Citation Nr: 1608304	
Decision Date: 03/02/16    Archive Date: 03/09/16

DOCKET NO.  05-41 290	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to a rating greater than 30 percent for diverticulosis of the colon.

2.  Entitlement to a rating greater than 10 percent for hiatal hernia and gastroesophageal reflux disease (GERD).  

3.  Entitlement to a compensable rating for rectal polyps.

4.  Entitlement to a rating greater than 10 percent for gouty arthritis.

5.  Entitlement to service connection for bilateral hearing loss.

6.  Entitlement to service connection for tinnitus.

7.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).  

8.  Entitlement to service connection for a heart disorder.  

9.  Entitlement to service connection for a respiratory disorder.

10.  Entitlement to service connection for dental deterioration for dental treatment purposes.

11.  Entitlement to service connection for interstitial cystitis with secondary thrombosis/varicocele, bilateral testes.  

12.  Entitlement to service connection for liver and kidney disorders.  

13.  Entitlement to service connection for a ventral hernia.

14.  Entitlement to service connection for peripheral neuropathy of the right and left upper extremities.

15.  Entitlement to service connection for a back condition, including degenerative joint disease, spina bifida and tumors.  

16.  Whether new and material evidence was received to reopen a claim of entitlement to service connection for chloracne.

17.  Entitlement to service connection for chloracne.

18.  Whether new and material evidence was received to reopen a claim of entitlement to service connection for right and left knee disorders.  

19.  Entitlement to service connection for right and left knee disorders.  

20.  Entitlement to service connection for nonservice-connected pension. 

21.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from October 1961 to June 1965 and from November 1966 to February 1973.  

This matter comes before the Board of Veteran's Appeals (Board) on appeal from June 2005, November 2007, and July 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

In March 2007 and November 2009, the Veteran testified at hearings before a Decision Review Officer (DRO).  

In August 2012, the RO continued a 10 percent rating for diabetes; denied service connection for diabetic retinopathy and enlarged prostate; and determined that new and material evidence had not been received to reopen a claim of service connection for non-Hodgkin's lymphoma due to Agent Orange exposure.  The Veteran did not appeal the decision and these issues are not for consideration.  

In September 2015, a Central Office hearing was held before the undersigned Veterans Law Judge (VLJ).  At that time, the Veteran submitted additional evidence with a waiver of RO jurisdiction.  The Board notes that the Veteran was previously represented by a private attorney who revoked representation in December 2014.  The Veteran elected to proceed unrepresented at the hearing and to date, has not appointed a new representative.

The issues certified for appeal included "whether clear and unmistakable error exists in any prior rating decisions."  It is not clear which rating decisions the RO was considering and at the Board hearing, the Veteran clarified that he was claiming clear and unmistakable error (CUE) in an April 1976 Board decision.  The Board notes that CUE must be pled with specificity and in the absence of such, declines to adjudicate CUE in any prior rating decisions.  See e.g. Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom. Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ("to raise CUE there must be some degree of specificity as to what the alleged error is and ... persuasive reasons must be given as to why the result would have been manifestly different").  

Under the circumstances of this case and given the Veteran's contentions, the Board has separately docketed a motion for revision of its April 1976 decision on the basis of CUE and this will be adjudicated in a separate decision.

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed.  

In an April 2012 statement, the Veteran indicates he is filing 1151 claims against the Phoenix RO and the Phoenix VA hospital.  The Veteran does not specify the basis for the claim and this matter is referred to the RO for clarification or other appropriate action.  

In May 2014, the Veteran's then attorney argued the Veteran was entitled to a 30 percent rating for laryngitis secondary to hiatal hernia.  The Veteran is not service-connected for laryngitis and this matter is also referred to the RO for appropriate action.  

The issues of service connection for an acquired psychiatric disorder, to include PTSD; service connection for a respiratory disorder; service connection for dental deterioration for dental treatment purposes; service connection for interstitial cystitis with secondary thrombosis, varicocele, bilateral testes; service connection for peripheral neuropathy of the upper extremities; service connection for chloracne; service connection for right and left knee disorders; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The service-connected diverticulosis of the colon and hiatal hernia and GERD are coexisting abdominal conditions; notwithstanding, the RO assigned separate ratings for diverticulosis (30 percent) and hiatal hernia, GERD (10 percent), resulting in a combined rating of 40 percent.  

2.  The disability picture associated with the Veteran's coexisting abdominal conditions is not manifested by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  

3.  The Veteran is not shown to have any residuals following removal of colon and rectal polyps.  

4.  The Veteran failed to report for a VA examination scheduled in October 2014 and evidence obtained during the appeal period is not sufficient to evaluate service-connected gouty arthritis.  

5.  Resolving reasonable doubt in the Veteran's favor, current bilateral hearing loss is related to in-service noise exposure.

6.  Medical evidence indicates that the Veteran's current tinnitus is at least as likely as not a symptom associated with hearing loss.  

7.  The Veteran is not shown to have a current heart disorder.  

8.  The preponderance of the evidence is against finding the Veteran has current liver and kidney disorders that are related to active service or service-connected diabetes.  

9.  The preponderance of the evidence is against finding that any current ventral hernia is related to active service or service-connected GERD.  

10.  Lumbar spine arthritis was not manifested to a compensable degree within one year following discharge from service; and the preponderance of the evidence is against finding that any current back disorder is related to active service or events therein.  

11.  In December 2001, the RO denied service connection for chloracne.  The Veteran did not timely appeal this decision.  

12.  Evidence associated with the record since the final December 2001 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating a claim of entitlement to service connection for chloracne.

13.  In December 2001, the RO denied service connection for bilateral knee problems.  The Veteran did not timely appeal this decision.

14.  Evidence associated with the record since the final December 2001 rating decision relates to an unestablished fact and raises a reasonably possibility of substantiating a claim of entitlement to service connection for right and left knee disorders.  

15.  The Veteran does not meet the income requirements for nonservice-connected pension benefits.  





CONCLUSIONS OF LAW

1.  The criteria for a rating greater than 30 percent for diverticulosis of the colon are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.113, 4.114, Diagnostic Codes 7319, 7327 (2015).

2.  The criteria for a rating greater than 10 percent for hiatal hernia, GERD are not met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.113, 4.114, Diagnostic Code 7346 (2015). 

3.  The criteria for a compensable rating for rectal polyps are not met.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7344 (2015).  

4.  The criteria for a rating greater than 10 percent for gouty arthritis are not met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.655, 4.71a, Diagnostic Codes 5002, 5017 (2015).  

5.  Bilateral hearing loss was incurred during active service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). 
 
6.  Tinnitus is secondary to hearing loss.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).

7.  A heart disorder was not incurred during service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).  

8.  Liver and kidney disorders were not incurred during service and are not secondary to service-connected diabetes.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.

9.  A ventral hernia was not incurred during service and is not secondary to service-connected GERD.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.

10.  A back condition, including degenerative joint disease, spina bifida and tumors, was not incurred during service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309.  

11.  The December 2001 rating decision, which in pertinent part denied service connection for chloracne and bilateral knee problems, is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015).

12.  New and material evidence has been received to reopen the claims of service connection for chloracne and for right and left knee disorders.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

13.  The criteria for basic eligibility for nonservice-connected pension benefits are not met.  38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. § 3.3 (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As to the issues decided, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met.  By correspondence dated in November 2004, March 2006, June 2007, June 2008, October 2008 and May 2009, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of the information he was responsible for providing and of the evidence that VA would attempt to obtain.  VA also provided notice as to how it assigns disability ratings and effective dates.  

VA has also satisfied its duty to assist.  The claims folder contains service treatment records, VA medical records, Social Security Administration (SSA) records and private medical records.  

The Veteran was afforded numerous examinations during the appeal period.  In October 2014, the RO requested examinations pertinent to the claims for increase, and for service connection for a psychiatric disorder and a respiratory disorder, but the Veteran failed to report.  In December 2014, VA contacted the Veteran regarding whether or not he wanted these examinations rescheduled and he stated "no."  In February 2015, VA again contacted the Veteran.  He reiterated that he would not attend the examinations.  At the videoconference hearing, the Veteran stated that he had his own doctors and had submitted evidence but the VA refused to read it.  

When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655 (2015).  

In this case, the appeal period is extremely lengthy and the Veteran did report to some examinations that were scheduled during that time.  Accordingly, to the extent the evidence is sufficient for rating purposes, the Board will consider the merits of the claims for increase.  

As concerns service connection for a heart condition, liver and kidney disorders, and ventral hernia, the Board declines to request examinations.  As discussed in further detail below, either the Veteran does not have the claimed disorder or the record does not contain competent evidence suggesting a relationship to service or service-connected disability and the requirements for a VA examination are not met.  See 38 C.F.R. § 3.159(c)(4) (2015).

The Veteran provided testimony at the September 2015 hearing and the VLJ's actions supplemented the VCAA and complied with any hearing-related duties.  

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159. 



Analysis

The Veteran's electronic claims folder contains extensive evidence, which the Board has reviewed.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122(2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

Increased ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of a Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2015).  If there is a question as to which evaluation to apply to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2015).

Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  

VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability.  The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use."  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant."  See 38 C.F.R. § 4.40.

	Digestive conditions

In June 2005, the RO continued a 30 percent rating for diverticulosis of the colon and increased the rating for hiatal hernia, GERD to 10 percent.  The Veteran disagreed with the assigned ratings and perfected an appeal of those issues.  

At the Central Office hearing, the Veteran testified that he experiences pain and cannot have a bowel movement when he gets blocked.  He uses mineral oil enemas and takes over-the-counter medications.  He reported that he experiences blockages sometimes twice a month and also has vomiting and diarrhea at the same time.  

On VA examination in December 2004, the Veteran reported chronic reflux.  He elevated the head of his bed but still woke up at night with reflux at least three times a week.  He claimed intolerance to all proton pump inhibitors and did not take medication other than Gaviscon.  He reported symptoms of dysphagia and nausea.  He denied melena, black tarry stools or blood in the stool.  The Veteran had an EGD and a colonoscopy done in July 2004.  No polyps were found and the colon was essentially normal.  EGD showed gastritis.  On physical examination, the abdomen was obese.  He reported vague nonspecific tenderness throughout the entire abdomen.  A modified barium swallow showed dysphagia, but swallowing appeared to be within functional limits.  

On VA examination in February 2005, the Veteran reported continued reflux.  He had not experienced any weight loss or nutritional problems.  The examiner noted there were no documented episodes of diverticulitis in the file, but there was a report of "scattered sigmoid diverticula" at a barium enema in January 1998.  The Veteran had had a wide range of abdominal and bowel symptoms, which ranged from alternating diarrhea and constipation to a period when he was a vegetarian and had as many as fifteen or more stools a day.  He reported that he was currently doing fairly well and he attributed this to his diet.  There was no rectal bleeding.  Objectively, he was well-nourished.  The abdomen was obese.  Initially there was no guarding or tenderness but as the examination proceeded, there was some left upper quadrant tenderness.  As the right upper quadrant was palpated more intensely, a sharp liver edge was palpated and he indicated tenderness in that region as well.  There were no abdominal masses detected.  Addendum indicates that on normal barium swallow (esophagram), no hiatal hernia was seen.  Barium enema described only scattered diverticula, without signs of irritation or diverticulitis.

An April 2005 VA ear, nose and throat examination notes a history of hiatal hernia and associated esophageal reflux which may play a role in his throat symptoms, including voice changes and dysphagia symptoms.  

A May 2005 private medical record notes the Veteran's complaints of very mild dysphagia.  He also reported he was losing weight but that this was due to dieting.  

An October 2005 private consultation report notes the Veteran's complaints of GERD, hiatal hernia, heartburn and acid regurgitation.  Severity was mild to moderate and he had abdominal pain and dysphagia.  He denied changes in bowel habits, weight loss or anemia.  A March 2006 abdominal and pelvis CT showed sigmoid diverticulosis.  

In an October 2007 statement, the Veteran's private physician noted he had diverticulosis, which at that time, was uncomplicated.  He also had a hiatal hernia and GERD for which he treated flare-ups conservatively.  A June 2008 private colonoscopy report included a postoperative diagnosis of diverticulosis coli without diverticulitis.  

A November 2009 statement from the Veteran's private physician, Dr. Y, verifies the Veteran has a history of severe chronic GERD requiring maximal medical therapy.  

The Veteran underwent a VA examination in April 2010.  He continued to have significant problems with his esophageal reflux and a June 2008 esophagoscopy documented esophagitis and mild esophageal erosions in the distal 1/3 of the esophagus.  No strictures were seen.  He continued to have symptomatic, nearly daily esophageal reflux symptoms.  He described frequent hoarseness, cough and occasional wheezing.  He had had a number of episodes of abdominal distress treated with antibiotics and was presumed to be related to diverticulitis.  He reported episodes of cramping pain attributed to diverticula.  On physical examination, the abdomen was moderately obese with slight tenderness.  Impression was persistent GERD with reflux symptoms consisting of water brash, a cough and pharyngitis, hoarseness and possible recurring aspirational changes of his lungs.  The examiner also noted recurring esophagitis, hemorrhoids with recent banding, colonic polyps that were removed, and documented diverticula.  

A January 2011 private record shows the Veteran's GERD was refractory to medical therapy.  He denied any dysphagia, vomiting, weight loss, or severe abdominal pain.  

A February 2011 operative report notes the Veteran had a longstanding history of GERD and endoscopy showed hiatal hernia as well as esophagitis.  He underwent a robotic assisted Nissen fundoplication.  

In March 2011, the Veteran was admitted for gastrointestinal bleeding and blood loss anemia.  He underwent an EGD and post-operative diagnoses were (1) distal duodenal bulb ulcer, clean base, without stigmata of active bleeding; (2) erosive gastritis; and (3) status post Nissen fundoplication.  

In July 2012, the Veteran underwent a pH study.  The distal esophageal pH exposure was negative indicating good response to current therapy and previous Nissen's fundoplication.  

In support of his claim, the Veteran submitted disability benefits questionnaires completed by his private physician in September 2012.  This indicates diagnoses of diverticulosis and colon polyps and shows no evidence of weight loss, malnutrition, or serious complications related to the intestinal conditions.  The private examiner also noted GERD and hiatal hernia with no evidence of weight loss.  

An August 2013 VA record indicates GERD symptoms were much better since the surgery and he used pantoprazole only as needed.  

The Veteran underwent a CT scan of the abdomen in July 2014 for a history of recurrent vomiting, epigastric pain.  The test showed: (1) questionable mild circumferential mucosal thickening at the junction of the first and second portions of the duodenum.  If there was a concern for peptic ulcer disease, endoscopy was recommended.  No other potential sites of GI inflammation were appreciated; and (2) Sigmoid diverticular disease without evidence of acute diverticulitis.  

In August 2015, the Veteran underwent a colonoscopy which showed diverticulosis, which appeared to be of moderate severity.  

The most recent code sheet indicates the Veteran's diverticulosis is rated pursuant to Diagnostic Codes 7326 (enterocolitis) -7319 (irritable colon syndrome).  A review of the claims folder, however, shows the condition was originally rated pursuant to Diagnostic Code 7327 (diverticulitis) and this appears appropriate.  Under this provision, diverticulitis is rated as for irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending upon the predominant disability picture.  38 C.F.R. § 4.114, Diagnostic Code 7327.  The evidence of record does not show peritoneal adhesions or ulcerative colitis and the predominant disability picture is consistent with irritable colon syndrome, which is assigned a 30 percent rating when the disability is severe with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114, Diagnostic Code 7319.  

The Veteran's hiatal hernia, GERD is rated pursuant to Diagnostic Code 7346.  Under this provision, hiatal hernia is rated as follows: symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent); persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); with two or more of the symptoms for the 30 percent evaluation of less severity (10 percent).  38 C.F.R. § 4.114, Diagnostic Code 7346.

There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14.  38 C.F.R. § 4.113.  

Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other.  A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114.  

Based on the foregoing, it is necessary to determine which diagnostic code reflects the Veteran's predominant disability picture (Diagnostic Code 7319 or 7346) and assign a single evaluation.  In this case, however, the RO assigned a 30 percent rating under Diagnostic Code 7319 and a separate 10 percent rating under Diagnostic Code 7346, resulting in a combined 40 percent rating for his digestive conditions.  This appears incorrect in that ratings for certain coexisting abdominal conditions are not to be combined.  Regardless, the Board will not disturb the ratings assigned.

A 30 percent rating is the maximum schedular evaluation available for irritable colon syndrome and thus, an increase is not available under Diagnostic Code 7319.

Considering the way the Veteran's digestive conditions are currently rated, the only available avenue for an increase appears to be a 60 percent rating under Diagnostic Code 7346.  In May 2014 correspondence, the Veteran's then attorney argued that a 60 percent rating was warranted based on other symptom combinations productive of severe impairment of health.  The Board acknowledges that the Veteran apparently suffered some GI bleeding with anemia in 2011.  This appeared to be an isolated episode and the Veteran is not shown to be suffering from material weight loss or continued bleeding with anemia.  Indeed, the questionnaire completed by his private physician in September 2012 specifically stated he did not have malnutrition, serious complications or other general health effects attributable to the intestinal condition.  The Board has reviewed all of the evidence during the appeal period and has considered the Veteran's statements as to the severity of his symptoms.  The Board, however, does not find the overall disability picture to more nearly approximate symptom combinations productive of severe impairment of health and the criteria for a higher rating are not met.  Staged ratings are not warranted.  

	Rectal polyps

In June 2005, the RO continued a noncompensable rating for rectal polyps.  The Veteran disagreed with the rating and perfected this appeal.  

On VA examination in December 2004, the examiner noted that a colonoscopy was done in July 2004 and no polyps were found, although he did have a prior history of colon polyps.  VA examination in February 2005 noted a history of colon polyps, negative colonoscopy July 2004, and no evidence of any recurrent polyps.  

A June 2008 private colonoscopy report showed four rectal polyps that were removed with snare polypectomy technique and one ablated, since it was too small to be removed.

A February 2010 private colonoscopy showed a normal anal canal, but there were internal hemorrhoids in the rectum, which were banded.  

On VA examination in April 2010, the Veteran reported that he recently underwent a colonoscopy and was found to have 2 left-sided rectal polyps which were removed.  He is currently underwent surveillance for rectal polyps.  

A May 2010 private sigmoidoscopy report showed internal hemorrhoids in the anal canal, but the rectum and sigmoid colon were normal.  The hemorrhoids were banded.  

The Veteran most recently underwent a colonoscopy in August 2015.  Indications for the procedure were rectal bleeding and anorectal pain.  Three sessile 3 mm polyps were found in the ascending colon, descending colon and rectum.  Polypectomies were performed using a cold forceps.  The polyps were completely removed and retrieved.  

Benign neoplasms of the digestive system, exclusive of skin growths, are to be evaluated under an appropriate diagnostic code, depending on the predominant disability or the specific residuals after treatment.  38 C.F.R. § 4.114, Diagnostic Code 7344.  

As set forth, the Veteran is shown to have had both colon and rectal polyps removed during the course of this appeal.  There is no indication of any residuals following the polypectomies and thus, no disability to evaluate.  The criteria for a compensable rating are not met.  A staged rating is not warranted.  




	Gouty arthritis

By way of history, the Veteran's gout was originally assigned a 20 percent rating as an active process in July 1973.  In September 1977, the rating was reduced to 10 percent.  This rating indicates that the gouty arthritis was no longer an active process and there was no limitation of motion of any joint.  However, the left big toes and the ankles were slightly enlarged and a 10 percent evaluation was assigned for the group of minor joints affected by arthritis.  

In June 2005, the RO continued a 10 percent rating for gouty arthritis.  The Veteran disagreed with the rating and perfected this appeal.  

On VA examination in January 2005, the Veteran reported that he was diagnosed with gout in 1968 but was not on any anti-gout medicines at the present time.  He reported symptoms in the knees, feet, elbows, hands, and ankles.  Diagnosis was right knee, mild degenerative joint disease; and both elbows, small soft tissue calcification cornoid area.  Two subsequent appointments made for feet, hands and ankles were cancelled by the Veteran.  

In an October 2007 statement, the Veteran's private physician noted a history of gout, but without flare-ups for the last 10 months.  

At the November 2009 DRO hearing, the Veteran reported that his gouty arthritis had started again.  

On VA examination in April 2010, the Veteran reported pain in both feet and that he had modified his diet to control his gout.  He further reported flare-ups 1 to 3 times a month lasting more than 2 but less than 7 days.  On physical examination, there was no evidence of swelling, instability, weakness, or abnormal weight bearing in the feet, but there was evidence of painful motion and tenderness.  There was poor propulsion noted and he walked slowly with a cane.  Diagnosis was gouty arthritis of the feet.  The examiner noted mild to moderate effects on daily activities.

VA records dated in November 2010 note complaints of increasing gout related pain in the left hip, knees, hands and feet.  Recent labs showed uric acid of 6.5 and CRP of 2.6.  He was not currently taking any medication for gout.  The Veteran subsequently stated that he did not want to be seen or evaluated for his gout flare up.  

In August 2012, the Veteran's private physician completed a disability benefits questionnaire for nondegenerative arthritis.  He noted a diagnosis of gout in 1968.  The Veteran did not require continuous use of medication for this condition and he had not lost weight due to same.  The Veteran had pain and limitations in the hand/fingers, knees, and foot/toes but specific findings were not provided.  There were no joint deformities.  A questionable history of kidney stone was noted.  The examiner further stated that the Veteran had exacerbations that were not incapacitating in the left foot.  He also noted incapacitating exacerbations of 5-10 minutes four or more times a year.  The Veteran claimed his hands occasionally locked with a gout attack lasting 2-3 minutes.  Laboratory studies were reportedly accomplished but the results were not provided.  The physician further stated the condition affected his ability to work when it was active.  

At the September 2015 Central Office hearing, the Veteran testified that the gout was affecting his toes.  He further testified that he was seen at a private emergency room in August 2012 for his hands, knees, and hips.  

The RO rated the Veteran's gout pursuant to Diagnostic Code 5017, which indicates gout is to be rated under Diagnostic Code 5002.  Under this provision, rheumatoid arthritis, as an active process is rated as follows: with constitutional manifestations associated with active joint involvement, totally incapacitating (100 percent); less than criteria for 100 percent but with weight loss and anemia productive of severe impairment of health, or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods (60 percent); symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year (40 percent); and one or two exacerbations a year in a well-established diagnosis (20 percent).  38 C.F.R. § 4.71a, Diagnostic Code 5002.  

For chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate diagnostic codes for the specific joints involved.  Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.

Note to this provision states the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis.  Assign the higher evaluation.  Id.

As noted, the Veteran failed to report for a VA examination in October 2014.  The Board acknowledges that the Veteran underwent examinations during the appeal period and his private physician completed a disability benefits questionnaire related to his gout.  Notwithstanding, the Board is not able to rate the disability on the evidence of record because it is unclear whether the service-connected gout is currently an active process and if not, what joints are actually affected by gouty arthritis (as opposed to degenerative) and to what extent.  Under the circumstances of this case, a rating greater than 10 percent for gouty arthritis must be denied.  That is, without a current examination, the Board cannot accurately evaluate the disability.  

Finally, the Board has considered whether the Veteran may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321 (2015).  On review, the applicable diagnostic codes contemplate the Veteran's claimed symptoms related to the service-connected digestive conditions (diverticulosis, hiatal hernia/GERD, and rectal polyps).  Specifically, the diagnostic codes contemplate abdominal distress, constipation, diarrhea, epigastric distress, vomiting and other symptom combinations.  Higher ratings are available for greater levels of disability.  As the rating criteria are considered adequate, referral for consideration of an extraschedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

As discussed above, the Board is unable to appropriately rate the gouty arthritis and extraschedular consideration is not for application as concerns that issue.  

The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the combined effects of a Veteran's service-connected disabilities are also for consideration in determining whether the schedular evaluations are adequate under § 3.321(b)(1).  Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (observing that "§ 3.321(b)(1) performs a gap-filling function [that] accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented"). 

In addition to the ratings addressed herein, the Veteran is also service-connected for diabetes, currently rated as 10 percent disabling.  The Veteran has not challenged the adequacy of that rating and it is not for consideration.  The current appeal issues are not found to encompass the issue of whether the schedular criteria are adequate to compensate for the combined effects of multiple service-connected disabilities.  

Service connection 

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
 
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).

In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including sensorineural hearing loss, cardiovascular disease and arthritis, if manifest to a compensable degree within one year after discharge from service.  38 C.F.R. §§ 3.307, 3.309(a).  

Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition.  38 C.F.R. § 3.310(a).  Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation.  See Allen v. Brown, 7 Vet. App. 439 (1995).  The Board acknowledges that 38 C.F.R. § 3.310(b) (Aggravation of nonservice-connected disabilities) was amended in October 2006.  

Evidence of record shows service in Vietnam during the Vietnam era and the Veteran is presumed to have been exposed to Agent Orange.  38 C.F.R. § 3.307(a)(6)(iii).  Diseases associated with exposure to certain herbicide agents include AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma.  38 C.F.R. § 3.309(e).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015).

	Hearing loss and tinnitus

In July 2009, the RO denied service connection for bilateral hearing loss and tinnitus.  The Veteran disagreed with the decision and perfected this appeal.  

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2015).

38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  When audiometric test results at the Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id. at 160.  

Review of service treatment records is negative for complaints or findings of hearing loss or tinnitus.  In-service audiograms do not establish a hearing loss disability for VA purposes in either ear.  

A May 2005 private medical record notes left-sided hearing loss and tinnitus, most likely noise induced.  A July 2005 record notes complaints of bilateral tinnitus with significant loud noise exposure.  It was noted the Veteran worked on a destroyer and his bunk was just below the gun mount.  An audiogram was obtained and showed a bilateral sensorineural hearing loss.  Impression was fairly symmetric mild sloping to moderately severe sensorineural hearing loss with associated tinnitus.  

An August 2005 statement from a private ear, nose and throat doctor indicates the Veteran has bilateral sensorineural hearing loss which is most likely noise induced based on the Veteran's history and is therefore, a service-related condition.  

The Veteran underwent a VA audio consult in December 2009.  At that time he complained of tinnitus and difficulty hearing female voices on the cell phone.  He reported a history of military noise exposure.  Valid, repeatable puretone thresholds could not be obtained, despite reinstruction.  Overall configuration of test results, in the absence of valid puretone results, suggested normal hearing sensitivity, with a possible high frequency hearing loss in the higher frequencies.  

The Veteran underwent a VA examination in July 2010.  He reported a history of noise exposure to jet aircraft engine noise and explosions without hearing protection while on active duty.  Post service, he reported working in the engine room as a merchant seaman, wearing hearing protection when around noise.  He also reported bilateral tinnitus that started while he was serving in the military.  Audiometric testing showed a bilateral hearing loss disability for VA purposes.  Diagnosis was moderate, high frequency bilateral sensorineural hearing loss and bilateral subjective tinnitus.  The examiner stated that the tinnitus was as likely as not a symptom associated with the hearing loss.  The examiner provided the following opinion:

There is no documentation of ear/frequency specific hearing levels at time of [release from active duty].  Therefore, based on the Veteran's reported history of significant noise exposure both during and after military service, it is not possible to determine if the etiology of the hearing loss or tinnitus is related to military noise exposure without resorting to mere speculation.  

The Veteran is competent to report in-service noise exposure.  See Charles v. Prinicipi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation).  Personnel records show the Veteran served in the Navy as an electronics technician, to include service in Vietnam.  The Board concedes acoustic trauma.  

Evidence of record shows a current bilateral hearing loss disability and the question is whether it is related to active service or events therein, to include noise exposure.  The record contains evidence both for and against the claim.  That is, the August 2005 private physician related the Veteran's hearing loss to service and the July 2010 examiner indicated he could not resolve the question without resorting to speculation.  On review, the VA opinion is not considered adequate and resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted.  See 38 C.F.R. § 3.102.

Evidence of record also shows a current diagnosis of tinnitus.  The VA examiner stated that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss. Accordingly, service connection is also warranted for tinnitus. 38 C.F.R. §§ 3.102, 3.310.

      Heart disorder

In July 2009, the RO denied service connection for a heart condition as secondary to PTSD.  The Veteran disagreed with the decision and perfected this appeal.  The Board notes that service connection was specifically denied for ischemic heart disease due to herbicide exposure and a statement of the case was furnished on this issue in April 2013.  The Veteran did not submit a VA Form 9 on that issue, but the theory of entitlement remains for consideration.  That is, if there is evidence of ischemic heart disease, it would be presumptively associated with herbicide exposure.

At the Central Office hearing, the Veteran testified that he kept getting a pain on his left side where a heart attack would be.  He further testified that he had not been diagnosed with an actual heart disorder.  

Review of service treatment records is negative for any chronic heart disorder and evidence of record does not show cardiovascular disease manifested to a compensable degree within one year following discharge from service.  

In June 2012, the Veteran underwent a VA diabetes examination.  The examiner stated that the Veteran was known to be free of ischemic heart disease, having had a cardiac catheterization in October 2010 showing normal coronary arteries.  

Private records show the Veteran was seen in August 2012 for complaints of left anterior chest pain and arm pain.  On physical examination, the cardiac system was described as "normal regular normal S1 normal S2".  Assessment was chest pain. The physician stated that the Veteran was overall doing well from a cardiology standpoint with good blood pressure.  The chest discomfort was of uncertain etiology and he thought it was unlikely to be related to significant coronary artery disease.  

The Board has review the record and is unable to find objective evidence establishing a current heart disorder.  Without a currently diagnosed disability, service connection may not be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.

The Board acknowledges that it is remanding the issue of service connection for an acquired psychiatric disorder for additional development and that the Veteran initially claimed a heart disorder secondary to this condition.  There is no need, however, to defer the heart issue as the evidence does not show a current disorder.  

      Liver and kidney disorders 

In June 2005, the RO denied service connection for a liver/kidney condition secondary to exposure to UHF radios/radar and/or exposure to carbon tetrachloride.  The Veteran disagreed with the decision and perfected this appeal.  

At the November 2009 DRO hearing, the Veteran testified that his acupuncturist says his liver is damaged.  At the Central Office hearing, the Veteran testified that there were sonar and UHF radios on board ships and he used carbon tetrachloride to clean electronic equipment.  He reported that he had to urinate a lot.  He did not know if his liver had been tested but he had a CAT scan and it was a little large and fatty.  

Service personnel records show the Veteran worked with UHF communication equipment.  Service treatment records show the Veteran underwent an intravenous pyelogram in January 1972 and it was normal.  Service treatment records are negative for any chronic liver or kidney disorder.  

In March 2000, the Veteran underwent an upper GI and small bowel series at a private facility.  The liver was normal in appearance without evidence of mass or other abnormality.  Evaluation of the kidneys demonstrated a less than 1.0 cm low attenuation mass of the anteromedial aspect of the lower pole of the left kidney and was too small to definitively characterize.  The kidneys were otherwise unremarkable and renal excretion was present bilaterally.  

In March 2006, the Veteran underwent a CT of the abdomen and pelvis.  The liver was within normal limits.  The kidneys demonstrated a 1.5 cm right renal simple cyst.  No additional renal abnormalities were identified.  

In April 2007, the Veteran submitted an internet article indicating that inhalation of vapors from TCE can affect the human central nervous system and that liver and kidney effects have been reported in humans.  

A lumbar spine MRI in April 2009 incompletely visualized masses which might be 2 left renal parapelvic cysts measuring approximately 2.5 and 1.7 cm respectively.  

On review, the Veteran appears to have renal cysts, but otherwise has no renal disease.  Evidence of record does not show a liver disorder and there is no indication that the claimed disorders are related to active service or events therein, to include the reported exposures.  

In making this determination, the Board acknowledges that medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.  See Mattern v. West, 12 Vet. App. 222 (1999). The submitted article is not specific to the Veteran's case and does not serve to establish current disability or a nexus to service.  

Additionally, the Veteran is not competent to diagnosis a liver or kidney condition nor is he competent to provide a medical opinion on a complex medical question.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).

The Board acknowledges the Veteran is service-connected for diabetes but VA examination in June 2012 indicated there was no diabetic renal disease.  Secondary service connection is not warranted.  

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.
      Ventral hernia

In June 2005, the RO denied service connection for a ventral hernia.  The Veteran disagreed with the decision and perfected this appeal.  

At the Central Office hearing, the Veteran testified that the doctors at the VA hospital said he has a ventral hernia between 1995 and 2001 and that it had not gone away.  He thinks that his hernia has been exacerbated by the GERD not being treated.  

Review of service records shows the September 1972 Physical Evaluation Board (PEB) report noted a small hiatal hernia.  A ventral hernia was not noted during service.  

In January 1999, the Veteran underwent an upper GI with small bowel for a several year history of epigastric and mild diffuse abdominal discomfort of unclear etiology.  Impression included "[n]ormal upper GI with small bowel follow through, with specifically no evidence of a hiatal hernia, peptic ulcer disease, or a ventral hernia."  

The Veteran underwent an esophagus and hiatal hernia VA examination in December 2004.  On physical examination, the abdomen was reported as obese with a ventral hernia present.  

An October 2010 PET scan showed a very small hiatal hernia and tiny fat containing umbilical hernia.  A ventral hernia was not noted.  

The record contains inconsistent information regarding whether the Veteran has a ventral hernia.  Considering the December 2004 VA examination, the Board concedes current disability.  There is, however, no indication that this condition first manifested during service or is otherwise related to same.  The record also does not contain probative evidence showing the ventral hernia is proximately due to or aggravated by service-connected GERD.  The Board acknowledges the Veteran's contentions, but he is not competent to provide a medical nexus opinion and his unsupported lay assertions are not considered probative.  See Woehlaert.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.

     Back condition, including degenerative joint disease, spina bifida and tumors

In November 2007, the RO denied service connection for a back condition due to tumors from Agent Orange exposure.  The Veteran disagreed with the decision and perfected this appeal.  

In an October 2008 statement, the Veteran argued that because of a concussion on active duty, he has damage to the cervical spine and this is when he felt the tumors started on his lower spine.  At the Central Office hearing, the Veteran testified that he injured his back in service when he fell out of his rack and fell down a ladder.  

Service records show that in January 1969, the Veteran fell to his head on the deck when the chain of his bunk broke and he hurt his head.  His neck also hurt.  Following examination, impression was abrasion to the forehead.  Skull x-rays were negative.  Complaints related to the lumbar spine were not documented.  Spina bifida of S1 was noted on barium enema testing in January 1972.  The records are otherwise negative for an in-service chronic lumbar spine disorder.  

Mild degenerative changes within the lower lumbar spine, involving L4/5, were noted on a January 1999 upper GI with small bowel.  

The Veteran was evaluated by a private orthopedist in January 2006.  He reported low back pain radiating in to the lower extremity.  Following examination and review of recent MRI, impression was "[a]t this juncture, [the Veteran] continues with low back pain with pain radiating into the left lower extremity in the presence of possible schwannoma involving the left L5 nerve root."  

The Veteran underwent a VA examination in May 2009.  At that time, he reported that he fell from a ship bunk and suffered trauma to his mid back.  Following examination and review of prior MRI studies, diagnosis was lumbar spine degenerative joint disease and S1 spina bifida.  The examiner stated that the S1 spina bifida was congenital and asymptomatic and it was his opinion that it was not related in any way to the present lumbar spine degenerative joint disease.  

An August 2009 lumbar spine MRI showed: (1) No MRI evidence of abnormal enhancement to suggest a nerve sheath tumor; (2) Multilevel spondylosis in the lower lumbar spine which was most pronounced at L4-5 with a right interforaminal disk protrusion with moderate right neural foraminal narrowing; and (3) large hemangioma at the L1 vertebral body with a smaller hemangioma seen at L3.  

On review, the Board concedes a current disability.  Evidence of record shows degenerative joint disease of the lumbar spine and spina bifida.  These diseases are not presumptively associated with Agent Orange exposure.  See 38 C.F.R. § 3.309(e).  

In considering whether direct service connection is warranted, the in-service spina bifida is shown to be congenital.  VA regulations prohibit service connection for congenital or developmental defects unless such defect was subjected to a superimposed disorder or injury which created additional disability. See VAOPGCPREC 82-90; 55 Fed. Reg. 45711 (1990).

Regarding whether there was an in-service event, the Board acknowledges the Veteran's testimony that he fell out of his bunk and injured his back.  The Veteran is competent to report this.  See Charles.  Service treatment records do show he fell out of his bunk.  His complaints, however, were limited to his head and neck.  There is no indication of a back injury and the Board does not find the Veteran's reports sufficient to establish an in-service or superimposed injury.  

On review, lumbar spine arthritis was not shown within one year following discharge from active service and the preponderance of the evidence is against finding that the current disorder is related to active service or events therein, to include the claimed fall or Agent Orange exposure.  The Board has considered the Veteran's contentions, but he is not competent to provide a nexus opinion on a complex medical question.  See Woehlaert.  The doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.  

New and material evidence

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000).  In determining whether evidence is new and material, the credibility of the new evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." 

	Chloracne

In December 2001, the RO denied service connection for chloracne due to Agent Orange exposure, essentially based on findings that there was no current evidence of chloracne or any evidence of chloracne during service or within one year from the last exposure.  The Veteran did not timely appeal this decision and it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

Thereafter, the Veteran requested to reopen his claim and in June 2005, the RO reopened the claim, but continued the denial.  The Veteran disagreed with the decision and perfected this appeal.  

Pertinent evidence at the time of the final December 2001 rating decision included service and post-service treatment records, which were negative for any evidence of chloracne.  

Evidence submitted since the December 2001 decision includes an October 2007 statement from the Veteran's private physician wherein he stated that "[c]hloracne may be related to exposure to environmental hazards at duty stations during military duty."  This evidence is new.  It is also material in that it relates to an unestablished fact and raises a reasonable possibility of substantiating the claim.  That is, it suggests a diagnosis of chloracne during the appeal period and a possible relationship to service.  Accordingly, the claim is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  

Additional development is needed prior to a consideration on the merits.  This will be addressed in the remand portion below.   

	Right and left knee disorders

In December 2001, the RO denied service connection for bilateral knee problems essentially based on a finding that no chronic disability subject to service connection had been identified in the service medical records or by current medical evidence.  The Veteran did not timely appeal this decision and it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

Thereafter, the Veteran requested to reopen his claim and in June 2005, the RO continued the denial.  The Veteran disagreed with the decision and perfected this appeal.  

Relevant evidence at the time of the December 2001 denial included service and post-service treatment records.  Service records did not show any chronic knee disability.  A June 2000 chiropractic statement shows the Veteran was examined for left knee pain and it appears there may be a possible medial meniscus tear.  Subsequent records document complaints of pain in both knees and a November 2001 MRI of the right knee showed: (1) posterior horn medial meniscus tear; medial femoral condylar and patellar cartilage defects; (3) moderate effusion and Baker's cyst; and (4) minimal edema within medial tibial plateau but no fracture.  Also of record was a June 2000 statement wherein the Veteran reported that he sustained injuries on a boat and was treated at an army hospital in Vietnam.  

Since the December 2001 final rating decision, a significant amount of evidence has been added to the claims folder.  This includes a January 2005 VA examination showing the Veteran underwent a left knee arthroscopic surgery in September 2004 and also includes a diagnosis of right knee mild degenerative joint disease.  A February 2005 VA record indicates the Veteran underwent a right total knee replacement in January 2005.  At the Central Office hearing, the Veteran provided testimony regarding in-service knee injuries.  He reported that he fell and hurt both knees on the ship and also that he tripped in a hole in Vietnam.  He further testified that he continued to have problems with his knees after that.

To the extent the evidence was not previously considered and/or shows additional diagnoses, it is new.  It is also material in that it relates to an unestablished fact and raises a reasonable possibility of substantiating the claim.  That is, it indicates bilateral knee disorders status post surgery and suggests a possible relationship to service.  The Veteran's testimony added additional details regarding claimed in-service injuries and satisfies the low threshold as set forth in Shade.  Accordingly, the claim is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  

Additional development is needed prior to a consideration on the merits.  This will be addressed in the remand portion below.   


Nonservice-connected pension

In June 2005, the RO denied entitlement to nonservice-connected pension.  The Veteran disagreed with the decision and perfected this appeal.  

Improved (nonservice-connected) pension is a benefit payable by VA to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct.  38 U.S.C.A. § 1521(a). 

Basic entitlement to nonservice-connected pension exists if a veteran: (1) meets the service requirements; (2) meets the net worth and income requirements; and (3) is age 65 or older; or is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct.  38 C.F.R. § 3.3(a)(3). 

The Veteran served 90 days or more during a period of war (Vietnam era) and the service requirements are established.  38 C.F.R. §§ 3.2, 3.3(a)(3)(i).  The Veteran is also over age 65 and is in receipt of Social Security benefits.  

To be eligible for pension, however, the Veteran's income cannot exceed the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23.  38 C.F.R. § 3.3(a)(3)(v).  Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under § 3.272.  38 C.F.R. § 3.271 (2015).

A March 2010 VA memo shows the Veteran's Social Security benefits and VA compensation exceeded the MAPR.  Evidence of record shows the Veteran continues to receive both Social Security and VA benefits and thus, he is over income for pension and the claim is denied.  

The Veteran is advised that pension is an income based program and that his current level of VA compensation (50 percent) is clearly the greater benefit.  


ORDER

A rating greater than 30 percent for diverticulosis of the colon is denied.

A rating greater than 10 percent for hiatal hernia, GERD is denied. 

A compensable rating for rectal polyps is denied.  

A rating greater than 10 percent for gouty arthritis is denied.

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.  

Service connection for a heart disorder is denied.  

Service connection for liver and kidney disorders is denied.

Service connection for a ventral hernia is denied.  

Service connection for a back condition including degenerative joint disease, spina bifida and tumors, is denied.  

New and material evidence having been received, the claim of service connection for chloracne is reopened and to this extent only, the appeal is granted.

New and material evidence having been received, the claim of service connection for right and left knee disorders is reopened and to this extent only, the appeal is granted.  

Entitlement to nonservice-connected pension benefits is denied.  



REMAND

With regard to the issues remanded herein, updated VA records should be obtained.  See 38 C.F.R. § 3.159(c)(2).

Service connection for an acquired psychiatric disorder, to include PTSD

In June 2005, the RO denied service connection for PTSD.  The Veteran disagreed with the decision and perfected this appeal.  The Board has rephrased the appeal issue as service connection for an acquired psychiatric disorder, to include PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

At the November 2009 DRO hearing, the Veteran referenced Vet Center treatment.  The Veteran should be asked to identify the location and dates of treatment and the RO should attempt to obtain these records.  

The Veteran underwent a VA PTSD examination in August 2010.  Following examination, diagnosis was anxiety disorder, not otherwise specified.  The examiner stated that the Veteran did not meet the full criteria for a PTSD diagnosis at this time.  The examiner did not address whether the anxiety disorder was related to service.  

In October 2014, the RO requested a mental disorders examination.  The Veteran failed to report and indicated he did not want to attend the examination.  The Board, however, finds that an addendum is needed as concerns the August 2010 examination.  That is, the examiner should be requested to opine as to whether there is any relationship between the diagnosed anxiety disorder and active service or events therein.  In this regard, the Board notes that in May 1972, an in-service psychologist diagnosed him as having a passive-aggressive personality.  The examiner stated that there was no evidence of psychiatric disorder but instead, his problems appeared to result from longstanding character disorder.  On VA examination in April 1975, the examiner feared they were dealing with a true paranoid schizophrenic.  

Service connection for a respiratory condition

In July 2009, the RO denied service connection for a respiratory condition as secondary to PTSD.  The Veteran disagreed with the decision and perfected this appeal.  

At the Central Office hearing, the Veteran argued that the respiratory condition was secondary to service-connected GERD.  He testified that he has a spot on his lung but they did not want to see him because he was in the Navy and exposed to asbestos.  He further stated that the anesthesiologist told him that the acid from GERD could cause his asthma.  

Private medical records note diagnoses of both asthma and chronic obstructive pulmonary disease.  

An April 2010 VA intestinal examination included a diagnosis of recurring bronchitis possibly related to GERD.  

In October 2014, the RO requested a VA respiratory examination and the Veteran failed to report.  Regardless, and because the Board finds the prior opinion speculative, an addendum opinion should be requested.  See 38 C.F.R. § 3.159(c)(4).  Additionally, the opinion should address whether there is any relationship to service on a direct basis.  The Veteran was an electronics technician and exposure to asbestos is considered probable.  See M21-2, Part IV.ii.1.l.3.c.

Service connection for dental deterioration for dental treatment purposes 

In July 2009, the RO denied service connection for dental treatment purposes for dental deterioration secondary to gastroesophageal reflux.  The Veteran disagreed with the decision and perfected this appeal.  

At the Central Office hearing, he testified that he was losing his teeth due to service-connected GERD and he believes his teeth are eroding from acid.  He further argued that there were competing opinions of record and reasonable doubt should be resolved in his favor.  

The Board acknowledges the opinions of record, but notes that dental treatment is not available for noncompensable conditions that arise secondary to service-connected disabilities.  See 38 C.F.R. § 17.161 (2015) (no class for such claims); see also 38 U.S.C.A. § 1712(a)(1) (West 2014) (Limiting dental services and treatment to situations defined in the statute).  Thus, even if his service-connected GERD is affecting his teeth, there is no class for treatment.

There is, however, a dental treatment class available for Veterans whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rate by reason of TDIU.  38 C.F.R. § 17.161(h).  

As the Board is remanding several service connection claims as well as a claim for TDIU, the claim for dental treatment must be deferred.  

Service connection for interstitial cystitis with secondary thrombosis/varicocele, bilateral testes

In June 2005, the RO denied service connection for interstitial cystitis with secondary thrombosis/varicocele, bilateral testes.  The Veteran disagreed with the decision and perfected this appeal.  

At the Central Office hearing, the Veteran reported extreme pain in the left testicle since January 1971 and that he had problems with cystitis when he was in the Navy.  

Service treatment records document complaints of testicular pain and the Veteran essentially testified as to continuing problems.  Current VA records show complaints of scrotal pain and active problems include cystitis and varicocele.  

An October 2009 statement from a private urologist indicates the Veteran had a longstanding significant urologic history dating back to 1972 when he developed bilateral testicular pain.  This had been undiagnosed and unresolved.  He also had had significant lower urinary tract symptoms since 1984.  Urodynamic testing and cystoscopy in November 2009 confirmed bladder outlet obstruction.  

On review, the Board finds a VA examination is needed.  See 38 C.F.R. § 3.159(c)(4).  Complaints were noted during service, there are current findings, and a private statement notes a significant urologic history dating back to 1972.  The Board acknowledges the Veteran's statements that he did not want to report for VA examinations.  The Veteran has not failed to report for a VA examination as concerns this issue and in an effort to assist him with the development of his claim, the Board is requesting this examination and opinion.  Should he fail to report, 38 C.F.R. § 3.655 will be for application.  

Service connection for peripheral neuropathy of the right and left upper extremities

In June 2005, the RO denied service connection for peripheral neuropathy of the right and left upper extremities.  The Veteran disagreed with the decision and perfected this appeal.  

At the Central Office hearing, the Veteran testified that during service a chain broke on his bunk and he went sliding off and into a locker.  He reported that a guy in the top bunk who weighed approximately 220 pounds rolled off his bunk as well and hit him between the shoulder blade and the spine.  He further testified that a neurologist in 2007 said that his peripheral neuropathy is due to cervical spine damage.  He also testified that the neuropathy started when he was in Vietnam.

Service treatment records show that in January 1969 he hit his head on the deck when the chain of his bunk broke and hurt his head.  His neck also hurt if he turned around.  Skull series was normal.  Impression was abrasion to forehead.  

An October 2007 statement from the Veteran's private physician indicates his peripheral neuropathy may be related to previous active military duty.  

The Veteran underwent a VA diabetes examination in June 2012.  No diabetic neuropathy was noted.  The examiner stated that the Veteran did not claim diabetic neuropathy but claimed upper extremity neuropathy on other bases and that he had cervical spondylosis.  

On review, evidence of record shows a current diagnosis and there is a medical statement suggesting it may be related to military service.  A VA examination is needed to address the etiology of the claimed peripheral neuropathy of the upper extremities.  The Veteran has not been specifically scheduled for a VA examination to address this question and in an effort to assist him in the development of his claim, the Board is requesting this examination and opinion.  Should he fail to report, 38 C.F.R. § 3.655 will be for application.  

Service connection for chloracne

As discussed above, the claim is reopened.  It is unclear from the evidence of record whether the Veteran has a confirmed diagnosis of chloracne or other acneform disease consistent with chloracne.  At the March 2007 DRO hearing, the Veteran testified that he had a thing on his nose and that VA will not say its chloracne, but that is what it is.  An October 2007 statement from the Veteran's private physician notes chloracne but provides no objective findings or basis for the diagnosis.  At the Central Office hearing, the Veteran testified that he has adult acne, not diagnosed as chloracne.  He further reported that he had had no treatment for chloracne but had a tumor under his eye.  

There is no indication of chloracne manifested to a compensable degree within one year following the Veteran's last in-service exposure to herbicides.  Thus, even assuming a current diagnosis, service connection on a presumptive basis as due to herbicide exposure is not warranted.  See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e).  

Notwithstanding, service connection can still be established on a direct basis as due to herbicide exposure and considering the October 2007 medical statement, the Board finds a VA examination and opinion are needed.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  

The Board again acknowledges the Veteran's statements that he does not want to report for VA examinations.  He has not failed to report for any scheduled skin examination and 38 C.F.R. § 3.655 is not currently for application.  

Service connection for left and right knee disorders

As discussed above, the claim is reopened.  Additional development is needed prior to consideration on the merits.  See 38 C.F.R. § 3.159(c).

Service treatment records show the Veteran was seen in October 1967 with multiple abrasions, contusions and lacerations following a bar fight.  This included a stab wound of the mid anterior pre-tibial area on the left and a right knee bruise.  At the Central Office hearing, the Veteran testified that he hurt his knees when he fell down a ladder during service and when he tripped in a hole in Vietnam.  

An October 2001 VA record notes complaints of bilateral knee pain, right worse than left, which may very well be secondary to a meniscus tear.  The Veteran's reported history was not altogether consistent with his medical records.  

Evidence of record shows the Veteran underwent a left knee arthroscopic surgery in September 2004 and a right total knee replacement in January 2005.  The Board is unable to locate the operative reports in the electronic record and these should be obtained.  

The Board acknowledges that a VA examination was conducted in January 2005.  The examiner did not provide an etiology opinion as concerns the knees and the Veteran had apparently undergone surgery since that time.  On review, a current VA examination is needed to determine the nature and etiology of claimed knee disorders.  

The Board again acknowledges the Veteran's statements that he did not want to report for VA examinations.  He has not failed to report for any scheduled knee examination and 38 C.F.R. § 3.655 is not currently for application.  

TDIU

In February 2015, the RO furnished a statement of the case addressing entitlement to TDIU.  The Veteran did not submit a timely Form 9.  Nonetheless, this issue is considered as part of the claims for increase and is deferred pending the development requested herein.  See Rice v Shineki, 22 Vet. App. 447 (2009) (a claim of entitlement to TDIU is "part of," and not separate from, a claim of entitlement to an increased rating).

Accordingly, the case is REMANDED for the following action:

1.  Request records from the VA Medical Center in Phoenix, Arizona for the period from February 2015 to the present.  

2.  Contact the Veteran and ask him to identify the dates and location of any Vet Center treatment.  Any identified records should be requested.  

3.  Contact the Veteran and ask him to identify and provide authorizations for release of any private records relating to his left knee arthroscopy and right knee replacement.  Any identified records should be requested.  

4.  Return the August 2010 VA PTSD examination for addendum.  If the August 2010 VA examiner is no longer available, the requested information should be obtained from a similarly qualified VA examiner.  The electronic claims folder must be available for review.  

The examiner is requested to state whether the diagnosed anxiety disorder, not otherwise specified, is at least as likely as not related to active military service or events therein.  

A complete rationale should be provided for any opinion offered.  If the examiner is unable to provide an opinion without further examination, he/she should so state.  

5.  Return the April 2010 VA examination for addendum.  If the April 2010 VA examiner is no longer available, the requested information should be obtained from a similarly qualified VA examiner.  The electronic claims folder must be available for review.  

The examiner is requested to state whether any respiratory disorder is at least as likely as not related to active service or events therein, to include asbestos or other exposures.

If none of the respiratory disorders are related to service, provide an opinion as to whether it is at least as likely as not that any current respiratory disorder is proximately due to or aggravated (permanently worsened) by service-connected GERD.  

A complete rationale should be provided for any opinion offered.  If the examiner is unable to provide an opinion without further examination, he/she should so state.  

6.  Schedule the Veteran for a VA genitourinary examination.  The electronic claims folder must be available for review.  

The examiner is requested to indicate whether the Veteran's cystitis, varicoceles, or other identified genitourinary disorders, are at least as likely as not related to active service or events therein.  In making this determination, the examiner is advised that the Veteran is competent to report his symptoms and onset.  If there is a medical basis to doubt the history as reported, the examiner should so state.  

A complete rationale should be provided for any opinion offered.

7.  Schedule the Veteran for a VA neurological examination.  The electronic claims folder must be available for review.  

The examiner is requested to indicate whether any peripheral neuropathy of the upper extremities is at least as likely as not related to active service or events therein, to include the January 1969 injury or Agent Orange exposure.

If the peripheral neuropathy of the upper extremities is not related to active service, the examiner is requested to indicate whether it is at least as likely as not proximately due to or aggravated (permanently worsened) by service-connected diabetes.  

A complete rationale should be provided for any opinion offered.

8.  Schedule the Veteran for a VA skin examination.  The electronic claims folder must be available for review.  

The examiner is requested to indicate whether the Veteran has chloracne or other acneform disease consistent with chloracne.  If so, the examiner should state whether such is at least as likely as not related to active service or events therein, to include Agent Orange exposure.  The examiner is advised that even though chloracne is not shown within one year after the last exposure to herbicides, service connection may still be established on a direct basis.

A complete rationale should be provided for any opinion offered.

9.  Schedule the Veteran for a VA joints examination.  The electronic claims folder must be available for review.  

The examiner is requested to identify any disorders of the right and left knees.  For each disorder identified, the examiner is requested to state whether it is at least as likely as not related to active service or events therein.  

The examiner is advised that the Veteran is competent to report that he injured his knees during service.  If there is a medical basis to doubt the history as reported, the examiner should so state.  The examiner should also consider the impact of any post-service injuries.  

A complete rationale should be provided for any opinion offered.

10.  The Veteran is advised that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655.  

11.  Upon completion of the requested development and any additional development deemed appropriate, readjudicate the remaining appeal issues.  If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response.  

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs