 to follow-up complaints of pain and swelling in the hand.  The examiner had difficulty eliciting the Veteran's current complaints, but he complained of swelling in the hand and pain at 7/10 level.  The Veteran was observed to have non-inflamed contracture nodules on the right hand, but he was able to close the hand and to use his hands in explaining his problems.  The clinical assessment was chronic hand pain with swelling episodes.

The Veteran presented to the VA ER in September 2006 complaining of pain and swelling in the DIP and PIP joints; the Veteran was concerned he might have gout.  Examination of the extremities showed all joints to have no effusion, erythema, pain or edema, and all joints had good ROM.  The impression was possible osteoarthritis, and significant social stressors. 

Thereafter, the Veteran had a VA rheumatology consult in September 2006 to follow-up his report of recent swelling of the hands.  The clinician stated that the Veteran's symptoms (intermittent hand/finger swelling since June) may represent inflammatory spondyloarthropathy, given his concurrent back stiffness.  The clinician ordered X-ray of the sacroiliac (SI) joint, but the study showed a normal SI joint with no signs of erosion or sclerosis.   

SSA records include an examination report by Dr. Jack Drummond stating the Veteran had been examined on November 1, 2006, and found to  have 5/5 grip strength in each hand.  X-ray of the right hand was unremarkable; X-ray of the left hand showed bone cysts involving the left scaphoid bone.

The Veteran presented to the VA PCC in October 2007 for evaluation of multiple joint pains including the wrists and fingers; the Veteran attributed his problem to "gout."  The clinician noted that past workup for uric acid and polyarthritis had been negative and specifically noted that the joints of the wrists and hands looked "fine" on examination.

The Veteran presented to the VA PCC in October 2009 complaining of joint pain in the hands, feet, knees and ankles due to "gout."  The Veteran had previously been worked-up for gout on several occasions, all of which were negative for increased uric acid, but the rheumatologist had acknowledged that gout may flare at lower levels of uric acid.  The current assessment was multiple medical problems, all overshadowed by perseveration on pain medications.

The Veteran is competent to report having been treated for "heavy lifting syndrome" during service.  Washington, 19 Vet. App. 362.  However, there is no evidence of a chronic right hand disorder that was incurred in service.  In that regard, the Army Reserve examination in August 1999, several years after the Veteran's last period of active service, shows the upper extremities to have been normal on examination.  

The post-service treatment record shows an impression of arthritis in the DIP and PIP joints.  There is no indication of arthritis in service, and in August 1999 the Veteran specifically denied a history of arthritis.  The Board accordingly finds that presumptive service connection under 38 C.F.R. § 3.309(a) for chronic arthritis cannot be considered.

The file contains a number of different clinical impressions regarding post-service pathologies in the hand, including DJD, gouty arthritis, Dupuytren's contracture and carpal tunnel syndrome.  However, there is no medical evidence suggesting a relationship between any diagnosed disorder of the hand and active service.  

The Veteran has asserted his personal opinion that his right hand disorder is related to service.  Given the number of possible pathologies that have been considered over the years, the diagnosis and etiology of his right hand disorder is not within his competence as a layperson.  Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428.  As there is no supporting medical opinion, the Board cannot find the Veteran's claimed right hand disorder to be related to service.

The Veteran was not provided with a VA examination to determine the etiology of his claimed hand disability.  However, as there is no competent evidence showing that any current hand disability may be linked to active service and no reported continuity of symptomatology, an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As the evidence of record does not include competent medical opinion showing a relationship of a right hand disorder to service, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Service connection for right and/or left knee disorders

The Veteran contends he injured his right knee during basic airborne training during his third jump, and that he was treated for right knee injury in Frankfurt, Germany in 1988 and at Fort Lee, Virginia in 1990.  As noted above, STRs from that period are not available.  He also contends he developed recurring injuries to the knees consequent to general wear-and-tear from his military duties.

The Veteran had a VA medical examination in December 1993 that is silent in regard to any complaints regarding the knees.  Musculoskeletal examination was normal.

The Veteran subsequently has a period of ACTDUTRA from February 1996 to February 1997.  STRs associated with that period show no indication of complaints regarding the knees.

The Veteran's last period of active service (ACDUTRA) ended in February 1997.  Subsequent Army Reserve treatment records include an examination in August 1999 in which the lower extremities were evaluated as "normal."  In the corresponding self-reported Report of Medical History the Veteran specifically denied a history of "trick" or locked knee, arthritis/rheumatism/bursitis, or deformity of bone or joint.

The Veteran had a VA pain clinic consult in August 2002 for evaluation of reported chronic knee pain.  No specific diagnosis of the knees was made; the Veteran was referred for medication to treat generalized joint pains (polyarthralgia).

The Veteran presented to the VA PCC in October 2002 requesting referral for chronic right knee pain.  Examination showed questionable muscle atrophy at the knees but was otherwise unremarkable.  X-ray of the right knee showed a pattern of bipartite patella simulating a non-united linear fracture.

The Veteran had a VA orthopedic consult in December 2003 in clinical examination was grossly normal, although history of painful bipartite right patella was noted.  

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders, during which the clinician noted history of bipartite patella and loss of cartilage.  The Veteran complained of chronic knee pain, not relieved by non-steroidal pain medication.

The Veteran presented to the VA orthopedic clinic in January 2006 complaining of increased pain in the right knee.  X-ray showed a bipartite patella with hypertrophic changes; joint spaces were well-maintained.  The clinician stated that some of the Veteran's symptoms appeared to be radicular rather than joint-related.

The Veteran presented to the VA PCC in October 2007 for evaluation of multiple joint pains including the knees; the Veteran attributed his problem to "gout."  The clinician noted that past workup for uric acid and polyarthritis had been negative.

The Veteran presented to the VA PCC in October 2009 complaining of joint pain in the hands, feet, knees and ankles due to "gout."  The Veteran had previously been worked-up for gout on several occasions, all of which were negative for increased uric acid, but the rheumatologist had acknowledged that gout may flare at lower levels of uric acid.  The current assessment was multiple medical problems, all overshadowed by perseveration on pain medications.

The Veteran is competent to report having been injured in jump school and having been treated for knee problems in Germany.  Washington, 19 Vet. App. 362.  However, there is no evidence of a chronic left or right knee disorder that was incurred in service.  In that regard, the Army Reserve examination in August 1999, several years after the Veteran's last period of active service, shows the lower extremities to have been normal on examination.  Further, at that examination the Veteran specifically denied a history of "trick" or locked knee.

In regard to diagnosis, the Veteran was diagnosed in October 2002 with bipartite patella, but there is no medical evidence whatsoever showing a relationship between this diagnosis and any accident or injury in service.  There is no diagnosed left knee disorder other than generalized pain; pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).

The Veteran has asserted his personal opinion that claimed left and right knee disorders are related to service.  Given that there have been several different pathologies that have been considered since discharge from service, the etiology of claimed left and right knee disorders is not within his competence as a layperson.  Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428.  As there is no supporting medical opinion, the Board cannot find the Veteran's claimed knee disorders to be related to service.

The Veteran was not provided with a VA examination to determine the etiology of his claimed knee disabilities.  However, as there is no competent evidence showing that any current knee disabilities may be linked to active service and no reported continuity of symptomatology, an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As the evidence of record does not include competent medical opinion showing a relationship of a right or left knee disorder to service, the Board finds the criteria for service connection are not met and the claim must be denied.  Because the evidence on this preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.
 
Evaluation of Service-Connected Disabilities

Legal Principles

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

During the pendency of this claim, the criteria for evaluating disabilities of the spine were revised.  VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003).  The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied.  VAOPGCPREC 3-2000 (Apr. 10, 2000).  

In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria.  The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, VA must apply the new provisions from their effective date.  Thereafter, the rating criteria most favorable to the beneficiary will apply.

Under the criteria in effect prior to September 23, 2002, a rating of 10 percent is assigned for intervertebral disc syndrome (IVDS) that is mild.  A rating of 20 percent is assigned for IVDS that is moderate, with recurring attacks.  A rating of 40 percent is assigned for that is severe with recurrent attacks and intermittent relief.  A rating of 60 percent is assigned for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief.  38 C.F.R. § 4.71a, DC 5293 (2002).

Under the interim revised criteria of DC 5293, effective September 23, 2002, IVDS is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation.  A rating of 10 percent is assigned for incapacitating episodes having a total duration of one week but less than two weeks during the past 12 months.  A rating of 20 percent is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A rating of 40 percent is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A rating of 60 percent is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5293 (2003).

For the purposes of evaluations under DC 5293, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes.  38 C.F.R. § 4.71a, DC 5293, Note 1 (2003).

Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine is rated under the criteria of DC 5290, and limitation of motion of the lumbar spine is rated under the criteria of DC 5292.  Under these criteria, a rating of 10 percent is assigned for slight limitation of the cervical or lumbar spine, and a rating of 20 percent is assigned for moderate limitation of motion of the cervical or lumbar spine.  A rating of 30 percent is assigned for severe limitation of motion of the cervical spine, and a rating of 40 percent is assigned for severe limitation of motion of the lumbar spine.  38 C.F.R. § 4.71a, DC 5290, 5292 (2003).

Under the criteria effective September 26, 2003, lumbosacral or cervical strain and degenerative arthritis of the spine are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below).  38 C.F.R. § 4.71a, DCs 5237 and 5242 (2013).  IVDS is evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes (outlined above), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, DC 5243 (2013).

Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply.  

A rating of 10 percent is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion (ROM) of the thoracolumbar spine not greater than 130 degrees; or, combined ROM of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.

A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A rating of 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. 

There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate DC.  Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees.  The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation.  The normal combined ROM of the thoracolumbar spine is to 240 degrees.  Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM stated in the regulation.  Fourth, each ROM should be rounded to the nearest 5 degrees.

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).

Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.  Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 


Evidence and Analysis

Schedular evaluation of cervical spine disability 

The Veteran's disability is initially rated as 10 percent disabling prior to November 7, 2006, and 20 percent after that date.

A VA pain clinic note in August 2002 stated that ROM of the neck was limited in all directions, although ROM measurements were not provided.

The Veteran presented to the VA orthopedic clinic in February 2003 complaining of increased low back pain; neck pain was not described.  Physical examination showed 5/5 strength in the bilateral upper extremities and normal sensation throughout the upper extremities.  There was full ROM in the cervical spine without reproduction of pain symptoms.  X-ray was noted.  The clinical assessment was degenerative disc disease (DDD) of the cervical spine without any evidence of myelopathy or nerve impingement.

The Veteran had a VA neurology consult in August 2003 in which he complained of pain and numbness in the bilateral hands.  The clinical impression was bilateral hand numbness, worse on left and consistent with cervical radiculopathy at C7, C8 and T1 but also possibly having nerve impingement from other causes.  Thereafter, the Veteran had a VA neuro-EMG consult in October 2003 in which the conclusion was abnormal study compatible with mild bilateral carpal tunnel syndrome but no electrodiagnostic evidence of cervical radiculopathy.

The Veteran had a VA-contracted medical evaluation in August 2004 in which there was no evidence of radiating pain on movement and no evidence of muscle spasm, although the lower cervical spine was tender to palpation.  ROM showed mild 10 degree limitation of rotation to each side, but flexion was normal at 45 degrees and combined ROM was to 320 degrees, with pain at the extremes of motion.  Pain was the limiting factor for additional limitation of function; there was no additional limitation due to fatigue, weakness, lack of endurance or incoordination, and the spine was not ankylosed.  Neurological examination of the peripheral nerves and the upper extremities was essentially normal.  X-ray of the cervical spine showed degenerative arthritis, joint narrowing and joint irregularity.  The examiner's diagnosis was DDD of the cervical spine, based on subjective complaints as well as physical findings and X-ray.

The Veteran presented to the VA PCC in December 2005 complaining of continued neck pain and right-side numbness.  The clinician noted that MRI had shown DJD with osteophytes at C5-6 and C6-7 and stenosis at C4-5, C5-6 and C6-7.  The Veteran had been referred to the neurosurgery clinic but had no-showed, and he currently stated he did not want surgical intervention.

SSA records include an examination report by Dr. Jack Drummond stating the Veteran had been examined on November 1, 2006, and had been found to have positive Tinel on the left but not on the right.  Grip strength was 5/5.  ROM of the cervical spine was not recorded.

The Veteran had a VA-contracted medical examination on November 7, 2006, in which he complained of stiffness in the arms secondary to neck pain; he also reported pain radiating down the right arm that was associated with flexing the neck.  He reported inability to raise his arms above his head and complained of numbness and tingling in the right hand.  Examination of the spine showed normal curvature and symmetry.  ROM was flexion to 20 degrees, with pain occurring at that point; all other motions were within normal limits and combined ROM was 315 degrees.  Repetitive motion caused additional pain but no increased loss of motion and no additional limitation due to fatigue, weakness, lack of endurance or incoordination.  There was no evidence of muscle spasm, palpable tenderness or ankylosis.   The examiner noted that the Veteran's subjective complaints of tingling and numbness in the right upper extremity were consistent with C5, C6 and T1, but neurological examination of the upper extremities showed normal reflexes, motor and sensory function; peripheral nerve examination was also within normal limits.

The examiner in November 2006 stated a new diagnosis of DDD of the cervical spine with IVDS related to nerve roots C5, C6, C8 and T1 on the right side, secondary to numbness and tingling sensation of the right arm and forearm.  The specific nerves involved were the median nerve (C6 and C7) and the ulnar nerve (C7, C8 and T1).

The Veteran also had a VA neurosurgical consult in November 2006 for evaluation of various joint pains.  He complained of current burning neck pain to the posterior shoulders, arms, forearms, hands and fingers.  Neurological examination of the upper extremities showed motor strength to be symmetrical and 4/5 or better in all muscles.  Upper extremity sensation was intact to pinprick throughout, but Tinel's was positive in the wrists bilaterally.  The neurosurgeon stated that surgery would not appear to offer any benefit and accordingly recommended continued conservative treatment.

Addressing the Veteran's cervical spine disability under the rating criteria in effect prior to September 2003, the Board finds his symptoms more closely approximated the criteria for the currently-assigned 10 percent rating.  Applying the criteria of DC 5290, the Veteran had no more than "slight" limitation of motion, as demonstrated by examination in September 2003 in which he had full ROM.  The currently-assigned 10 percent rating satisfies the minimum rating requirement for arthritis with painful motion, per VAOPGCPREC 09-98 (August 14, 1998).  See also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); Burton, 25 Vet. App. 1.

During the period from September 2003 to November 2006, the Veteran's disability picture continued to more closely approximate the criteria for the currently-assigned 10 percent rating under the old and new rating criteria.  His cervical flexion was greater than 40 degrees, which is not compensable under the General Rating Formula, but his combined ROM of 320 degrees is squarely within the criteria for a 10 percent rating.  The measured ROM shows only "slight" limitation of motion under the criteria of DC 5290.  Because the measured ROM was attained prior to onset of pain, and because there was no additional limitation of function by factors other than pain, additional compensation under DeLuca is not warranted.  

Turning to the period from November 7, 2006, the Board finds the Veteran's cervical spine disability more closely approximated the criteria for the currently-assigned 20 percent rating.  His measured flexion was at worst 20 degrees, which is squarely within the 20 percent range under the General Rating Formula.  His combined ROM of 315 degrees, however, is within the 10 percent range, and demonstrates that the Veteran's limitation of motion would be not more than "moderate" under the criteria of DC 5290.  Because the measured ROM was attained prior to onset of pain, and because there was no additional limitation of function by factors other than pain, additional compensation under DeLuca is not warranted.

In addition to the medical evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners.  However, the lay evidence does not show a disability picture more closely approximating the criteria for a higher schedular rating.  The Veteran's complaints of severe neck pain and associated limitation of function have been accepted by various medical providers and examiners, but his the subjective symptoms and objective findings do not show a degree of limitation of function, even during flare-up, that approximates the disability level warranting a higher schedular rating.  The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his cervical spine disability.

Based on the evidence above, the Board finds the Veteran's cervical spine disability was squarely within the schedular criteria for a rating of 10 degrees prior to November 7, 2006, and has been squarely within the schedular criteria for a rating of 20 degrees from that date.  Further, because the criteria for higher rating were not shown during any distinct period on appeal, "staged" rating is not warranted.  Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505.  Additionally, the Veteran does not have neurological symptoms that would warrant consideration for separate rating.

Schedular evaluation of lumbar spine disability

The Veteran's lumbar spine disability is rated as 10 percent disabling.

A VA pain clinic note in August 2002 stated that ROM of the trunk was flexion to 90 degrees and extension to 15 degrees.  Current clinical impression was DJD with minimal marginal osteophyte formation at L3 and L4.

A VA PCC note in October 2002 shows no neurological impairment associated with the lumbar spine.  Gait was normal, motor strength and sensory were normal, deep tendon reflexes (DTRs) were equal and normal and there was no focal neurological deficit.  X-ray of the lumbosacral spine showed early spondylosis of the mid-dorsal spine with tiny marginal osteophytes.

The Veteran presented to the VA orthopedic clinic in February 2003 complaining of increased low back pain.  He described pain almost every morning, which improved during the day.  He endorsed occasional "attacks" once every few weeks that confined him to his bed. He denied weakness, tingling or numbness in the lower extremities except during these "attacks."  He denied bowel or bladder incontinence.  Physical examination showed 5/5 strength in the bilateral lower extremities and normal sensation throughout the lower extremities.  There was full ROM in the lumbosacral spine without reproduction of pain symptoms.  X-ray was noted.  The clinical assessment was DDD of the lumbar spine without any evidence of myelopathy or nerve impingement.
 
The Veteran had an assessment by the VA pain management clinic in March 2003 during which he complained of constant achy pain in the mid-back that radiated into both legs, left worse than right, and wrapped around the abdomen.  He also complained of left leg numbness.  He denied bowel or bladder incontinence.  He rated his pain as 3/10 in severity.  Imaging showed DDD at L3-4 and L5-S1.  On examination the Veteran had normal gait and could heel-walk and toe-walk.  Lower extremity strength was 5/5 bilaterally and sensation was intact.  There was no pain with straight leg raising (SLR) lying or sitting.  ROM was not recorded.  The assessment was chronic low back pain with DDD.
 
The Veteran had a VA-contracted medical evaluation in August 2004 in which he complained of pain in the lower and mid-back occurring 8 times per day and lasting 6 hours (which, the Board notes, would make each day 48 hours long).  The pain was described as 10/10 in severity and moving up and down the spine and to the hips and sides.  Pain also occurred during bowel movements.  The pain was described as crushing, squeezing, cramping, burning, aching, oppressing and sticking in nature.  Pain could be elicited by food, stress, or activity, or could come by itself.  Pain was alleviated by rest and by a host of pain medications.  He described two incidents during the past year in which he had required bed rest prescribed by a physician; these incapacitating episodes lasted a total of two days.  He also has self-imposed incapacitating episodes as often as four times per year and lasting eight days.  The functional impairment associated with the disability was that the Veteran could not sit, stand, lift, bend, reach, twist, turn, sleep or stoop.  The Veteran described four instances in which he had lost time from work per year.

During the August 2004 examination cited above the Veteran was noted to have normal posture and gait, without muscle wasting or weakness.  ROM was normal to all movements; specifically, flexion was to 90 degrees and combined ROM was to 240 degrees, with pain being the primary limiting factor.  There was no additional limitation due to fatigue, weakness, lack of endurance or incoordination, and the spine was not ankylosed.  There was no sign of IVDS.  Neurological examination of the peripheral nerves and the lower extremities was essentially normal.  X-ray of the lumbar spine showed degenerative arthritis, joint narrowing and joint irregularity.  The examiner's diagnosis was DDD, based on subjective complaints as well as physical findings and X-ray.

The Veteran presented to the VA PCC in December 2005 for scheduled follow-up of various disorders.  He complained of chronic back pain, unrelieved by previous medications and therapies; he was no taking a prescription opioid pain medication.  The clinician noted history of lumbar spondylosis and current treatment at the VA orthopedic and pain clinics.  

VA MRI of the lumbar spine August 2006 showed moderate lumbar spondylosis with bilateral neuroforamina stenosis at L4-5 and L5-S1 levels.

The Veteran had a Physical Residual Functional Capacity Assessment in September 2006, performed in support of his claim for SSA disability benefits.  The assessment was based on claimed disabilities of low back pain and HCV.  The examiner stated the Veteran had the capacity to occasionally lift 50 pounds, to frequently lift 25 pounds, and to stand, sit or walk for 6 hours of a typical 8-hour work day; his ability to push/pull was not limited.  The Veteran had no postural limitations (he was able to climb, balance, stoop, kneel, crouch or crawl).  

SSA records also include an examination report by Dr. Jack Drummond stating the Veteran had been examined on November 1, 2006, and had been found to have forward flexion of 60 degrees in the thoracolumbar spine; other ROM were not noted.  The Veteran was able to tandem, squat and rise without problems.  X-ray revealed DDD at the L2-L3 level.

The Veteran had a VA-contracted medical examination on November 7, 2006, in which he complained of pain and stiffness in the lower back, occurring constantly and radiating into the legs and feet.  The Veteran stated the pain was of a crushing, aching, sticking, squeezing, oppressive, cramping, burning, sharp, stinging, tearing sensation and was 10/10 in severity.  Pain was elicited by physical activity, rest and stress, and also came on spontaneously.  Medication and chiropractic intervention caused some improvement but not total relief.  Subjective functional impairment was inability to stand, walk, bend or lift.  He reported having been incapacitated nine times during the past year for 7-10 days at a time, resulting in a total of 50-60 days of incapacitation.

Examination showed the Veteran to have normal posture and gait, and he was able to ambulate around the room without assistance.  The spine had normal curvature and symmetry.  ROM was normal in all movements, including flexion to 90 degrees and combined ROM of 240 degrees, with pain occurring at the extremes of flexion and extension.  Repetitive motion caused additional pain but no increased loss of motion and no additional limitation due to fatigue, weakness, lack of endurance or incoordination.  There was no evidence of muscle spasm, palpable tenderness or ankylosis.  Neurological examination of the lower extremities showed normal reflexes, motor and sensory function; peripheral nerve examination was also within normal limits.  The Veteran denied bowel, bladder or erectile dysfunction.  The examiner continued the current VA diagnosis of DDD of the lumbar spine.  

The Veteran also had a VA neurosurgical consult in November 2006 for evaluation of various joint pains.  He complained of current shooting pain radiating to the lower back and behind the knees to the balls of the feet, with associated numbness and tingling.  Neurological examination of the lower extremities showed motor, sensation, and DTRs to be intact.  Toe-walk and heel-walk were essentially normal; SLR was questionably positive at 90 degrees bilaterally.  The neurosurgeon stated that surgery would not appear to offer any benefit and accordingly recommended continued conservative treatment.

The Board finds the disability picture associated with the Veteran's lumbar spine disability more closely approximates the criteria for the currently-assigned 10 percent rating.  The Veteran's limitation of flexion has been at worst 60 degrees during the period, as demonstrated in the examination by Dr. Drummond on November 1, 2006; otherwise, his flexion and his combined ROM have been normal per VA examinations.  Flexion of 60 degrees is the exact borderline between the 10 percent rating and the 20 percent rating under the General Rating Formula.  As the Veteran had full flexion on all examinations prior to Dr. Drummond (August 2002, February 2003 and August 2004), and again had full extension during VA examination six days after Dr. Drummond (November 7, 2006), the Board finds the Veteran's ROM more accurately falls within the schedular 10 percent range.  The 10 percent rating satisfies the minimum rating requirement of Lichtenfels and Burton.

During examination in August 2004 the Veteran described incapacitating episodes lasting a total of two days; he named the physicians who had reportedly prescribed bed rest.  Both are VA physicians, and their prescriptions of bed rest are not documented in the VA clinical record.  In any event, two days of incapacitating episodes would not result in a rating higher than 10 percent, so alternative rating under those criteria would be of no benefit to the Veteran.

During examination in November 2006 the Veteran described having been incapacitated for a total of 50-60 days during the previous year, but he did not identify any providers as having prescribed bed rest, and the VA treatment record is totally silent in regard to such prescription.  The Board accordingly finds the periods of incapacitation reported by the Veteran on that occasion are not qualifying incapacitating episodes of IVDS warranting alternative rating.

In addition to the medical evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners.  The Board notes at this point that the Veteran appears to have been considerable exaggerating his functional limitations during examination.  For example, during VA examination in August 2004 the Veteran reported that he was unable to sit, stand, lift, bend, reach, twist, turn, sleep or stoop; during subsequent SSA Physical Residual Functional Capacity Assessment in September 2006 he was determined by the examiner to be able to climb, balance, stoop, kneel, crouch and crawl.  The Veteran has complained extensively on examination of pain, which seems to be his primary limiting factor, but he has been able despite the reported pain to achieve full, or nearly full, ROM on examination.  Further, despite the Veteran's complaint of severe pain, the examinations of record consistently show he has had normal gait and posture; there is no clinical evidence of actual observed functional impairment.

In any event, the lay evidence offered by the Veteran does not show a disability picture more closely approximating the criteria for a higher schedular rating.  The Veteran's complaints of low back pain and associated limitation of function have been accepted by various medical providers and examiners, but his subjective symptoms and objective findings do not show a degree of limitation of function, even during flare-up that approximates the disability level warranting a higher schedular rating.  The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his lumbar spine disability.

Based on the evidence above, the Board finds the Veteran's lumbar spine disability has squarely met the schedular criteria for a rating of 10 degrees throughout the period under review.  Further, because the criteria for higher rating were not shown during any distinct period on appeal, "staged" rating is not warranted.  Fenderson, 12 Vet. App. 119.  Additionally, the Veteran does not have neurological symptoms that would warrant consideration for separate rating.

Other rating considerations

The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  

The Veteran's cervical and lumbar spine disabilities are manifested by painful, limited motion and functional impairment.  The diagnostic codes in the rating schedule corresponding to disabilities of the spine provide disability ratings on the basis of limitation of motion and incapacitating episodes.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37.  In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. 

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by pain, limited motion, and functional impairment.  In short, there is nothing exceptional or unusual about the Veteran's disabilities because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet.App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present.  In particular, the Veteran does not contend, and the evidence of record does not suggest, that his disabilities have caused him to miss excessive periods of work or has resulted in any hospitalizations.  The Board finds, therefore, that the Veteran's service-connected cervical and lumbar spine disabilities do not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b)(1).  Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.


ORDER

Service connection for hepatitis C infection is granted.

Service connection for a chronic abdominal disorder is denied.

Service connection for residuals of a head injury/concussion is denied.

Service connection for residuals of an eye injury/abrasion is denied.

Service connection for residuals of a spider bite is denied.

Service connection for a chronic bilateral ankle disorder is denied.

Service connection for a chronic bilateral hip disorder is denied.

Service connection for a chronic bilateral shoulder disorder is denied.

Service connection for a chronic bilateral leg disorder is denied.

Service connection for residuals of a heat injury is denied.

Service connection for hypertension is denied.

Service connection for renal cysts in both kidneys is denied.

Service connection for a chronic respiratory disorder is denied.

Service connection for a chronic eye disorder is denied.

Service connection for a right hand disorder is denied.

Service connection for a right knee disorder is denied.

Service connection for a left knee disorder is denied.

An initial evaluation higher than 10 percent for the cervical spine disability prior to November 7, 2006, and a rating higher than 20 percent from that date, is denied.

An initial evaluation higher than 10 percent for the lumbar spine disability is denied. 



____________________________________________
D. JOHNSON
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs