Citation Nr: 1753516 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-01 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for arthritis of the lumbosacral spine. 2. Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy. 3. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy from April 14, 2015. 4. Entitlement to an initial compensable rating for sinusitis. 5. Entitlement to an initial compensable rating for herpes simplex type I and II. 6. Entitlement to an initial rating higher than 30 percent for a hysterectomy. 7. Entitlement to an initial rating higher than 10 percent for right knee chondromalacia. 8. Entitlement to service connection for a bilateral hand disability. 9. Entitlement to service connection for irritable bowel syndrome. 10. Entitlement to service connection for a hernia. 11. Entitlement to service connection for an acquired psychiatric disorder. 12. Entitlement to service connection for a lung disability. 13. Entitlement to service connection for a cervical spine disability. 14. Entitlement to service connection for a left knee disability. 15. Entitlement to service connection for a bilateral hip disability. 16. Entitlement to service connection for a bilateral arm disability. 17. Entitlement to service connection for a bilateral shoulder disability. 18. Entitlement to service connection for a bilateral leg disability. 19. Entitlement to service connection for a jaw disability. 20. Entitlement to service connection for rheumatoid arthritis. 21. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from April 1979 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board remanded the Veteran's claims for additional development in October 2014. The issues of entitlement to service connection for a bilateral hand disability, irritable bowel syndrome, an acquired psychiatric disability, a cervical spine disability, a left knee disability, a bilateral hip disability, a bilateral arm disability, a bilateral shoulder disability, and a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Arthritis of the lumbosacral spine is not manifested by forward flexion of 30 degrees or less, or by ankylosis of the thoracolumbar spine. 2. Right lower extremity radiculopathy is not manifested by moderate incomplete paralysis of the sciatic nerve. 3. From December 9, 2010, left lower extremity radiculopathy has been manifested by mild incomplete paralysis of the sciatic nerve. 4. Prior to November 6, 2012, sinusitis was manifested by up to six non-incapacitating episodes per year; from November 6, 2012, it was manifested by more than six such episodes. 5. Herpes simplex does not affect at least 5 percent of total or exposed body area, and is not treated with corticosteroids or other systemic therapies. 6. The Veteran's hysterectomy was performed many years prior to the appeal period, and her oophorectomy is not associated with service. 7. Right knee chondromalacia is not manifested by flexion of 45 degrees or less, extension of 10 degrees or less, subluxation or instability, or locking and effusion. 8. The Veteran does not have a current hernia disability, and diagnosed benign hemangiomas are not etiologically related to service. 9. The Veteran's diagnosed lung conditions are etiologically related to tobacco abuse. 10. An unspecified temporomandibular joint condition is not etiologically related to service. 11. The Veteran does not have a current rheumatoid arthritis condition, and diagnosed fibromyalgia is not etiologically related to service. 12. Left leg and ankle tendinopathy is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for arthritis of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for an initial rating higher than 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for an initial 10 percent rating for left lower extremity radiculopathy have been met from December 9, 2012. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). 4. Prior to November 6, 2012, the criteria for an initial 10 percent rating for sinusitis have been met. From that date, the criteria for an initial 30 percent rating have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6514 (2017). 5. The criteria for an initial compensable rating for herpes simplex type I and type II have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7806 (2017). 6. The criteria for an initial rating higher than 30 percent for a hysterectomy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.116, Diagnostic Code 7618 (2017). 7. The criteria for an initial rating higher than 10 percent for right knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2017). 8. The criteria for service connection for a hernia have not been met. 38 U.S.C. §§ 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. § 3.303 (2017). 9. The criteria for service connection for a lung condition have not been met. 38 U.S.C. §§ 1103, 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.300, 3.303 (2017). 10. The criteria for service connection for a jaw condition have not been met. 38 U.S.C. §§ 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. § 3.303 (2017). 11. The criteria for service connection for rheumatoid arthritis have not been met. 38 U.S.C. §§ 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 12. The criteria for service connection for a bilateral leg condition have not been met. 38 U.S.C. §§ 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In correspondence dated September 2017, the Veteran's representative asserted that the Veteran's service-connected disabilities on appeal had worsened since her last examination. While the Board acknowledges this statement, the claims in question were already remanded in October 2014 for new examinations in response to an earlier assertion that the Veteran's conditions had worsened. These claims arise from initial ratings assigned during an appeal period dating back to July 2008. An additional remand is therefore not appropriate in this case. See Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). A. Lumbar Spine The Veteran is currently assigned a 20 percent rating for her lumbar spine condition under Diagnostic Code (DC) 5242, which is part of the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. That formula provides for a higher 40 percent rating when forward flexion of the thoracolumbar spine is 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating is warranted with unfavorable ankylosis of the entire thoracolumbar spine. In this case, the criteria for a higher rating have not been met. Private treatment records dated August 2008 documented full range of motion, albeit with tenderness present. During an October 2009 VA examination, flexion was 50 degrees without pain. Repetitive testing resulted in pain but no additional functional limitation. An April 2015 VA examination documented 60 degrees of forward flexion. Pain was present but did not result in functional loss, and range of motion was unchanged with repetitive testing. The examiner further noted that functional ability was not significantly limited by pain, weakness, or other factors with repetitive use over time. Neither examination documented the presence of any ankylosis. As forward flexion is not shown to be 30 degrees or less, even when accounting for pain, the criteria for a higher rating have not been met. In evaluation the Veteran's lumbar spine condition, the Board has considered whether separate ratings are warranted for any associated neurologic abnormalities. The Veteran has already been assigned separate ratings for bilateral lower extremity radiculopathy, and those ratings are addressed below. In addition to radiculopathy, VA records from August 2011 show the Veteran reported urinary and fecal incontinence. In January 2013, she reported experiencing such incontinence frequently since a 2010 motor vehicle accident. Urinary voiding dysfunction is rated under 38 C.F.R. § 4.115a. A 20 percent rating is warranted when the condition requires the use of absorbent materials which must be changed less than twice a day. Fecal incontinence is rated under 38 C.F.R. § 4.114, DC 7332. A 10 percent rating is warranted for constant slight leakage or occasional moderate leakage. While the Board has considered the Veteran's reported symptoms, separate ratings for urinary and fecal incontinence are not warranted. First, while she reported in January 2013 that she experienced such symptoms frequently, additional records from October 2012 show reports of only occasional urinary incontinence with laughter. The inconsistent nature of these statements by the Veteran affects their credibility. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (the credibility of lay evidence can be affected and even impeached by inconsistent statements). Second, VA examinations from October 2009 and April 2015 documented no such incontinence, and the Veteran's extensive outpatient records do not reflect any treatment or further evaluation of her reported incontinence. These records do not demonstrate urinary incontinence requiring the use of absorbent material or any fecal leakage. When viewed alongside her inconsistent statements regarding symptoms, the Board finds that the evidence is against a finding that separate ratings for urinary or fecal incontinence are appropriate in this case. Finally, the Board has considered a rating under the Formula for Rating Intervertebral Disc Syndrome Based on incapacitating episodes, also found in 38 C.F.R. § 4.71a. However, ratings under this formula require periods of acute signs and symptoms requiring bed rest and treatment prescribed by a physician. No such episodes have been demonstrated during the appeal period, and therefore a rating under this formula is not warranted. B. Lower Extremity Radiculopathy The Veteran has been assigned a 10 percent rating for radiculopathy in each leg under DC 8520. Notably, the rating for the right leg is effective for the entire appeal period, whereas the rating for the left leg is effective only from April 4, 2015. DC 8520 provides ratings for paralysis or incomplete paralysis of the sciatic nerve. Disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a, DC 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. 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. See "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Private records from August 2008 and November 2008 documented normal strength, sensation, and reflexes bilaterally. An October 2009 VA examination also noted normal findings in the left leg. However, right leg strength was diminished in the knee (4/5), ankle dorsiflexion (3/5) and great toe extension. Right leg reflexes were also diminished (1+). VA records from December 2010 noted no strength deficit in the left leg, though a sensory deficit was present in a stocking distribution. Right leg strength was diminished (4/5). Reflexes were 1+ in the bilateral Achilles. An April 2015 VA examination recorded normal strength and sensation with diminished reflexes (1+) bilaterally. The examiner noted symptoms of mild intermittent pain, and assessed the Veteran with bilateral mild radiculopathy of the sciatic nerve. Based on this evidence, the Board finds that a rating higher than 10 percent is not warranted for right leg radiculopathy. Throughout the appeal period, the right leg has manifested normal sensation. Reflexes of 1+ and strength mostly documented at 4/5 reflect relatively mild impairment, which is consistent with the assessment of the VA examiner in April 2015. The ankle dorsiflexion strength of 3/5 documented in October 2009, alone, is not sufficient to show moderate incomplete paralysis when compared against the other evidence of record. With respect to the left leg, the Board finds that a 10 percent rating is warranted from December 9, 2010. Prior to that date, the available records do not show any deficiencies in strength, sensation, or reflexes. From that date, a 10 percent rating is warranted based on the sensory deficit and diminished reflexes recorded at that time. However, no strength deficit was found at any point during the appeal period, and the April 2015 VA examiner's overall assessment of the condition was mild, to include mild intermittent pain. Therefore, a higher 20 percent rating for moderate incomplete paralysis is not appropriate. C. Sinusitis The Veteran is currently assigned a 0 percent rating for sinusitis under DC 6514, which is part of the General Rating Formula for Sinusitis. 38 C.F.R. § 4.97. Under this formula, a 0 percent rating is assigned when sinusitis is detectable by x-ray only. A 10 percent rating is assigned for one or two incapacitating episodes of sinusitis per year requiring prolonged (four to six weeks) antibiotic treatment; or 3 to 6 non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes, or more than 6 non-incapacitating episodes. A maximum 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, tenderness, and purulent discharge after repeated surgeries. A Note accompanying this formula states that an incapacitating episode means one that "requires bed rest and treatment by a physician." Initially, the Board notes that there are no documented episodes of sinusitis requiring shown to require bed rest and treatment by a physician. Nevertheless, staged ratings are warranted in this case. Prior to November 6, 2012, a 10 percent rating is warranted. This is based on an October 2009 VA examination which noted 6 non-incapacitating episodes per year, along with VA records showing treatment for sinusitis episodes in May 2010, November 2010, June 2011, June 2012, and October 2012. The examiner's assessment of 6 non-incapacitating episodes per year falls squarely within the criteria of the 10 percent rating, and the treatment records generated prior to November 6, 2012, do not document more than that. From November 6, 2012, a higher 30 percent rating is warranted. VA records show treatment for episodes of sinusitis on that date, as well as December 2012, January 2013, March 2013, June 2013, November 2013, March 2014, April 2014, November 2014, February 2015, April 2015, June 2015, and so forth. An April 2015 VA examiner noted 7 or more non-incapacitating episodes of sinusitis per year, which is consistent with the 30 percent rating. An even higher 50 percent rating is not appropriate during this period. Records and examinations do not demonstrate osteomyelitis following radical surgery, nor does the record reflect near-constant sinusitis following repeated surgeries. D. Herpes Simplex The Veteran is currently assigned a 0 percent rating for herpes simplex under DC 7899-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. DC 7806 addresses dermatitis or eczema. A 0 percent rating is assigned for dermatitis or eczema affecting less than 5 percent of the entire body or less than 5 percent of exposed areas, and when no more than topical therapy is required during a 12-month period. A 10 percent disability rating is assigned for dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; when intermittent systemic therapy (such as corticosteroids or other immunosuppressive drugs) are required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is assigned for dermatitis or eczema affecting at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; when systemic therapy is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent disability rating is assigned for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; when constant or near-constant systemic therapy is required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. In this case, a compensable rating is not warranted. During an October 2009 VA examination, the Veteran reported getting cold sores around her lips and mouth. She denied any current episodes of genital herpes. The physical examination noted no herpetic lesions in the oral or genital areas. During an April 2015 VA examination, the Veteran denied having any outbreaks on her face since 2010, though she reported getting blisters in her nose during sinus infections. She denied having any vaginal outbreaks since service. In sum, prior to 2010, there are no objective findings to support herpes simplex affecting at least 5 percent of the Veteran's total or exposed body area. Although she reported outbreaks in her oral area, the October 2009 VA examination found no lesions. Since 2010, the Veteran has denied having any herpes outbreaks on her face or in her genital area. VA records from April 2010 and February 2016 show the Veteran reported blisters in her nose. However, even assuming these blisters were associated with her herpes simplex condition, the Board reasonably infers that they do not affect at least 5 percent of total body area or exposed body area. Cf. United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) (stating that jurors, as fact finders, may use common sense to evaluate facts). There is also no indication that the Veteran's condition has been treated with any corticosteroids or other systemic therapies. E. Hysterectomy The Veteran is currently assigned a 30 percent rating for her service-connected hysterectomy under DC 7618. Under this code, a 100 percent rating is warranted for the first three months after removal of the uterus, and then a 30 percent rating is assigned. 38 C.F.R. § 4.116. The Veteran is already in receipt of the special monthly compensation for loss of use of a creative organ which may be warranted under DC 7618. The higher 100 percent rating available under DC 7618 is not appropriate in this case, as the Veteran underwent her hysterectomy many years prior to the appeal period. A higher 50 percent rating is available under DC 7617, which addresses the removal of the uterus and both ovaries. Records show the Veteran has undergone an oophorectomy (removal of the ovaries) in addition to her service-connected hysterectomy. However, as noted in an April 2015 VA opinion, the oophorectomy was conducted due to the presence of ovarian cysts. The examiner stated that service treatment records showed no findings pertaining to ovarian cysts, nor were there any clinic notes in service to indicate treatment for ovarian cysts that would eventually require surgery. As the oophorectomy is not part of the service-connected condition, the higher 50 percent rating under DC 7617 is not appropriate. Finally, the Board has considered the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs found in 38 C.F.R. § 4.116. However, this formula only allows for a maximum 30 percent rating and would not benefit this Veteran. F. Right Knee The Veteran is currently assigned a 10 percent rating for right knee chondromalacia under DC 5299-5259. DC 5259 provides for a single 10 percent rating for symptomatic removal of semilunar cartilage. DC 5258 provides a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Although a recent VA examination documented a history of a meniscal tear with surgical treatment, the record reflects no complaints of knee locking and no findings of effusion into the knee joint. Therefore, a rating under DC 5258 is not warranted. DC 5257 provides ratings of 10, 20, and 30 percent for slight, moderate, and severe recurrent subluxation or lateral instability. However, the Veteran denied any subluxation or instability during the April 2015 VA examination, and her outpatient treatment records do not reflect any complaints of instability or "giving way" in the right knee. DC 5260 provides a 10 percent rating when knee flexion is limited to 45 degrees, with higher ratings for more restricted movement. However, the October 2009 VA examination documented 130 degrees of flexion, albeit with pain. There was no change with repetitive testing. The more recent April 2015 VA examination documented 60 degrees of flexion. The Veteran reported pain with palpation of the knee, but no pain was noted with range of motion testing, which was unchanged with repetition. The evidence does not reflect a level of impairment consistent with flexion limited to just 45 degrees. DC 5261 provides a 10 percent rating for knee extension limited to 10 degrees, with higher ratings for more restricted movement. However, extension was full (0 degrees) on both the October 2009 and April 2015 VA examinations. For these reasons, a rating higher than 10 percent is not warranted for the right knee. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). In evaluating the Veteran's service connection claims, the Board notes that she received treatment for a variety of conditions in service, including urinary tract infections, pyelonephritis (kidney infection), an abdominal muscle strain, uterine bleeding, mechanical low back pain, a hot water burn, pregnancy, gastritis, bronchitis, and pelvic inflammatory disease. Given the various symptoms and diagnoses documented in service, the Board has initially determined that if a condition or symptom was not recorded in the service treatment records, it likely was not present in service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). A. Hernia With respect to element (1) of service connection, the overall weight of the evidence is against finding that the Veteran has a current hernia disability. VA records from March 2010 show she reported a bulge on her right side below the tenth rib. The treating physician noted a palpable lump that did not really move much with palpation, and was not pulsatile or fluid-filled. He noted that it felt more like a muscle in spasm. Additional records from June 2010 show a possible ventral hernia, but it was unclear whether there was a hernia at the symptomatic site. Records from August 2010 stated that neither the treating physician nor a radiologist could find evidence of a hernia at the symptomatic site. An April 2015 CT scan was negative for a hernia, and October 2015 records documented a slight asymmetry of the abdominal wall but no suspicion for a hernia. A March 2016 abdominal MRI showed two hepatic masses diagnosed as benign hemangiomas. A "hemangioma" is a general term denoting a benign or malignant vascular malformation which occurs at any age and resembles the newly formed blood vessels that result from malformation of angioblastic tissue of fetal life. See Dorland's Illustrated Medical Dictionary 842 (31st ed. 2007). As the Veteran's hemangiomas were classified as benign, there is no indication that they represent a current disability recognized under VA's rating schedule of disabilities. However, even assuming these hemangiomas qualified as a current disability, there is no indication that they are related to the Veteran's active service. Service treatment records contain multiple entries documenting abdominal pain and other symptoms. However, the Veteran was diagnosed at various times with pyelonephritis, an abdominal muscle strain, pregnancy, pelvic inflammatory disease, and gastritis. There is no evidence to suggest that a hemangioma was present or otherwise incurred during service. Therefore, service connection is not warranted. B. Lungs With respect to element (1), a current disability, private treatment records dated April 2005 show a diagnosis of probable chronic obstructive pulmonary disease (COPD) with bronchitis and possible pneumonia. Additional VA records dated April 2012 and January 2016 also noted diagnoses of COPD and emphysema. Therefore, a current disability has been established. With respect to element (2), an in-service incurrence, service treatment records dated September 1981 show a positive history for a chronic cough. In March 1983, the Veteran was treated for right lung bronchitis. Therefore, element (2) has been met. With respect to element (3), a link between the current condition and service, an April 2015 VA examiner noted that the Veteran admitted to tobacco abuse beginning at age 11, and that it was more likely than not that her breathing problems were related to tobacco abuse than any possible exposure in service. Notably, private records from April 2005 document a smoking history of 1 to 1.5 packs per day for 30 years, and the Veteran was 43 years old at the time. VA records from May 2015 documented that she started smoking at age 12. In March 2007, her private physician noted that she was developing chronic bronchitis and advised her to quit smoking immediately. In sum, the competent medical evidence has attributed the Veteran's COPD, bronchitis, and emphysema to her history of smoking, which preceded service by many years. For claims filed after June 9, 1998, such as in this case, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products, including use during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. (CONTINUED ON NEXT PAGE) C. Jaw With respect to element (1) of service connection, a current disability, an April 2015 VA examination diagnosed an unspecified temporomandibular joint (TMJ) condition. With respect to element (2), an in-service incurrence, service treatment records are negative for any complaints, treatment, or diagnoses pertaining to a jaw condition. Indeed, the Veteran reported during her April 2015 VA examination that she started having pain in her TMJ about 12 to 14 years ago, or approximately 2001 to 2003, many years after her period of active service ending in 1983. There is no indication that a jaw condition had its onset during service or is otherwise etiologically related to service. Therefore, service connection is not warranted. D. Rheumatoid Arthritis The record does not reflect a current diagnosis of rheumatoid arthritis (RA) during the appeal period. VA records dated February 2011 reflect a diagnosis of questionable RA per the Veteran's report. However, the physician noted that her ANA and rheumatoid factor were actually quite low. An April 2015 VA examination stated that there was no current RA diagnosis, based on a review of the available x-ray and laboratory findings. However, private records from May 2005 and January 2013 document diagnoses of fibromyalgia. Therefore, a current disability has been established for that condition. Nevertheless, service treatment records are negative for any findings of fibromyalgia or RA. The Veteran was seen for complaints of pain in service. However, those symptoms were attributed to various diagnoses, including pyelonephritis, muscle strain, mechanical low back pain (now service-connected), pelvic inflammatory disease, and pregnancy. Fibromyalgia has not been shown to have been incurred in service. E. Legs As discussed earlier, the Veteran is already service-connected for radiculopathy of the bilateral lower extremities. The only other current diagnosis of record is left leg and ankle tendinopathy noted during an October 2009 VA examination. While the Board has considered this diagnosis, service treatment records do not document any left lower extremity symptoms or conditions, and there is no evidence to suggest that diagnosed tendinopathy is etiologically related to service. ORDER An initial rating higher than 20 percent for arthritis of the lumbosacral spine is denied. An initial rating higher than 10 percent for right lower extremity radiculopathy is denied. An initial 10 percent rating for left lower extremity radiculopathy is granted from December 9, 2010. Prior to November 6, 2012, an initial 10 percent rating for sinusitis is granted; from that date, an initial 30 percent rating is granted. An initial compensable rating for herpes simplex type I and type II is denied. An initial rating higher than 30 percent for a hysterectomy is denied. An initial rating higher than 10 percent for right knee chondromalacia is denied. Service connection for a hernia is denied. Service connection for a lung condition is denied. Service connection for a jaw condition is denied. Service connection for rheumatoid arthritis is denied. Service connection for a bilateral leg condition is denied. REMAND With respect to the remaining claims on appeal, additional development is necessary before they can be adjudicated on the merits. The Veteran has asserted that a number of her conditions are secondary to her service-connected disabilities. She has argued that her cervical spine condition is either caused or aggravated by her lumbosacral spine arthritis. She has argued that her shoulder and upper extremity conditions are secondary to wheelchair use associated with her service-connected orthopedic disabilities, and there is also substantial evidence that she has upper extremity radiculopathy associated with her cervical spine. She has asserted that her bilateral hip and left knee conditions are secondary to her other service-connected orthopedic disabilities. She has also asserted that her irritable bowel syndrome is secondary to medication used to treat service-connected disabilities, and that her psychiatric condition is associated with her general medical condition. Although these claims were previously remanded, the resulting April 2015 VA opinions did not address any of these secondary service connection theories. Therefore, supplemental opinions are required. With respect to her claim for an acquired psychiatric disorder, the Veteran has also reported experiencing a personal assault and other traumatic experiences, and post-service treatment records show diagnoses of posttraumatic stress disorder (PTSD). Her stressors are largely anecdotal in nature and cannot be verified through any additional military records research. However, an after-the-fact medical opinion may be used to corroborate a personal assault stressor. See 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Therefore, on remand, the examiner should address this as well. Finally, the Veteran's claim for a TDIU should be readjudicated following implementation of the newly assigned ratings granted in this decision and readjudication of the service connection claims still on appeal. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine obtain an opinion as to the etiology of her cervical spine condition. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed. All indicated tests and studies should be completed. The examiner must then address the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disc disease is caused by her service-connected lumbosacral spine arthritis? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disease is aggravated (i.e., worsened) by her service-connected lumbosacral spine arthritis? Although the examiner must review the file, his/her attention is directed to the following evidence: i. Private treatment records dated November 1994 show the Veteran had a two year history of neck pain, and underwent a C6-7 cervical fusion surgery in July 1994. ii. VA records dated March 2011 noted a flexion-extension neck injury as part of a September 2010 motor vehicle accident. The examiner must provide a complete explanation for all opinions, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 2. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of her claimed bilateral shoulder, bilateral arm, and bilateral hand conditions. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed. All indicated tests and studies should be completed. The examiner must then address the following questions: a) Other than radiculopathy or any neurological impairment associated with a cervical spine condition, what are the currently diagnosed shoulder, arm, and hand conditions? b) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) caused by the Veteran's use of a wheelchair or other ambulatory aids? c) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened) by her use of a wheelchair or other ambulatory aids? The examiner must provide a complete explanation for all opinions, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 3. Forward the claims file to an appropriate VA examiner for an opinion regarding the etiology of the Veteran's irritable bowel syndrome (IBS). Following a review of the file, the examiner should address the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's irritable bowel syndrome is caused by medications used to treat her service-connected lumbar spine and right knee conditions? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's irritable bowel syndrome is aggravated (i.e., worsened) by medications used to treat her service-connected lumbar spine and right knee conditions? Although the examiner must review the file, his/her attention is directed to the following evidence: i. Private treatment records dated December 1994 note a history of IBS. ii. VA records dated August 2011 show the Veteran was treated for gastrointestinal upset. She was noted to be taking six to eight ibuprofen tablets a day. The examiner must provide a complete explanation for all opinions, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed bilateral hip and left knee conditions. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed. All indicated tests and studies should be completed. The examiner must then address the following questions: a) Other than radiculopathy or any neurological impairment associated with a cervical spine condition, what are the currently diagnosed hip and left knee conditions? b) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) caused by the Veteran's service-connected lumbar spine, bilateral lower extremity radiculopathy, and/or right knee conditions? c) For each diagnosed condition, is it at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened) by the Veteran's service-connected lumbar spine, bilateral lower extremity radiculopathy, and/or right knee conditions? The examiner must provide a complete explanation for all opinions, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of her acquired psychiatric disorder. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed. All indicated tests and studies should be completed. The examiner must then address the following questions: a) Based on a review of the record and examination of the Veteran, is it at least as likely as not (50 percent or greater probability) that the in-service stressors reported by the Veteran actually occurred? For question a), the examiner's attention is directed to the following evidence: i. Service treatment records dated September 1979, although not fully legible, show the Veteran was seen for emotional distress and threatening suicide. She assessed with an "immature personality," and was described as an impulsive young girl who was concerned over her performance. In September 1981, she denied a history of depression or nervous trouble, but reported a positive history of trouble sleeping. ii. Service personnel records show the Veteran was disciplined for possession of marijuana in October 1980 and September 1981, and for an unauthorized absence in July 1981. iii. In various outpatient visits, the Veteran has reported in-service stressors including sexual harassment from both men and women; being mocked, insulted, and threatened by a superior for reporting harassment; finding naked pictures of women from her barracks in her room; being grabbed and chased by her female lesbian roommate; being caught with marijuana that was planted by another female soldier; and being taken by a superior to help refurbish his private boat, during which he gave her champagne and asked her to wear a swimsuit, and after she walked away, being retaliated against with burdensome duties. iv. In various outpatient visits, the Veteran has reported non-military stressors including being repeatedly raped by her foster father, getting pregnant at age 13, and having an abortion; a history of being in multiple foster homes with sexual abuse; and being abused during previous marriages. b) If the answer to the above question is yes, is it at least as likely as not (50 percent or greater probability) that the Veteran has PTSD etiologically related to those stressors in service? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disorder which is caused by her general medical condition, including service-connected disabilities? d) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disorder which is aggravated (i.e., worsened) by her general medical condition, including service-connected disabilities? For this questions c) and d), the examiner's attention is directed to the following evidence: i. Private records dated March 1995 reflect a diagnosis of probable somatoform disorder with depressive features. ii. SSA records dated November 1999 show a diagnosis of pain disorder with both psychological factors and a general medical condition. iii. May 2006 private records show the Veteran reported being depressed due to pain. The examiner must provide a complete explanation for all opinions, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. 6. Following completion of the above, readjudicate the Veteran's claims for service connection for a cervical spine condition, bilateral hand condition, bilateral arm condition, bilateral shoulder condition, IBS, an acquired psychiatric disorder, and TDIU. If any claim is not granted, send the Veteran a supplemental statement of the case (SSOC), and allow her an appropriate time to respond before returning the issue(s) to the Board for further appellate consideration. 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs