Citation Nr: 1805839	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-10 932A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for bilateral glaucoma and, if so, whether the claim may be granted.

2.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for sleep apnea and, if so, whether the claim may be granted

3.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder to include post traumatic stress disorder (PTSD) and, if so, whether the claim may be granted.

4.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hypertension and, if so, whether the claim may be granted.

5.  Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for radiculopathy of the left lower extremity (LLE) and, if so, whether the claim may be granted.

6.  Entitlement to service connection for residuals of cerebrovascular accident (CVA) claimed as stroke.

7.  Entitlement to a compensable evaluation for surgical scar associated with right inguinal hernia repair.

8.  Entitlement to a compensable evaluation for skin disorders (dermatitis and herpes simplex).

9.  Entitlement to an evaluation in excess of 10 percent for tinnitus.

10.  Entitlement to a compensable evaluation for bilateral hearing loss disability.

11.  Entitlement to an evaluation in excess of 10 percent for anemia.

12.  Entitlement to an evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) with hiatal hernia.

13.  Entitlement to a compensable evaluation for status post right inguinal hernia repair.

14.  Entitlement to an evaluation in excess of 10 percent for right knee disability.

15.  Entitlement to an evaluation in excess of 10 percent for left knee disability.

16.  Entitlement to an evaluation in excess of 10 percent for hammer toe of right foot 5th toe.

17.  Entitlement to an evaluation in excess of 10 percent for hammer toe of left foot 5th toe.

18.  Entitlement to an evaluation in excess of 20 percent for lumbar spine disability.

19.  Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity (RLE).

20.  Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU).

21.  Entitlement to a compensable evaluation prior to November 1, 2013, and an evaluation in excess of 10 percent therefrom for plantar fasciitis of the right foot to include restoration of a 10 percent evaluation for plantar fasciitis prior to November 1, 2013.

22.  Entitlement to a compensable evaluation prior to November 1, 2013, and an evaluation in excess of 10 percent therefrom for plantar fasciitis of the left foot to include restoration of a 10 percent evaluation for plantar fasciitis prior to November 1, 2013.

23.  Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person.

24.  Entitlement to assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only. 

25.  Entitlement to a certificate of eligibility for assistance in acquiring a special home adaptation grant. 

26.  Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing.



REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to July 2003. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The record shows that the Veteran withdrew a hearing request in November 2015.  See Third Party Correspondence (November 2015).

Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

The following issues are REMANDED to the Agency of Original Jurisdiction (AOJ) as explained in the REMAND portion of the decision below:

1.  Entitlement to service connection for an acquired psychiatric disorder to include PTSD.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for residuals of CVA (stroke).
4.  Entitlement to an evaluation in excess of 10 percent for anemia.

5.  Entitlement to an evaluation in excess of 10 percent for right knee disability.

6.  Entitlement to an evaluation in excess of 10 percent for left knee disability.

7.  Entitlement to an evaluation in excess of 20 percent for lumbar spine disability.

8.  Entitlement to TDIU.

9.  Entitlement to SMC based on the need for the regular aid and attendance of another person.

10.  Entitlement to assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only. 

11.  Entitlement to a certificate of eligibility for assistance in acquiring a special home adaptation grant.

12.  Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing.


FINDINGS OF FACT

1.  The claim for service connection for bilateral glaucoma was denied in a May 2008 unappealed decision; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim.

2.  The claim for service connection for sleep apnea was denied in a May 2008 unappealed decision; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim.

3.  The claim for service connection for an acquired psychiatric disorder claimed as PTSD was denied in a May 2008 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.

4.  The claim for service connection for hypertension was denied in a May 2008 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.

5.  The claim for service connection for LLE radiculopathy was denied in a May 2008 unappealed decision; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim.

6.  During the appeal period, the Veteran's skin disorders, dermatitis and herpes simplex, covered less than 5 percent of the entire body and less than 5 percent of exposed areas affected; also the dermatological disorder has not been treated with systemic therapy during this appeal.

7.  During the appeal period, the Veteran's surgical scar on the anterior trunk (from right inguinal hernia repair) is not painful or unstable; involves no visible or palpable tissue loss; measures less than 6 square inches or 77 square centimeters; and does not adversely affect function.

8.  The current single 10 percent evaluation assigned for tinnitus is the maximum evaluation under the VA rating schedule.

9.  During the appeal period, hearing loss disability was manifested at worst by an average pure tone decibel loss in the of 21 in the right ear with 94 percent speech discrimination, and of 26 in the left ear with 94 percent speech discrimination.

10.  During the appeal period, GERD with hiatal hernia was not manifested by dysphagia, or substernal or arm/shoulder pain, and was not productive of "considerable impairment of health."

11.  During the appeal period, status post right inguinal hernia repair was not manifested by a recurrent hernia.

12.  During the appeal period, hammer toe of the right foot 5th toe with bunion was not shown.

13.  During the appeal period, hammer toe of the left foot 5th toe with bunion was not shown.

14.  During the appeal period, RLE radiculopathy was not more nearly manifested by moderate incomplete paralysis of the sciatic nerve (or any other nerve).

15.  Moderate impairment of the right foot due to plantar fasciitis is not shown prior to or from November 1, 2013; the 10 percent evaluation for service-connected plantar fasciitis-in effect less than 5 years-was reduced based on reexamination of the disability in September 2011 that disclosed improvement in accordance with applicable procedures.

16.  Moderate impairment of the left foot due to plantar fasciitis is not shown prior to or from November 1, 2013; the 10 percent evaluation for service-connected plantar fasciitis-in effect less than 5 years-was reduced based on reexamination of the disability in September 2011 that disclosed improvement in accordance with applicable procedures.



CONCLUSIONS OF LAW

1.  New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral glaucoma.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for sleep apnea.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

4.  New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

5.  New and material evidence has not been received to reopen the claim of entitlement to service connection for LLE radiculopathy.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

6.  The criteria for a compensable evaluation for skin disorders, dermatitis and herpes simplex, are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7805 (2017).

7.  The criteria for a compensable evaluation for scar, residual of right inguinal hernia repair, are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7805 (2017).

8.  There is no legal basis for the assignment of either a higher single evaluation for tinnitus or separate 10 percent disability ratings for the tinnitus of each ear.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).
9.  The criteria for a compensable evaluation for bilateral hearing loss disability are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII, Diagnostic Code 6100 (2017).

10.  The criteria for an evaluation in excess of 10 percent for GERD with hiatal hernia are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017).

11.  The criteria for an evaluation in excess of 10 percent for status post right inguinal hernia repair are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7338 (2017).

12.  The criteria for a disability evaluation in excess of 10 percent for hammer toe of the right foot 5th toe with bunion are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5282-5280 (2017).

13.  The criteria for a disability evaluation in excess of 10 percent for hammer toe of left foot 5th toe with bunion are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5282-5280 (2017).

14.  The criteria for a disability evaluation in excess of 10 percent for RLE radiculopathy are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8799-8720 (2017).

15.  The criteria for a compensable evaluation prior to November 1, 2013, and an evaluation in excess of 10 percent therefrom for plantar fasciitis of the right foot to include restoration of a 10 percent evaluation for plantar fasciitis prior to November 1, 2013, are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.71a, Diagnostic Code 5299-5284 (2017).

16.  The criteria for a compensable evaluation prior to November 1, 2013, and an evaluation in excess of 10 percent therefrom for plantar fasciitis of the left foot to include restoration of a 10 percent evaluation for plantar fasciitis prior to November 1, 2013, are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.71a, Diagnostic Code 5299-5284 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Neither the Veteran, nor his attorney, has alleged prejudice or any issues with the duty to notify or the duty to assist.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Previously Denied Claims

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The 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."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).

A.  Bilateral Glaucoma 

In a February 2007 rating decision, the RO denied service connection for bilateral open angle glaucoma because no disease of the eye was shown in service and glaucoma, diagnosed in August 2005, was not linked to service.  VA notified the Veteran of this decision in a March 2007 letter.  The Veteran requested reconsideration of that decision and, in a May 2008 rating decision, the RO again denied the claim.  The RO denied the claim because glaucoma was not diagnosed in service or within the initial post separation year, noting that "Glaucoma suspect" shown in a June 2000 service treatment record is not a definitive diagnosis for glaucoma; and the RO further denied the claim because glaucoma, diagnosed post-service, was not linked to service.  VA notified the Veteran of this decision in a June 2008 letter.  VA received no appeal and that decision became final.

In June 2011, VA received a claim to reopen the previously denied claim.  See VA Form 21-526 (June 2011).  In a November 2011 rating decision, the RO denied the claim because new and material evidence had not been submitted.  VA notified the Veteran of this decision in November 2011 letter.  VA received a notice of disagreement with that decision in January 2012.  See NOD (January 2012).  In September 2013, the RO again denied the claim because new and material evidence had not been submitted.  VA notified the Veteran in a September 2013 letter.  In March 2014, the RO issued a Statement of the Case and VA received the Veteran's substantive appeal in June 2014.  This appeal arises from the November 2011 adverse determination.

Having carefully reviewed the record, the Board finds that the evidence received since the May 2008 rating decision includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim.  The evidence consists of VA treatment records and examination reports, private medical records, and medical records associated with his Social Security Administration (SSA) disability claim along with correspondence from the Veteran and his attorney.  The recent evidentiary submissions, lay and medical, do not cure any prior evidentiary defect.  The medical evidence does not link the claimed bilateral eye condition to service, and does not tend to show that right or left eye disorders, claimed as glaucoma, are attributable to service-incurred in or aggravated by service, or secondary to service-connected disability.  To the extent that the Veteran is asserting that his disability is attributable to service, this contention was previously of record and considered at the time of the prior denial.  Thus, this information is merely cumulative of information previously of record.  The evidence is not new and essentially duplicative of evidence previously before VA decision makers at the time of the last final adjudication.  The Veteran has not identified any specific piece of evidence that he believes satisfies the requirement for new and material evidence to reopen the matter.

Therefore, new and material evidence to reopen the previously disallowed claim for bilateral glaucoma has not been submitted.  Accordingly, the petition to reopen is denied.

B.  Sleep Apnea 

In a May 2008 rating decision, the RO denied service connection for sleep apnea  because it was not incurred in service or otherwise attributable to service, noting that VA treatment records show its onset in April 2007 per polysomnography.  VA notified the Veteran of this decision in a June 2008 letter.  VA received no appeal and that decision became final.
In June 2011, VA received a claim for service connection for sleep apnea.  See VA Form 21-526b (June 2011).  In June 2011, the RO notified the Veteran of the requirement for new and material evidence to reopen the previously denied claim.  In a November 2011 rating decision, the RO denied the claim because new and material evidence had not been submitted, noting that the VA treatment records showing sleep apnea do not link the disorder to service.  VA notified the Veteran of this decision in a November 2011 letter.  VA received a notice of disagreement with that decision in January 2012.  See NOD (January 2012).  In March 2014, the RO issued a Statement of the Case and VA received the Veteran's substantive appeal in June 2014.  This appeal arises from the November 2011 adverse determination.

Having carefully reviewed the record, the Board finds that the evidence received since the May 2008 rating decision includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim.  The evidence consists of VA treatment records and examination reports, private medical records, and medical records associated with his Social Security Administration (SSA) disability claim along with correspondence from the Veteran and his attorney.  The recent evidentiary submissions, lay and medical, do not cure any prior evidentiary defect.  The medical evidence does not link sleep apnea to service.  To the extent that the Veteran is asserting that his disability is attributable to service, this contention was previously of record and considered at the time of the prior denial.  Thus, this information is merely cumulative of information previously of record.  The evidence is not new and essentially duplicative of evidence previously before VA decision makers at the time of the last final adjudication.  The Veteran has not identified any specific piece of evidence that he believes satisfies the requirement for new and material evidence to reopen the matter.

Therefore, new and material evidence to reopen the previously disallowed claim for sleep apnea has not been submitted.  Accordingly, the petition to reopen is denied.

C.  Acquired Psychiatric Disorder including PTSD

In a June 2006 rating decision, the RO denied service connection for an acquired psychiatric disorder because the evidence showed no psychiatric disability in service and the record showed no evidence of any diagnosed mental disorder.  VA notified the Veteran of this decision in a June 2006 letter.  In a February 2007 rating decision, the RO denied service connection for an acquired psychiatric disorder to include anxiety and depression because the evidence showed no diagnosis for any mental disorder.  VA notified the Veteran of this decision in March 2007 letter.

In November 2007 correspondence, VA received a claim of entitlement to service connection for PTSD.  See VA Form 21-4138 (November 2007).  In support of this claim, the Veteran submitted an annotated VA treatment record, which made no mention of PTSD; he wrote that that he had PTSD related to a soldier's death and indicated a casualty list.  He also submitted copies of VA treatment records dated in 2005 showing he was seen by VA psychiatry and diagnosed with insomnia; he reported occasional nightmares and noted that was in Korea in 1992.  See Medical Treatment Record - Government Facility (November 2007).

In a May 2008 rating decision, the RO denied service connection for PTSD because the evidence showed no diagnosis for PTSD attributable any verified stressor; it was noted that the Veteran had not provided information with sufficient detail to request verification of any stressor from the Joint Services Records Research Center (JSRRC).  The RO considered the Veteran's service treatment records (STRs), military personnel records, VA treatment and examination records, and private medical records, along with lay statements from the Veteran.  VA notified the Veteran of this decision in June 2008 letter.  VA received no appeal and that decision became final.

In June 2011, VA received a claim for service connection for an acquired psychiatric disorder claims as depression and PTSD.  See VA Form 21-526b (June 2011).  In a November 2011 rating decision, the RO determined that new and material evidence had been submitted to reopen the claim for PTSD based on VA treatment records showing that the Veteran had a positive PTSD screen; then the RO denied the claim on a de novo basis because a verified stressor was not shown.  VA notified the Veteran of this decision in a November 2011 letter.  VA received a notice of disagreement with that decision in January 2012.  See NOD (January 2012).  In March 2014, the RO issued a Statement of the Case and VA received the Veteran's substantive appeal in June 2014.  This appeal arises from the November 2011 adverse determination.

Having carefully reviewed the record, the Board finds that the evidence received since the May 2008 rating decision includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.  Specifically, a September 2011 statement from Dr. S.F. suggests that the Veteran has a psychiatric disability related to events that occurred during active duty and that the medical evidence suggested the presence of PTSD.  This evidence cures a prior evidentiary defect.  Therefore, new and material evidence to reopen the previously disallowed claim for an acquired psychiatric disorder has been submitted.  Accordingly, the petition to reopen is granted.

D.  Hypertension

In a February 2007 rating decision, the RO denied service connection for hypertension because it was not incurred in service or otherwise attributable to service.  VA notified the Veteran of this decision in a March 2007 letter.  In a May 2008 rating decision, the RO denied service connection for hypertension because new and material evidence had not been submitted to reopen the matter.  VA notified the Veteran of this decision in a June 2008 letter.  VA received no appeal and that decision became final.

In June 2013, the Veteran reported to VA that he had hypertension secondary to high cholesterol in service.  See VA Form 21-0820 (June 2013).  In February 2015, VA received a claim for hypertension.  See VA Form 21-4138 (February 2015).  In an April 2015 rating decision, the RO denied service connection for hypertension because new and material evidence had not been submitted to reopen the matter.  This appeal arises from the June 2013 adverse determination.

Having carefully reviewed the record, the Board finds that the evidence received since the May 2008 rating decision includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.  Specifically, a July 2011 statement from Dr. S.F. reflects that the Veteran had hypertension in service.  See Third Party Correspondence (July 2011).  This evidence cures a prior evidentiary defect.  Therefore, new and material evidence to reopen the previously disallowed claim for hypertension has been submitted.  Accordingly, the petition to reopen is granted.

E.  Left Lower Extremity Radiculopathy

VA received a claim of entitlement to service connection for LLE radiculopathy in July 2004.  See VA Form 21-4138 (July 2004).  In a January 2005 rating decision, the RO denied the claim because the medical evidence showed no diagnosis for the claimed condition.  It was noted that February 2004 VA examination showed normal sensory exam of the left lower extremity and that an August 2004 VA neurology report showed normal motor strength in the left lower extremity.  VA notified the Veteran of this decision in a January 2005 letter.  VA received no appeal and that decision became final.

In a May 2008 rating decision, the RO denied a claim of entitlement to service connection for neuropathy of the LLE because the medical evidence showed no diagnosis for the claimed condition.  VA notified the Veteran of this decision in a June 2008 letter.  VA received no appeal and that decision became final.

In a September 2010 rating decision, the RO denied a claim of entitlement to service connection for LLE radiculopathy as secondary to service-connected right lower extremity (RLE) radiculopathy because the medical evidence showed no diagnosis for LLE radiculopathy.  VA notified the Veteran of this decision in a September 2010 letter.  VA received a notice of disagreement in October 2010; the Veteran argued that that he had complaints in service that suggested he had the claimed disorder.  See VA Form 21-4138 (October 2010).  A March 2014 Statement of the Case noted that the claim for LLE radiculopathy was considered reopened, but denied on a de novo basis after review of all the evidence of record because the medical evidence failed to the existence of LLE radiculopathy.  In June 2014, VA received a substantive appeal in this matter.  This appeal arises from the September 2010 adverse determination.

Having carefully reviewed the record, the Board finds that the evidence received since the prior final rating decision includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim.  The evidence consists of VA treatment records and examination reports, private medical records, and medical records associated with his SSA disability claim along with correspondence from the Veteran and his attorney.  The recent evidentiary submissions, lay and medical, do not cure any prior evidentiary defect.  The medical evidence does establish that the Veteran has had the claimed disability at any time during the appeal.  To the extent that the Veteran asserts that he has the claimed disability, this contention was previously of record and considered at the time of the prior denial.  Thus, this information is merely cumulative of information previously of record.  The evidence is not new and essentially duplicative of evidence previously before VA decision makers at the time of the last final adjudication.  The Veteran has not identified any specific piece of evidence that he believes satisfies the requirement for new and material evidence to reopen the matter.

The Board acknowledges that the Veteran raised a new etiological theory to reopen his claim.  However, a new etiological theory does not constitute a new claim.  Velez v. Shinseki, 23 Vet. App. 1999 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet App 307 (2006).  While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108.  Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008).  In this case, no such evidence has been presented.

Therefore, new and material evidence to reopen the previously disallowed claim for LLE radiculopathy has not been submitted.  Accordingly, the petition to reopen is denied.

III.  Evaluations

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional Diagnostic Code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

A.  Scar, Residual of Inguinal Hernia Repair

In a January 2004 rating decision, the RO granted service connection for status post right inguinal hernia repair at zero percent under Diagnostic Code 7338 (Hernia, inguinal).  A VA received a claim for increase in April 2011.  See VA Form 21-4138 (April 2011).  In June 2013, the Veteran reported that he had painful scars associated with his inguinal hernia surgery.  A rating decision codesheet dated in August 2013 reflects that the RO rated a scar associated with right inguinal hernia repair at zero percent from August 1, 2003, under Diagnostic Code 7805.
The schedular criteria for evaluating scars are set out at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a compensable evaluation for scar.  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation.  38 C.F.R. § 4.7, 4.118, Diagnostic Codes 7800-7805.  Report of VA examination dated in March 2012 reflects a surgical scar located on the anterior trunk that measures 0.7 cm. and described as superficial and linear.  It was neither painful nor unstable.  The Veteran indicated that he had "every now and then" a feeling of "some discomfort" of the right groin scar area.  He denied both painful and unstable scar.  The examiner noted that the scar did not impair either physical or sedentary type work.  The evidence shows that the Veteran does not have a painful or unstable scar; there is no visible or palpable tissue loss; the scar measures less than 77 square cm; and there is no functional limitation associated with scar.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  As such, the criteria for increase are not more nearly met.

The Board accepts that the Veteran is competent to report that his disability is worse.  Layno, supra.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  Although the Veteran may believe that he meets the criteria for a compensable disability rating, his complaints along with the medical findings do not meet the schedular requirements for a compensable evaluation.

Accordingly, the claim for increase is denied.  Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  As the evidence of record is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3, Gilbert v. Derwinski, 1 Vet. App. 49, 53 53 (1990).

B.  Skin Disorder - Atopic Dermatitis and Herpes Simplex

The Veteran seeks a compensable evaluation for skin disorder.  In a January 2004 rating decision, the RO granted service connection for atopic dermatitis at the noncompensable level under Diagnostic Code 7899-7806.  In a May 2008 rating decision, the RO granted service connection for herpes simplex (lower lip) at the noncompensable level under Diagnostic Code 7899-7820.  The dermatological disorders are rated under Diagnostic Code 7820-7806.  See Rating Decision - Codesheet (April 2015).  VA received a claim for increase in April 2011.  See VA Form 21-4138 (April 2011).

Diagnostic Code 7820 provides that infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Codes 7806), depending upon the predominant disability.  38 C.F.R. § 4.118, Diagnostic Code 7820.

Diagnostic Code 7806 (Dermatitis or eczema) provides a noncompensable rating for skin involvement with less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period.  A 10 percent rating is warranted when there is skin involvement with at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected; or, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period.  A 30 percent rating is warranted when there is skin involvement with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is warranted when there is skin involvement with more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.

Not all forms of corticosteroid treatment constitute "systemic therapy" under the applicable legislation.  See Johnson v. Shulkin, 862 F.3d 1351 (2017), reversing Johnson v. McDonald, 27 Vet. App. 497 (2016), (The Federal Circuit held that the use of topical corticosteroids did not automatically mean systemic therapy because Diagnostic Code 7806 distinguished between systemic and topical therapy, and that the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case).

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial compensable evaluation for atopic dermatitis and herpes simplex (lower lip).  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation.  38 C.F.R. § 4.7.  During the appeal period, the dermatological disorders covered less than 5 percent of the entire body and less than 5 percent of exposed areas are affected; also the skin disorders have not been treated with systemic therapy during this appeal.

Neither report of VA examination dated in September 2011 nor in March 2012 reflect that the Veteran's skin disorders involved at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected.  Both the September 2011 and March 2012 VA examination reports show that the Veteran was diagnosed with dermatitis and treated with constant/near-constant topical medications (other than topical corticosteroids).  The March 2012 VA examination report reflects that his condition involved less than 5 percent of total body area and less than 5 percent of exposed body area.

The medical evidence of record shows no treatment with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period.  It is noted that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied."  See Johnson v. Shulkin, 862 F.3d 1351 (2017), reversing Johnson v. McDonald, 27 Vet. App. 497 (2016).

The Board has considered whether a higher evaluation is available under any other potentially applicable schedular provision.  However, neither the Veteran's complaints nor medical findings more nearly reflect the criteria for a higher evaluation on any other basis.  38 C.F.R. § 4.118, Diagnostic Codes 7800-7833.

The Board accepts that the Veteran is competent to report his symptoms.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  Although the Veteran may believe that he meets the criteria for a higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation.

Accordingly, because the weight of the evidence is against the claim, it is denied.  The Board finds that a staged disability rating is not warranted as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a higher rating from that assigned.  See Hart, supra.  As the evidence is not in equipoise, there is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

C.  Tinnitus

The Veteran seeks an evaluation in excess of 10 percent for tinnitus.  In a June 2004 rating decision, the RO granted service connection for tinnitus and assigned the maximum schedular evaluation (10 percent) for this disability under Diagnostic Code 6260.  VA received a claim for increase in April 2011.  See VA Form 21-4138 (April 2011).  However, Diagnostic Code 6260 provides a maximum 10 percent evaluation for tinnitus (whether unilateral or bilateral). 38 C.F.R. § 4.87, Diagnostic Code 6260.

In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court of Appeals for Veterans Claims held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single disability evaluation for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted.

Here, the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for that disability.  38 C.F.R. § 4.87, Diagnostic Code 6260.  As there is no legal basis upon which to award an evaluation in excess of 10 percent or separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

D.  Hearing Loss Disability

The Veteran seeks a compensable evaluation for hearing loss disability.  In a June 2004 rating decision, the RO granted service connection for hearing loss and assigned a zero percent rating under Diagnostic Code 6100.  VA received a claim for increase in April 2011.  See VA Form 21-4138 (April 2011).

To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d).  Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.85.

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86.  Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz ), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against a compensable schedular evaluation for bilateral hearing loss disability.  The evidence of record does not more nearly reflect the criteria for a compensable evaluation.  38 C.F.R. §§ 4.7, 38 C.F.R. § 4.86.

On the authorized VA audiological examination in September 2011, the average pure tone decibel loss was 21 in the right ear with 94 percent speech discrimination, and 26 in the left ear with 94 percent speech discrimination.  Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran has a numeric designation of I for his right ear and I for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 0 percent disability evaluation for the bilateral hearing loss is warranted.  Also, the pure tone thresholds of record do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable.  Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented pure tone thresholds for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz; thus, neither Table VI or Table VIa is applicable.  38 C.F.R. § 4.86(b).

The Board has considered the effect of the Veteran's hearing loss on his ability to function in the work-place.  Friscia v. Brown, 7 Vet. App. 294 (1995); Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The record shows that the Veteran has not worked since his stroke in 2011, and that the Veteran reported difficulty understanding conversations, which often required him to have other repeat things.  However, the examiner noted that objective findings shown excellent speech discrimination.  See VA Exam (September 2011).

The Board accepts that the Veteran believes his hearing acuity is worse than evaluated.  However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel reading to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann, supra.

Accordingly, the claim for a compensable evaluation for bilateral hearing loss disability is denied.  The evidence is not in equipoise and, thus, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107(b); Gilbert, supra.  Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

E.  GERD with Hiatal Hernia

In a January 2004 rating decision, the RO granted service connection for GERD and assigned an initial rating of 10 percent, effective August 1, 2003, under Diagnostic Code 7346.  In April 2011, the Veteran suggested that his disability has worsened.  See VA Form 21-4138 (April 2011).

GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia under Diagnostic Code 7346.  See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous).  Diagnostic Code 7346 provides a 60 percent rating for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health; a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity.  38 C.F.R. § 4.114, Diagnostic Code 7346.  The criteria for a 30 percent evaluation are conjunctive in part as indicated by the use of the word "and."  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for GERD with hiatal hernia.  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation.  38 C.F.R. § 4.7.  During the appeal period of this claim, there are no complaints or findings for dysphagia and regurgitation, accompanied by either substernal or arm/ shoulder pain, or that GERD with hiatal hernia caused "considerable impairment of health."

Report of VA examination dated in March 2012 reflects a diagnosis for GERD with hiatal hernia.  The Veteran complained that he continues to experience "burning chest," treated with Omeprazole daily.  He further reported "puff of air is related to his GERD condition."  Sign and symptoms included infrequent episodes of epigastric distress and pyrosis (heartburn).  There was no indication of persistently recurrent epigastric distress; dysphagia; reflux; regurgitation; substernal arm/shoulder pain; sleep disturbance, weight loss; nausea/vomiting; or hematemesis/melena.  VA treatment records during the appeal period show no indication that the Veteran had symptoms of dysphagia or regurgitation, or substernal or arm/shoulder pain associated with GERD/hiatal hernia, or that GERD caused "considerable impairment of health."

While the Board accepts that the Veteran is competent to report that his symptoms, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation in excess of 10 percent.

The Board has considered whether a higher or separate disability evaluation is available under any other potentially applicable provision of the rating schedule.  However, a higher evaluation is not warranted based on any other provision of the rating schedule as there is no symptomatology or pathology that meets any other criteria set out for the digestive system.  See generally 38 C.F.R. § 4.114.

Accordingly, the claim is denied.  There is no basis for a staged rating.  See Hart, supra.  Because the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

F.  Status Post Inguinal Hernia Repair

In the January 2004 rating decision, the RO granted service connection for status post inguinal right hernia repair and assigned an initial noncompensable rating, effective August 1, 2003, under Diagnostic Code 7338.  In April 2011, the Veteran suggested that his disability has worsened.  See VA Form 21-4138 (April 2011).

Under Diagnostic Code 7338, a noncompensable evaluation is assigned for an inguinal hernia that is not operated, but remediable or that is small, reducible, or without the hernia protrusion; a 10 percent evaluation is assigned for a post-operative recurrent inguinal hernia that is readily reducible and well supported by truss or belt; a 30 percent evaluation is assigned for an inguinal hernia that is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible; a 60 percent evaluation is assigned for a large, postoperative recurrent inguinal hernia that is not well supported under ordinary conditions, and not readily reducible, when considered inoperable.  38 C.F.R. § 4.114, Diagnostic Code 7338.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for increase.  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation.  38 C.F.R. § 4.7.  During the appeal period, status post right inguinal hernia repair was not manifested by a post-operative recurrent inguinal hernia.  Report of VA hernia examination dated in March 2012 reflects that the Veteran underwent right inguinal hernia repair surgery in 2003.  Exam showed no current hernia.  VA treatment records during the appeal period show no indication that the Veteran had a post-operative recurrent inguinal hernia.

Although the Veteran believes he meets the criteria for a higher disability rating, he has reported no complaints that support a higher disability rating and the medical findings similarly do not meet the schedular requirements for a compensable evaluation.  The Board has considered whether a higher or separate disability evaluation is available under any other potentially applicable provision of the rating schedule.  However, a higher evaluation is not warranted based on any other provision of the rating schedule as there is no symptomatology or pathology that meets any other criteria set out for the digestive system.  See generally 38 C.F.R. § 4.114.

Accordingly, the claim is denied.  There is no basis for a staged rating.  See Hart, supra.  As the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

G.  Bilateral Hammer Toe with Bunion 5th Toe

In the January 2004 rating decision, the RO granted service connection for bilateral foot hammer toe, 5th toe, and assigned an initial noncompensable percent rating for each foot, effective August 1, 2003, under Diagnostic Code 5282.  In a January 2005 rating decision, the RO assigned a 10 percent evaluation for each foot effective September 1, 2004, for bilateral hammer toe, 5th toe, with bunion of the 5th joint under Diagnostic Code 5282-5280.  In April 2011, the Veteran suggested that his toe disabilities had worsened.  See VA Form 21-4138 (April 2011).

Under Diagnostic Code 5282, hammertoes are assigned a noncompensable rating for single toes and a 10 percent rating for all toes, unilateral without claw foot.  Under Diagnostic Code 5280 (hallux valgus), a 10 percent evaluation is assigned where the condition has had an operation with resection of the metatarsal head or where "severe, if equivalent to amputation of great toe."  The Board notes that these Diagnostic Codes do not specifically rate the hammer toe with bunion disabilities based on limitation of motion.  Therefore, remand for a new VA examination for pain testing on both active and passive motion, in weight-bearing and non-weight-bearing, is not warranted.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claims for increase for bilateral hammer toes with bunions.  The Veteran is rated at the maximum schedular level for each foot based on hammer toe with bunion.  38 C.F.R. § 4.71a, Diagnostic Code 5282-5280.  Report of VA foot examination dated in September 2011 reflects that the Veteran has no foot condition, including hammer toe.  The examiner remarked that "There is no intrinsic foot problem.  Since his stroke in March 2011, he has developed weakness and instability because of hemiplegia."  VA treatment records reflect no hammer toe or bunion complaints, or treatment including visits to the podiatry clinic.

The Board has considered whether a higher or separate disability evaluation is available under any other potentially applicable provision of the rating schedule. However, absent findings for pes planus, pes cavus, weak foot (atrophy of the musculature, disturbed circulation, or foot weakness), or metatarsalgia (Morton's disease), the Board finds that a higher or separate disability evaluation is not warranted based on another basis.  38 C.F.R. § 4.71a, Diagnostic Codes 5277-5284.  Also, there is no evidence of loss of use of a foot such that the Veteran would be better served by amputation and prosthesis.  38 C.F.R. §§ 4.63, 4.71a.

The Board accepts that the Veteran is competent to report on his observable symptomatology.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  Although the Veteran may believe that he meets the criteria for a higher disability rating for each foot, his complaints along with the medical findings do not meet the schedular requirements for higher or separate evaluations, as explained and discussed above.

Accordingly, the claims for increase for hammer toe with bunion, bilateral, are denied.  There is no basis for a staged rating.  See Hart, supra.  As the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

H.  RLE Radiculopathy

In the January 2004 rating decision, the RO granted service connection for RLE radiculopathy and assigned an initial rating of 10 percent, effective August 1, 2003, under Diagnostic Code 8799-8720.  In April 2011, the Veteran suggested that his RLE disability has worsened.  See VA Form 21-4138 (April 2011).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123.  The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis.  38 C.F.R. § 4.124.

Under Diagnostic Code 8520, paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy.  An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

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

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for increase for RLE radiculopathy.  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation.  38 C.F.R. § 4.7.  RLE radiculopathy is not more nearly manifested by moderate incomplete paralysis of the sciatic nerve (or any other nerve) at any time during this appeal.

Report of VA examination dated in March 2012 reflects complaints of back with pain "sometimes" to RLE with numbness after standing, but relieved with "walking a few steps or changing positions."  The Veteran also reported that his leg "gets numb when laying down."  The examiner noted that the medical records show that the Veteran has right hemiparesis related to a March 2011 stroke.  Objectively, radiculopathy was not shown.  Also, straight leg raises were negative and sensory exam of the RLE was normal.  An April 2016 VA treatment note showed a past medical history of prior CVA with "subtle yet persistent" right sided-weakness.  There was no indication that the Veteran had RLE radiculopathy of the sciatic nerve.  The medical evidence does not support the claim for increase for RLE radiculopathy given that radiculopathy was not found on the VA examination in March 2012 and that VA treatment records during the appeal period do not show active symptoms of RLE radiculopathy.

Also, the Board finds that a higher disability evaluation is not warranted under any other potentially applicable provision of the rating schedule, and a higher rating is not available by changing the Diagnostic Code assigned for sciatic nerve involvement.  See 38 C.F.R. § 4.124a.  A separate rating based on uncompensated joint or muscle is not warranted.  The record shows that musculoskeletal impairment of the spine is separately compensated; and there is no evidence of any muscles affected by the RLE nerve impairment.  See 38 C.F.R. §§ 4.71a, 4.73.

The Board accepts that the Veteran is competent to report his symptoms.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  Although the Veteran may believe that he meets the criteria for a higher disability rating, there is no indication that his RLE complaints as reported during his 2012 VA examination are attributable to RLE radiculopathy as the medical findings at that time show no objective evidence of radiculopathy.

Accordingly, the claim is denied.  There is no basis for a staged rating.  See Hart, supra.  As the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.

IV.  Evaluations - Including Reductions of Evaluations for Plantar Fasciitis

The Veteran seeks a compensable evaluation prior to November 1, 2013, and an evaluation in excess of 10 percent therefrom for plantar fasciitis of the each foot to include restoration of a 10 percent evaluation for plantar fasciitis prior to November 1, 2013.


A.  Procedural Considerations to Ensure Due Process in Evaluation Reductions

Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105(e).

In this case, as a threshold matter, the Board finds that VA provided the required notice, gave the Veteran an appropriate period of time for response, and effectuated the reduction in accordance with applicable laws.

The record shows that, in a January 2004 rating decision, the RO granted service connection for plantar fasciitis of each foot and assigned an initial rating of 0 percent, effective August 1, 2003, under Diagnostic Code 5299-5284.  In April 2011, the Veteran suggested that his RLE disability has worsened.  See VA Form 21-4138 (April 2011).  In a September 2010 rating decision, the RO granted a 10 percent rating for each foot, effective from June 11, 2010.  The 10 percent evaluation was assigned based on the Veteran's complaints and medical findings from report of VA examination dated in July 2010.

In April 2011, the Veteran suggested that his bilateral plantar fasciitis disability has worsened.  See VA Form 21-4138 (April 2011).  Based on the Veteran's complaints and medical findings from report of VA examination dated in September 2011, the RO proposed to reduce the Veteran's disability evaluation for plantar fasciitis of each foot from 10 percent to 0 percent.  See Rating Decision (November 2011).  The RO notified the Veteran of this proposed action in a November 2011 letter.  See Notification Letter (November 2011).  In an August 2013 rating decision, the RO assigned a 0 percent evaluation, as proposed, effective November 1, 2013.  The RO notified the Veteran of this reduction in a September 2013 letter and his right to appeal the determination.  See Notification Letter (September 2013).  In October 2013, VA received the Veteran's Notice of Disagreement with the disability evaluation reduction for bilateral plantar fasciitis.  See NOD (October 2013).  In November 2013 rating decision, the RO denied a compensable evaluation for plantar fasciitis of each foot.  In December 2013, VA received the Veteran's Notice of Disagreement with that determination.  See NOD (December 2013).  The RO issued a Statement of the Case in March 2014 and the VA received the Veteran's substantive appeal in June 2014.  The matter before the Board arises from August 2013 and November 2013 rating decisions.

The procedural history of the claim reflects that the RO complied with the procedures required under 38 C.F.R. § 3.105(e).  Neither the Veteran nor his attorney has asserted a failure by VA to comply with 38 C.F.R. § 3.105(e).

B.  Legal Considerations in Rating Reduction Cases

The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted.  The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  38 C.F.R. § 3.344(c).

Where an evaluation has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344 (a) and (b).  In the present case, the Veteran's 10 percent disability evaluation for plantar fasciitis of each foot was awarded effective June 11, 2010, and was reduced effective November 1, 2013, less than 5 years later.  See Brown v. Brown, 5 Vet. App. 413, 418 (1993).  Accordingly, the requirements under 38 C.F.R. § 3.344 (a) and (b) do not apply in the instant case; but rather, 38 C.F.R. § 3.344(c) applies in this matter, which provides that evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating.  See 38 C.F.R. § 3.344(c).

Having carefully reviewed the evidence of record, the Board finds that restoration of the 10 percent disability evaluation for plantar fasciitis of each foot, effective prior to November 1, 2013, is not warranted.  The Veteran has not offered any particular argument in support of restoration of a 10 percent disability evaluation for each foot based on plantar fasciitis.  The Veteran's plantar fasciitis is evaluated under Diagnostic Code 5299-5284, which provides a 10 percent evaluation for moderate foot injury.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  However, in this case, report of VA examination dated in September 2011 reflects that there are no symptoms, signs, or findings for plantar fasciitis of either foot.  The examiner stated that "There is no intrinsic foot problem.  Since his stroke March 2011, he has developed weakness and instability because of hemiplegia."  Also, VA treatment records for the relevant period of time show no complaints, findings, or treatment for plantar fasciitis of either foot.  See CAPRI (May 2017).  Accordingly, the claims for restoration are denied.

C.  Evaluation - Claim for Increase

VA's Rating Schedule provides no Diagnostic Code specifically for plantar fasciitis.  Therefore, plantar fasciitis is rated by analogy (as indicated by the designation 5299-5284), under Diagnostic Code 5284 which pertains to "other injuries of the foot."  See 38 C.F.R. §§ 4.20, 4.27.  Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate injuries of the foot; a 20 percent rating is assigned for moderately severe injuries of the foot; and a 30 percent rating is assigned for severe injuries of the foot.  See 38 C.F.R. § 4.71a, Diagnostic Code 5284.

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent prior to November 1, 2013, and a compensable evaluation therefrom for plantar fasciitis of the right and left foot.  Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation prior to or from November 1, 2013.  38 C.F.R. § 4.7.  In this regard, the Board finds that moderate plantar fasciitis of the right foot due to plantar fasciitis is not shown prior to or from November 1, 2013.

Report of VA examination dated in July 2010 reflects complaints of pain with standing or walking; stiffness with standing, walking or at rest; and fatigability with standing and walking.  Pain was located on the plantar aspect of the foot.  The Veteran used orthotic inserts with fair results.  Objectively, there as tenderness to palpation along the entire plantar fascia from the heel to the metatarsal heads of the plantar aspect of each foot.  However, there was no evidence of painful motion, instability, weakness, or other abnormal weight bearing on the right or left side.  Examination was negative for hammer toes, hallux valgus and rigidus, pes cavus, malunion/nonunion of the tarsal or metatarsal bones flat feet, and muscle atrophy.  Gait was normal.  The functional impact of the disorder was limited to "mild" effect on exercise and sports, and no other impact on activities was found.  It was noted that the Veteran worked as a human resource manager and the Veteran reported no lost time from work due to plantar fasciitis.

Report of VA examination dated in September 2011 reflects the Veteran underwent evaluation for plantar fasciitis.  However, the examiner found no signs, symptoms, or findings to support a diagnosis of plantar fasciitis of either foot.  He remarked that "There is no intrinsic foot problem.  Since his stroke March 2011, he has developed weakness and instability because of hemiplegia."  VA treatment record for the appeal period reflects no complaints, findings or treatment for plantar fasciitis of either foot.

Neither the complaints nor the medical findings more nearly reflect the presence of moderate foot impairment.  As such, neither an evaluation in excess of 10 percent prior to November 1, 2013, nor a compensable evaluation therefrom is warranted.

The Board further finds that a higher or separate disability evaluation is not available under any other potentially applicable provision of the rating schedule.  38 C.F.R. § 4.71a, Diagnostic Codes 5276-83.  Neither the complaints nor the medical findings more nearly reflect pes planus, weak foot, pes cavus, metatarsalgia, hallux valgus or rigidus, hammer toe, or nonunion/malunion of metatarsal bones.  Lastly; there is no evidence of loss of use of a foot such that the Veteran would be better served by amputation and prosthesis.  38 C.F.R. §§ 4.63, 4.71a.

The Board accepts that the Veteran is competent to report his observable symptomatology.  However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Both the lay and medical evidence are probative in this case.  However, the Veteran has not asserted any specific basis for his belief that his foot disorders warrant higher evaluations.  Notwithstanding, although the Veteran may believe that his disabilities warrant higher evaluations, there is no higher schedular evaluation available to him under the Rating Schedule for either foot, as explained and discussed above. 

Accordingly, the claims for increase are denied.  There is no basis to further stage the ratings.  See Hart, supra.  As the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra.


ORDER

The petition to reopen the previously denied claim of entitlement to service connection bilateral glaucoma is denied.

The petition to reopen the previously denied claim of entitlement to service connection for sleep apnea is denied.

The petition to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD is granted.  The appeal is granted to that extent only.

The petition to reopen the previously denied claim of entitlement to service connection for hypertension is granted.  The appeal is granted to that extent only.

The petition to reopen the previously denied claim of entitlement to service connection for LLE radiculopathy is denied.

A compensable evaluation for scar is denied.

A compensable evaluation for atopic dermatitis and herpes simplex is denied.

An evaluation in excess of 10 percent for tinnitus is denied.

A compensable evaluation for bilateral hearing loss is denied.

An evaluation in excess of 10 percent for GERD with hiatal hernia is denied.

A compensable evaluation for status post right inguinal hernia repair is denied.

An evaluation in excess of 10 percent for hammer toe of right foot 5th toe with bunion is denied.

An evaluation in excess of 10 percent for hammer toe of left foot 5th toe with bunion is denied.

An evaluation in excess of 10 percent for RLE radiculopathy is denied.

An evaluation in excess of 10 percent prior to November 1, 2013, and a compensable evaluation therefrom for right foot plantar fasciitis, including restoration of a 10 percent evaluation from November 1, 2013, is denied.

An evaluation in excess of 10 percent prior to November 1, 2013, and a compensable evaluation therefrom for left foot plantar fasciitis, including restoration of a 10 percent evaluation from November 1, 2013, is denied.



REMAND

As explained below, the following matters require remand for further development to ensure that VA has satisfied its duty to assist the Veteran in these matters.  38 C.F.R. § 3.159(c).

1.  Service Connection for Psychiatric Disability, Hypertension, and CVA (Stroke)

The Board finds that the medical evidence of record is inadequate to decide the claim of entitlement to service connection for an acquired psychiatric disability to include PTSD.  A September 2011 letter from Dr. S.F. suggests that the Veteran has psychiatric disability "thought to be related to events in service."  There is no rationale of the medical opinion and the record does not contain a VA medical opinion that considers the September 2011 opinion submitted by the Veteran.

Likewise, the Board finds that the medical evidence of record is inadequate to decide the claims of entitlement to service connection for hypertension and CVA.  A July 2011 letter from Dr. S.F. suggests that the Veteran had hypertension and hyperlipidemia in service, which caused his March 2011 CVA.  There is no rationale of the medical opinion and the record does not contain a VA medical opinion that considers the July 2011 opinion submitted by the Veteran.  Additionally, in the alternative, the Veteran's attorney argues that hypertension is secondary to service-connected disability.  See Third Party Correspondence (June 2017).  However, there is no medical opinion of record addressing the theory of secondary service connection.

Therefore, in view of the above, remand is required.

2.  Evaluation of Anemia

In a January 2004 rating decision, the RO granted service connection for anemia and assigned a 10 percent evaluation under Diagnostic Code 7700.  In April 2011, the Veteran requested a higher evaluation for service-connected anemia.  See VA Form 21-4138 (April 2011).  Under Diagnostic Code 7700, a 0 percent rating is warranted for anemia when the hemoglobin level is 10gm/100ml or less and the condition is asymptomatic.  A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches.  A 30 percent rating is warranted for a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath.  38 C.F.R. § 4.117, Diagnostic Code 7700.

Report of VA hematologic examination dated in September 2011 reflects that the Veteran was diagnosed with macrocytic anemia with leukopenia in 1993.  The Veteran required no continuous medication for control of the condition.  While the condition was labelled active, the treatment plan was "watchful waiting."  The Veteran was noted to have anemia and thrombocytopenia.  Report of VA examination dated in March 2012 reflects a history of anemia.  The Veteran denied use of continuous medication, and noted that he had recently discontinued a B-12 vitamin supplement.  The examiner noted that his condition was in remission with no treatment and "watchful waiting."  Both the 2011 and 2012 VA examination reports show no findings, signs, or symptoms of weakness, easy fatigability, light-headedness, shortness of breath, headaches, dyspnea on mild exertion or at rest, tachycardia, syncope, cardiomegaly, or high output congestive heart failure.  Recurring infections due to anemia were not shown.

Notwithstanding, the Board observes that neither the 2011 nor the 2012 VA examination report clearly reflects whether lab results showed a hemoglobin level consistent with the criteria a higher evaluation.  Also, recent VA treatment records reflect findings for weakness and fatigue, but it is unclear whether this is attributable to anemia or other medical problems.  Therefore, the Board finds that remand is necessary for a new VA examination to ascertain the severity of service-connected anemia and the symptoms associated anemia.

3.  Evaluation of Knees and Lumbar Spine

In view of a recent decision of the Court of Appeals for Veterans Claims (Court), remand is necessary.  In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court held that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  In this case, the most recent report of VA examination does not reflect the necessary testing or findings.  Therefore, remand is necessary for a new VA examination of the knees and lumbar spine.

4.  Deferred Matters

Because the following claims be are inextricably intertwined with the outcome of the above claims, the Board defers consideration of the following claims:  Entitlement to TDIU; entitlement to SMC based on the need for the regular aid and attendance; entitlement to assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only; entitlement to a certificate of eligibility for assistance in acquiring a special home adaptation grant; and entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should obtain all pertinent updated treatment records and associate these with the claims file to the extent possible.  The RO should obtain all medical records of S. Finney, M.D., who indicates she is a contract physician with the Meharry VA Community Based Outpatient Clinic.  See Third Party Correspondence (July 2011).

2.  After the treatment records have been updated to the extent possible, the Veteran should be scheduled for VA psychiatric examinations to ascertain whether the Veteran has an acquired psychiatric disability to include PTSD attributable to service.  The claims file must be reviewed and the review noted in the report(s).  A complete medical history should be obtained to include the event(s) that he believes has/have caused his psychiatric problems.

(a)  With regard to the PTSD, the examiner should address the following:
(i)  Does the Veteran report an event or incident in service of the type to support a diagnosis for PTSD?
(ii)  Does the Veteran meet the criteria for a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125?
(iii)  If the Veteran meets the criteria for a diagnosis of PTSD, is it as likely as not (50 percent or greater probability) that the Veteran has PTSD related to a stressor-event incurred in service?
The examiner should address the Veteran's theory that the deaths of the mother and sister were stressor events in service causing his psychiatric problems.

(b)  With regard to psychiatric disability other than PTSD, the examiner should address the following: Does the Veteran have an acquired psychiatric disorder (other than PTSD) that is as likely as not (50 percent or greater probability) related to service?

For purposes of the opinion and exam, the Veteran's medical history should be accepted as truthful unless otherwise shown by the record.

A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).  If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

3.  After the treatment records have been updated, the Veteran should be scheduled for a VA examination by an appropriately trained physician in the field of cardiovascular medicine to ascertain the etiology of the Veteran's hypertension and March 2011 CVA (stroke).  The claims file must be reviewed and the review noted in the report.  A complete medical history should be obtained.  The examiner should address the following:

(a)  Is it as likely as not (50 percent or greater probability) that hypertension was first manifested in service or within the initial post separation year?

(b)  Is it as likely as not (50 percent or greater probability) that the Veteran's March 2011 CVA is proximately due to disease or injury incurred in service.
The physician should consider:  (i) the July and September 2011 medical opinions by Dr. S.F. linking CVA to hypertension and hyperlipidemia in service (Please, comment on whether you agree and, if not, why); and (ii) the May 6, 2003 report of medical history associated with the STRs, wherein the Veteran reported that his blood pressure goes up when taking physicals.

(c) Is it as likely as not (50 percent or greater probability) that either hypertension and/or the March 2011 CVA are either:
(i) Proximately due to service-connected disability; or 
(ii) Aggravated by service-connected disability.

"Aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

For purposes of the opinion and exam, the Veteran's medical history should be accepted as truthful unless otherwise shown by the record.

A complete rationale for the medical opinion is required. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).  If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

4.  After the treatment records have been updated, the Veteran should be scheduled for a VA examination to ascertain the severity of his service-connected anemia using the most recent Disability Benefits Questionnaire for hematological disorders.  The claims file must be reviewed and the review noted in the report.  All symptoms should be identified along with their frequency, duration, and severity.  All clinical findings should be reported in detail to include the functional impact.

All indicated studies should be performed.  The examiner should specifically indicate whether the hemoglobin level is:

(a) 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches; or 

(b) 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath; or 

(c) 7 gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months); or 

(d) 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling.

Also, the examiner should indicate whether the Veteran has pernicious anemia with complications, such as dementia or peripheral neuropathy.

5.  After the treatment records have been updated, the Veteran should be scheduled for a VA examination of the knees and lumbar spine to ascertain the severity of his service-connected disabilities using the most recent Disability Benefits Questionnaires.  The claims file must be reviewed and the review noted in the reports.  All symptoms should be identified along with their frequency, duration, and severity.  All clinical findings should be reported in detail to include the functional impact.  To the extent possible, the examiner should indicate the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for knees and lumbar spine.  If the examiner is unable to provide the information, he or she should clearly explain why that is so.

6.  After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims.  If the benefits sought are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran 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. §§ 5109B, 7112 (2012).








______________________________________________
G. A. WASIK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs