Citation Nr: 19106228
Decision Date: 01/28/19	Archive Date: 01/25/19

DOCKET NO. 15-18 623A
DATE:	January 28, 2019

ORDER

New and material evidence having been received, the claim for entitlement to service connection for a skin disability of the left upper extremity is reopened; to this extent only, the claim is granted.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for posttraumatic stress disorder (PTSD) with persistent depressive disorder is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for stress headaches is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for hypertension is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for valvular heart disease (mitral valve prolapse) is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for thoracolumbar strain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for iron deficiency anemia is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for allergic rhinitis is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for status post total hysterectomy secondary to uterine fibroids is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right shoulder sprain/strain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for left shoulder sprain/strain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for neck sprain and strain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right knee sprain/strain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for left knee sprain/strain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right ankle sprain is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right hallux valgus is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for left eye cortical cataract is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for acne is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for atrophic vaginitis is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for obstructive sleep apnea (OSA) with continuous positive airway pressure (CPAP) is denied.

Entitlement to an effective date prior to November 24, 2013 for the award of service connection for vertigo is denied.

Entitlement to restoration of service connection for fusion of right fourth finger distal interphalangeal joint is denied, as the severance of service connection for such disability was proper.

Entitlement to restoration of service connection for stress headaches is granted, as the severance of service connection for such disability was improper.

Entitlement to restoration of service connection for hypertension is granted, as the severance of service connection for such disability was improper.

Entitlement to restoration of service connection for valvular heart disease (mitral valve prolapse) is granted, as the severance of service connection for such disability was improper.

Entitlement to restoration of service connection for iron deficiency anemia is granted, as the severance of service connection for such disability was improper.

Entitlement to restoration of service connection for allergic rhinitis is granted, as the severance of service connection for such disability was improper.

Entitlement to restoration of service connection for right shoulder sprain/strain is granted, as the severance of service connection for such disability was improper.

Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for fusion of right fourth finger distal interphalangeal joint is denied.

Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for stress headaches is denied.

Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for hypertension is denied.

Entitlement to a 30 percent rating (from November 24, 2013 to June 1, 2017) for valvular heart disease (mitral valve prolapse) is denied.

Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for iron deficiency anemia is denied.

Entitlement to a compensable rating (from November 24, 2013 to September 1, 2017) for allergic rhinitis is denied.

Entitlement to an initial rating in excess of 30 percent for status post total hysterectomy secondary to uterine fibroids is denied.

Entitlement to additional special monthly compensation (SMC) based on loss of use of a creative organ (vagina) due to atrophic vaginitis is denied as a matter of law.

REMANDED

Entitlement to service connection for a skin disability of the left upper extremity is remanded.

Entitlement to service connection for sinusitis is remanded.

Entitlement to service connection for enlarged heart is remanded.

Entitlement to service connection for left hallux limitus is remanded.

Entitlement to service connection for recurring muscle spasms in the right calf is remanded.

Entitlement to service connection for recurring muscle spasms in the left calf is remanded.

Entitlement to service connection for body twitching is remanded.

Entitlement to service connection for facial twitching is remanded.

Entitlement to service connection for burning mouth syndrome (claimed as herpes) is remanded.

Entitlement to service connection for teeth sensitivity is remanded.

Entitlement to a compensable rating (from the date service connection was restored on June 1, 2017) for stress headaches is remanded.

Entitlement to a compensable rating (from the date service connection was restored on June 1, 2017) for hypertension is remanded.

Entitlement to a 30 percent rating (from the date service connection was restored on June 1, 2017) for valvular heart disease (mitral valve prolapse) is remanded.

Entitlement to a compensable rating (from the date service connection was restored on June 1, 2017) for iron deficiency anemia is remanded.

Entitlement to a compensable rating (from the date service connection was restored on September 1, 2017) for allergic rhinitis is remanded.

Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain is remanded.

Entitlement to a 10 percent rating for right shoulder sprain/strain is remanded.

Entitlement to an initial rating in excess of 20 percent for left shoulder sprain/strain is remanded.

Entitlement to an initial rating in excess of 10 percent for neck sprain and strain is remanded.

Entitlement to an initial rating in excess of 10 percent for right knee sprain/strain is remanded.

Entitlement to an initial rating in excess of 10 percent for left knee sprain/strain is remanded.

Entitlement to an initial rating in excess of 10 percent for right ankle sprain is remanded.

Entitlement to an initial compensable rating for right hallux valgus is remanded.

Entitlement to an initial compensable rating for left eye cortical cataract is remanded.

Entitlement to an initial compensable rating for acne is remanded.

Entitlement to an initial rating in excess of 10 percent for atrophic vaginitis is remanded.

Entitlement to an initial rating in excess of 50 percent for OSA with CPAP is remanded.

Entitlement to an initial compensable rating for vertigo is remanded.

Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome is remanded.

Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome is remanded.

Entitlement to an initial compensable rating for residual abdominal surgical scars is remanded.

REFERRED

Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a).  38 C.F.R. § 3.155(a).  When such a communication is received, VA shall notify the claimant and the claimant’s representative of the information necessary to complete the application form or form prescribed by the Secretary.  Id.

The Veteran has indicated a desire to reopen claims for service connection for bronchitis (on an April 2015 VA Form 21-0958), for dysmenorrhea (on an April 2015 VA Form 21-0958), for throat infections (on an April 2015 VA Form 21-0958), and for bilateral hearing loss (on an April 2015 VA Form 21-0958).  However, none of these communications meet the standards of a complete claim for benefits.

Because the Board does not have jurisdiction over these matters, they are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  38 C.F.R. § 19.9(b).

FINDINGS OF FACT

1. The Veteran’s claim for service connection for a skin disability of the left upper extremity was previously denied by a February 2010 rating decision; the Veteran did not appeal the decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period.

2. Additional evidence received since the February 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disability of the left upper extremity, and raises a reasonable possibility of substantiating the claim.

3. On May 25, 2006, the Veteran filed an original claim for entitlement to service connection for a psychiatric disability, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), and for thoracolumbar strain.  An April 2007 rating decision denied service connection for these disabilities, and she was furnished notice of that determination and of her appellate rights.  The April 2007 rating decision became final when she did not perfect a timely appeal of that decision after a statement of the case (SOC) was issued in December 2007 and then re-mailed to her in January 2008.

4. On September 22, 2009, the Veteran filed a petition to reopen the claims for entitlement to service connection for a psychiatric disability, for stress headaches, for hypertension, and for valvular heart disease (mitral valve prolapse), and filed an original claim for entitlement to service connection for vertigo.  A February 2010 rating decision denied service connection for these disabilities, and she was furnished notice of that determination and of her appellate rights.  The February 2010 rating decision became final when she did not appeal that decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period.

5. The Veteran re-entered active service on November 24, 2012.  During this active service period, on October 25, 2013, she filed a petition to reopen the claims for entitlement to service connection for a psychiatric disability, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, and for vertigo, and filed an original claim for entitlement to service connection for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, and for OSA with CPAP.  Thereafter, the Veteran separated from active service on November 23, 2013.

6. An April 2014 rating decision granted service connection for a psychiatric disability (currently characterized as PTSD with persistent depressive disorder), for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, and for OSA with CPAP; the effective date assigned for each of these service connection awards was November 24, 2013 (i.e., the day following the Veteran’s separation from active service).

7. A May 2014 rating decision granted service connection for vertigo; the effective date assigned for this service connection award was November 24, 2013 (i.e., the day following the Veteran’s separation from active service).

8. The award of service connection for fusion of right fourth finger distal interphalangeal joint in the April 2014 rating decision was clearly and unmistakably erroneous, as the evidence of record establishes that the Veteran has been diagnosed with degenerative changes affecting the distal interphalangeal joint of the right fifth finger (and not of the right fourth finger).

9. The awards of service connection for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, for allergic rhinitis, and for right shoulder sprain/strain in the April 2014 rating decision were not clearly and unmistakably erroneous, as the Veteran was presumed sound upon her entry into active duty in November 2012, the evidence of record does not rebut this presumption of soundness [i.e., while clear and unmistakable evidence shows that the Veteran’s stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, and right shoulder sprain/strain preexisted her period of active service from November 2012 to November 2013, there is no clear and unmistakable evidence showing that these preexisting disabilities did not undergo a permanent worsening beyond normal progression during this period of active service], and the evidence of record reasonably shows that the Veteran’s current stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, and right shoulder sprain/strain are related to her most recent period of active service from November 2012 to November 2013.

10. For the entire evaluation period (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s disability which was characterized as fusion of right fourth finger distal interphalangeal joint was shown to have been manifested by limitation of motion; this disability was not shown to have been manifested by ankylosis, by symptoms equivalent to a disability involving ring finger amputation, by limitation of motion of other digits, or by interference with overall hand function at any time during the evaluation period.

11. For the evaluation period prior to the restoration of service connection (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s stress headaches were shown to have been manifested by non-prostrating headache pain; her stress headaches were not shown to have been manifested by characteristic prostrating attacks or completely prostrating and prolonged attacks of headache pain at any time during the evaluation period.

12. For the evaluation period prior to the restoration of service connection (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s hypertension was shown to have required continuous medication for control; her hypertension was not shown to have been manifested by a history of diastolic pressure predominantly 100 or more, or by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more at any time during the evaluation period.

13. For the evaluation period prior to the restoration of service connection (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s valvular heart disease (mitral valve prolapse) was shown to have been manifested by a workload of greater than 5 Metabolic Equivalent of Tasks (METs) resulting in dyspnea and dizziness; her heart disability was not shown to have been manifested by any congestive heart failure, by a workload of 5 METs or less, by left ventricular dysfunction with an ejection fraction of 50 percent or less, or by active infection at any time during the evaluation period.

14. For the evaluation period prior to the restoration of service connection (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s iron deficiency anemia was shown to have been manifested by hemoglobin greater than 10gm/100ml; her iron deficiency anemia was not shown to have been manifested by hemoglobin 10gm/100ml or less at any time during the evaluation period.

15. For the evaluation period prior to the restoration of service connection (i.e., from November 24, 2013 to September 1, 2017), the Veteran’s allergic rhinitis was shown to have been manifested by rhinitis symptoms requiring continuous medication for control; her allergic rhinitis was not shown to have been manifested by polyps, by greater than 50-percent obstruction of nasal passages on both sides, or by complete obstruction on one side at any time during the evaluation period.

16. The Veteran underwent a complete hysterectomy of the uterus secondary to uterine fibroids in June 2013.  Therefore, for the entire evaluation period (i.e., from November 24, 2013), the Veteran’s status post total hysterectomy secondary to uterine fibroids is being evaluated more than three months after the June 2013 removal surgery.

17. An April 2014 rating decision awarded the Veteran entitlement to SMC based on anatomical loss of a creative organ (the uterus) due to her service-connected status post total hysterectomy secondary to uterine fibroids, effective November 24, 2013.

18. As the Veteran is already in receipt of an award of SMC based on loss or loss of use of a creative organ (i.e., anatomical loss of the uterus), by law she cannot receive an additional award of SMC based on loss or loss of use of a creative organ (such as loss of use of the vagina).

CONCLUSIONS OF LAW

1. The February 2010 rating decision denying service connection for a skin disability of the left upper extremity is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103.

2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a skin disability of the left upper extremity.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

3. An effective date prior to November 24, 2013, for the awards of service connection for PTSD with persistent depressive disorder, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, for OSA with CPAP, and for vertigo, is not warranted.  38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.155, 3.156, 3.400.

4. Restoration of service connection for fusion of right fourth finger distal interphalangeal joint is not warranted, as the severance of service connection for this disability was proper.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.303.

5. Restoration of service connection for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, for allergic rhinitis, and for right shoulder sprain/strain is warranted, as the severance of service connection for each of these disabilities was improper.  38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.303, 3.304(b).

6. A compensable rating (from November 24, 2013 to June 1, 2017) for fusion of right fourth finger distal interphalangeal joint is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5227, 5230.

7. A compensable rating (from November 24, 2013 to June 1, 2017) for stress headaches is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100.

8. A compensable rating (from November 24, 2013 to June 1, 2017) for hypertension is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7101.

9. A rating in excess of 30 percent (from November 24, 2013 to June 1, 2017) for valvular heart disease (mitral valve prolapse) is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7000.

10. A compensable rating (from November 24, 2013 to June 1, 2017) for iron deficiency anemia is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.117, DC 7700.

11. A compensable rating (from November 24, 2013 to September 1, 2017) for allergic rhinitis is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6522.

12. An initial rating in excess of 30 percent for status post total hysterectomy secondary to uterine fibroids is not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, DC 7618.

13. Entitlement to additional SMC based on loss of use of a creative organ (vagina) due to atrophic vaginitis is not warranted as a matter of law.  38 U.S.C. §§ 1114(k); 38 C.F.R. § 3.350(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Following a period of active duty for training (ACDUTRA) from July 1987 to December 1987, the Veteran served on active duty from April 2004 to June 2005 (including service in Iraq and Kuwait) and on active duty from November 2012 to November 2013 (including service in Afghanistan).

Although the Veteran initially requested a Board hearing on a June 2015 VA Form 9 (for the issues of entitlement to service connection for recurring muscle spasms in the right calf, entitlement to service connection for recurring muscle spasms in the left calf, and entitlement to an initial compensable rating for vertigo) and on a June 2015 VA Form 9 (for the issue of entitlement to service connection for teeth sensitivity), she subsequently withdrew these requests for a Board hearing on an August 2017 VA Form 9 (for the issues of entitlement to service connection for recurring muscle spasms in the right calf, entitlement to service connection for recurring muscle spasms in the left calf, and entitlement to an initial compensable rating for vertigo) and on an August 2017 VA Form 9 (for the issue of entitlement to service connection for teeth sensitivity). 



Reopening a Service Connection Claim

1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disability of the left upper extremity.

Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C. §§ 7104, 7105.  However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  In determining whether evidence is new and material, the credibility of the new evidence must be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement.  Shade, 24 Vet. App. at 118.

If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512.  Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Id. at 513.

A claim for entitlement to service connection for a skin disability of the left upper extremity (claimed as a skin condition to include a recurring rash on the left hand) was initially denied in an April 2007 rating decision on the basis that the evidence did not show a diagnosis of a current skin disability of the left upper extremity.  The AOJ notified the Veteran of its decision, and of her appellate rights.  The Veteran submitted a timely notice of disagreement (NOD) in April 2007, but did not submit a timely substantive appeal after an SOC was issued in December 2007 and then re-mailed to her in January 2008.  Therefore, the April 2007 rating decision became final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103.

Thereafter, a February 2010 rating decision determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for a skin disability of the left upper extremity (claimed as a skin condition to include a recurring rash on the left hand).  The AOJ notified the Veteran of its decision, and of her appellate rights.  The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following the decision.  Therefore, the February 2010 rating decision became final.  See id.

The Board finds that the benefits claimed and denied in the prior rating decisions (i.e., service connection for a skin condition to include a recurring rash on the left hand) and the current claim (i.e., service connection for a skin disability of the left upper extremity) are the same, as the Veteran has identified the same disability in both claims.  As such, the Board does not construe the current claim as a claim for a “distinctly diagnosed disease” from the claim adjudicated in the prior rating decisions.  Likewise, the Board finds that the current claim is not a separate and distinct claim, but rather a claim to reopen a prior determination.  See Velez v. Shinseki, 23 Vet. App. 199 (2009).

Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The evidence received since the February 2010 rating decision includes the report of a December 2013 VA skin disease examination which documents a diagnosis for the Veteran of contact dermatitis (described by the Veteran as affecting her left wrist and left hand).  This evidence was not before adjudicators when the Veteran’s claim was last denied in February 2010, and it is not cumulative or redundant of the evidence of record at the time of that decision.  It also relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disability of the left upper extremity, and raises a reasonable possibility of substantiating the claim.  Accordingly, the claim is reopened.



Earlier Effective Date Claims

2. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for PTSD with persistent depressive disorder.

3. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for stress headaches.

4. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for hypertension.

5. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for valvular heart disease (mitral valve prolapse).

6. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for thoracolumbar strain.

7. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for iron deficiency anemia.

8. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for allergic rhinitis.

9. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for status post total hysterectomy secondary to uterine fibroids.

10. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right shoulder sprain/strain.

11. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for left shoulder sprain/strain.

12. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for neck sprain and strain.

13. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right knee sprain/strain.

14. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for left knee sprain/strain.

15. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right ankle sprain.

16. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for right hallux valgus.

17. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for left eye cortical cataract.

18. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for acne.

19. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for atrophic vaginitis.

20. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for OSA with CPAP.

21. Entitlement to an effective date prior to November 24, 2013 for the award of service connection for vertigo.

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  38 U.S.C. § 5110(a).  The implementing regulation states that the effective date of an evaluation and an award of compensation based on a reopened claim will be the “[d]ate of receipt of claim or date entitlement arose, whichever is later.”  38 C.F.R. § 3.400(r).

In addition, unless specifically provided otherwise, the effective date of an award will be the day following separation from active service or the date entitlement arose if the claim is received by VA within one year after separation from service; otherwise, the effective date will be the date of receipt of claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2).

On May 25, 2006, the Veteran filed an original claim for entitlement to service connection for a psychiatric disability, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), and for thoracolumbar strain.  An April 2007 rating decision denied service connection for these disabilities, and she was furnished notice of that determination and of her appellate rights.  The April 2007 rating decision became final when she did not perfect a timely appeal of that decision after an SOC was issued in December 2007 and then re-mailed to her in January 2008.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103.

On September 22, 2009, the Veteran filed a petition to reopen the claims for entitlement to service connection for a psychiatric disability, for stress headaches, for hypertension, and for valvular heart disease (mitral valve prolapse), and filed an original claim for entitlement to service connection for vertigo.  A February 2010 rating decision denied service connection for these disabilities, and she was furnished notice of that determination and of her appellate rights.  The February 2010 rating decision became final when she did not appeal that decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period.  See id.

The Veteran re-entered active service on November 24, 2012.  During this active service period, on October 25, 2013, she filed a petition to reopen the claims for entitlement to service connection for a psychiatric disability, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, and for vertigo, and filed an original claim for entitlement to service connection for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, and for OSA with CPAP.  Thereafter, the Veteran separated from active service on November 23, 2013.

An April 2014 rating decision granted service connection for a psychiatric disability (currently characterized as PTSD with persistent depressive disorder), for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, and for OSA with CPAP; the effective date assigned for each of these service connection awards was November 24, 2013 (i.e., the day following the Veteran’s separation from active service).

A May 2014 rating decision granted service connection for vertigo; the effective date assigned for this service connection award was November 24, 2013 (i.e., the day following the Veteran’s separation from active service).

In the current appeal, the Veteran contends that she is entitled to an effective date prior to November 24, 2013 for the awards of service connection for PTSD with persistent depressive disorder, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, for OSA with CPAP, and for vertigo.  She has alleged that an earlier effective date is warranted because these conditions may have begun during her first period of active duty service from April 2004 to June 2005, to include as a result of her service in the Southwest Asia theater of operations during that time.

As outlined above, the April 2007 rating decision (which denied the Veteran’s original May 25, 2006 claim for service connection for a psychiatric disability, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), and for thoracolumbar strain) became final when she did not perfect a timely appeal of that decision after an SOC was issued in December 2007 and then re-mailed to her in January 2008.  See 38 U.S.C. § 7105(c); see also 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103.

In addition, as outlined above, the February 2010 rating decision (which denied the Veteran’s September 22, 2009 petition to reopen claims for a psychiatric disability, for stress headaches, for hypertension, and for valvular heart disease (mitral valve prolapse) as well as her original September 22, 2009 claim for service connection for vertigo) became final when she did not appeal that decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period.  See id.

There is no evidence or correspondence in the record that was received between the February 2010 rating decision and the Veteran’s re-entry into active duty on November 24, 2012 which could be construed as any type of claim for service connection for the disabilities at issue.

The date of receipt of the instant petition to reopen the claims for service connection for a psychiatric disability, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, and for vertigo, as well as the instant original claim for service connection for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, and for OSA with CPAP, is October 25, 2013, which was during her most recent period of active duty service.

Because the October 25, 2013 claim was received within one year of the date that the Veteran separated from active service (on November 23, 2013), the earliest possible (and appropriate) effective date for the awards of service connection for PTSD with persistent depressive disorder, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, for OSA with CPAP, and for vertigo is November 24, 2013 (which is the day following her separation from active service), in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2).

Accordingly, the Board finds that an effective date earlier than November 24, 2013, for the awards of service connection for PTSD with persistent depressive disorder, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for thoracolumbar strain, for iron deficiency anemia, for allergic rhinitis, for status post total hysterectomy secondary to uterine fibroids, for right shoulder sprain/strain, for left shoulder sprain/strain, for neck sprain and strain, for right knee sprain/strain, for left knee sprain/strain, for right ankle sprain, for right hallux valgus, for left eye cortical cataract, for acne, for atrophic vaginitis, for OSA with CPAP, and for vertigo, is not warranted, and the earlier effective date claims are denied.

 



Restoration of Service Connection (Propriety of Severance) Claims

For procedural history, an April 2014 rating decision granted service connection for fusion of right fourth finger distal interphalangeal joint, for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, and for right shoulder sprain/strain, effective November 24, 2013.  The Veteran filed an NOD as to the initial rating assigned for fusion of right fourth finger distal interphalangeal joint (in April 2015), for stress headaches (in April 2015), for hypertension (in April 2015), for valvular heart disease (mitral valve prolapse) (in April 2015), for iron deficiency anemia (in April 2015), and for right shoulder sprain/strain (in April 2015).  Thereafter, following an October 2016 rating decision proposing severance of service connection for these disabilities, a March 2017 rating decision severed service connection for these disabilities, effective June 1, 2017, based on a finding that the awards of service connection for these disabilities in the April 2014 rating decision were clearly and unmistakably erroneous.  In an August 2017 SOC, the AOJ denied increased ratings for these disabilities for the period from November 24, 2013 to June 1, 2017, and also denied “entitlement to service connected benefits” for these disabilities from June 1, 2017 (essentially adjudicating, and validating, the propriety of the severances).  In August 2017, the Veteran filed a VA Form 9 as to all of the issues listed on the August 2017 SOC.

In addition, the same April 2014 rating decision granted service connection for allergic rhinitis, effective November 24, 2013.  The Veteran filed an NOD as to the initial rating assigned for allergic rhinitis (in April 2015).  Thereafter, following a March 2017 rating decision proposing severance of service connection for this disability, a June 2017 rating decision severed service connection for this disability, effective September 1, 2017, based on a finding that the award of service connection for this disability in the April 2014 rating decision was clearly and unmistakably erroneous.  In an August 2017 SOC, the AOJ denied an increased rating for this disability for the period from November 24, 2013 to June 1, 2017 [which should have been listed as September 1, 2017], and also denied “entitlement to service connected benefits” for this disability from June 1, 2017 [which should have been listed as September 1, 2017] (essentially adjudicating, and validating, the propriety of the severance).  As noted above, in August 2017, the Veteran filed a VA Form 9 as to all of the issues listed on the August 2017 SOC.

Although the Veteran did not formally appeal the “propriety of severance” matters outlined above, she did express disagreement with these severances by way of her August 2017 VA Form 9.  The propriety of these severances is a threshold question that must be resolved, and an appeal in these “propriety of severance” matters is implicitly part and parcel of the appeal within the broader context of the increased rating issues at hand; therefore, the “propriety of severance” issues will be addressed by the Board in the instant decision.

VA’s regulatory provisions governing the severance of service connection awards provide that, subject to the limitations contained in 38 C.F.R. §§ 3.114 and 3.957, service connection may be severed only where the evidence establishes that the award of service connection was clearly and unmistakably erroneous, with the burden of proof being upon the Government.  38 C.F.R. § 3.105(d).

22. Entitlement to restoration of service connection for fusion of right fourth finger distal interphalangeal joint, and whether the severance of service connection for such disability was proper.

A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous.  This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion.  38 C.F.R. § 3.105(d).

The Veteran’s service treatment records (STRs) document that she fractured and lacerated her right fifth finger when closing her hand in a door accidentally in the line of duty during a period of ACDUTRA in September 2012.  Her STRs do not note any complaints, findings, diagnosis, or treatment pertaining to fusion of the right fourth finger distal interphalangeal joint.

Post-service, at a December 2013 VA hand and fingers examination, the Veteran was diagnosed with fusion of the right fourth finger distal interphalangeal joint.  The Veteran reported having stiffness and pain in the right fourth finger and loss of motion in the distal interphalangeal joint of that finger “since the crush injury.”  [As noted above, the Veteran’s STRs document that the noted crush injury affected only her right fifth finger.]

As noted above, following the December 2013 VA hand and fingers examination, an April 2014 rating decision granted service connection for fusion of right fourth finger distal interphalangeal joint, effective November 24, 2013.

Subsequently, at an April 2016 VA hand and fingers examination, the Veteran was diagnosed with degenerative arthritis of the right fifth finger based on x-ray evidence.  The VA examiner noted the September 2012 fracture of the Veteran’s right fifth finger (as documented in her STRs) and went on to note that the current x-rays showed degenerative changes only in her right fifth finger distal interphalangeal joint.

Thereafter, as noted above, an October 2016 rating decision proposed severance of service connection for fusion of right fourth finger distal interphalangeal joint.  [The same October 2016 rating decision granted service connection for right fifth finger arthritis, status post fracture, effective November 24, 2013; such issue is not on appeal and is not before the Board.]  A March 2017 rating decision then severed service connection for fusion of right fourth finger distal interphalangeal joint, effective June 1, 2017, based on a finding that the award of service connection for this disability in the April 2014 rating decision was clearly and unmistakably erroneous.

The Board finds that the award of service connection for fusion of right fourth finger distal interphalangeal joint in the April 2014 rating decision was clearly and unmistakably erroneous, as the evidence of record (including the September 2012 STR showing an injury to the Veteran’s right fifth finger and the April 2016 VA hand and fingers examination report noting x-ray evidence of degenerative changes only in her right fifth finger distal interphalangeal joint) establishes that the Veteran has been diagnosed with degenerative changes affecting the distal interphalangeal joint of the right fifth finger (and not of the right fourth finger).  In the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The aforementioned evidence shows that the diagnosis rendered at the December 2013 VA hand and fingers examination, on which service connection was predicated, was clearly erroneous.

Accordingly, the Board finds that restoration of service connection for fusion of right fourth finger distal interphalangeal joint is not warranted, as the severance of service connection for such disability was proper.  See 38 C.F.R. § 3.105(d).



23. Entitlement to restoration of service connection for stress headaches, and whether the severance of service connection for such disability was proper.

24. Entitlement to restoration of service connection for hypertension, and whether the severance of service connection for such disability was proper.

25. Entitlement to restoration of service connection for valvular heart disease (mitral valve prolapse), and whether the severance of service connection for such disability was proper.

26. Entitlement to restoration of service connection for iron deficiency anemia, and whether the severance of service connection for such disability was proper.

27. Entitlement to restoration of service connection for allergic rhinitis, and whether the severance of service connection for such disability was proper.

28. Entitlement to restoration of service connection for right shoulder sprain/strain, and whether the severance of service connection for such disability was proper.

A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).

When no preexisting injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  See 38 C.F.R. § 3.304(b).  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s injury or disease was both preexisting and not aggravated by service.  38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  If the presumption of sound condition is not rebutted, “the [V]eteran’s claim is one for service connection.”  Wagner, 370 F.3d at 1096.

The medical evidence of record documents that the Veteran was initially treated for headaches in October 2003, for hypertension in October 1999, for valvular heart disease (mitral valve prolapse) in July 1999, for anemia in 1980 (as noted in a December 2013 VA general medical examination report), for rhinitis in December 1998, and for right shoulder pain in December 2007.  As such, each of these disabilities was shown to have been treated prior to her most recent period of active service from November 2012 to November 2013.

The evidence of record does not contain the report of any service entrance examination for the Veteran upon her entry into active service in November 2012.  Her STRs, and in particular the report of her October 2013 service separation examination and an accompanying October 2013 Report of Medical History, document treatment for stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, and right shoulder pain during her most recent period of active service from November 2012 to November 2013.

One month post-service, at a December 2013 VA general medical examination, the Veteran was diagnosed with stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, and right shoulder strain, and all of these disabilities were characterized as “Chronic” by the VA examiner.

As noted above, following the December 2013 VA general medical examination, an April 2014 rating decision granted service connection for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, for allergic rhinitis, and for right shoulder sprain/strain, effective November 24, 2013.

Subsequently, the following VA medical opinions were obtained.  In August 2016, a VA physician opined that the Veteran’s stress headaches, hypertension, and valvular heart disease (mitral valve prolapse) each clearly and unmistakably preexisted her period of active service from November 2012 to November 2013, but that none of these disabilities were aggravated beyond natural progress by any in-service event, injury, or illness.  In August 2016, a VA physician’s assistant opined that the Veteran’s iron deficiency anemia clearly and unmistakably preexisted her period of active service from November 2012 to November 2013, but that it was “less likely than not” that this disability was aggravated beyond its natural progression by or a result of any incident of this active service.  In October 2016, a VA physician opined that the Veteran’s allergic rhinitis clearly and unmistakably preexisted her period of active service from November 2012 to November 2013, but that it was “less likely than not” that this disability was aggravated beyond its natural progression by or a result of any incident of this active service.  In August 2016, a VA physician opined that the Veteran’s right shoulder sprain/strain clearly and unmistakably preexisted her period of active service from November 2012 to November 2013, but that such disability was “less likely than not” aggravated beyond its natural progression by this active service.  However, the Board notes that none of the aforementioned VA medical providers cited to any clear and unmistakable evidence to support these opinions regarding the alleged lack of in-service aggravation of each of these disabilities and also used a less burdensome standard of less likely than not, as opposed to the standard of there being clear and unmistakable evidence that there was not aggravation, which is required to rebut the presumption of soundness.  The Board also reiterates that the STRs did document treatment of each of these disabilities during the Veteran’s active military service from November 2012 to November 2013. 

Thereafter, as noted above, an October 2016 rating decision proposed severance of service connection for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, and for right shoulder sprain/strain.  A March 2017 rating decision then severed service connection for each of these disabilities, effective June 1, 2017, based on a finding that the awards of service connection for these disabilities in the April 2014 rating decision were clearly and unmistakably erroneous.

Furthermore, as noted above, a March 2017 rating decision proposed severance of service connection for allergic rhinitis.  A June 2017 rating decision severed service connection for this disability, effective September 1, 2017, based on a finding that the award of service connection for this disability in the April 2014 rating decision was clearly and unmistakably erroneous.

The Board finds that the awards of service connection for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, for allergic rhinitis, and for right shoulder sprain/strain in the April 2014 rating decision were not clearly and unmistakably erroneous.  Because the evidence of record does not contain the report of any service entrance examination for the Veteran upon her entry into active service in November 2012, the Board finds that she is presumed to have been sound upon entry into her period of active service from November 2012 to November 2013.  See 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b).  In addition, the Board finds that the evidence of record (as outlined in detail above) does not rebut this presumption of soundness; while clear and unmistakable evidence shows that the Veteran’s stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, and right shoulder sprain/strain preexisted her period of active service from November 2012 to November 2013, there is no clear and unmistakable evidence showing that these preexisting disabilities did not undergo a permanent worsening beyond normal progression during this period of active service.  See id.  Finally, the Board finds that the evidence of record (including the pertinent STRs as well as the December 2013 VA general medical examination report) reasonably shows that the Veteran’s current stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, and right shoulder sprain/strain are related to her most recent period of active service from November 2012 to November 2013.  See Wagner, 370 F.3d at 1096; see 38 U.S.C. § 1110; see also 38 C.F.R. § 3.303.

Accordingly, as the evidence does not show that the award of service connection for stress headaches, for hypertension, for valvular heart disease (mitral valve prolapse), for iron deficiency anemia, for allergic rhinitis, and for right shoulder sprain/strain was clearly and unmistakably erroneous, the Board finds that restoration of service connection for these disabilities is warranted, as the severance of service connection for each of these disabilities was improper.  See 38 C.F.R. § 3.105(d).



Increased Rating Claims

As an initial matter, the Board finds that there is no claim currently on appeal for an increased rating for the Veteran’s PTSD with persistent depressive disorder.  An April 2014 rating decision granted service connection for major depression and assigned an initial 30 percent rating, effective November 24, 2013.  Following an April 2015 NOD disagreeing with the initial rating assigned, an October 2016 rating decision recharacterized the issue as PTSD with persistent depressive disorder and granted a 100 percent rating, effective November 24, 2013.  Because this award represents a total grant of benefits sought on appeal with regard to her rating for this disability, the matter regarding the initial rating assigned is moot and is not before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

Generally, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Separate “staged” ratings may be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 27 (1999).

29. Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for fusion of right fourth finger distal interphalangeal joint.

As an initial matter, the Board notes that the increased rating claim on appeal for fusion of right fourth finger distal interphalangeal joint is limited to the period from November 24, 2013 to June 1, 2017, in light of the Board’s finding in the instant decision that the severance of service connection for this disability (effective June 1, 2017) was proper.

For musculoskeletal disabilities (such as the Veteran’s right fourth finger disability), in determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. § 4.45.

As outlined in detail above, the appeal period for evaluating the Veteran’s fusion of right fourth finger distal interphalangeal joint is limited to the period from November 24, 2013 to June 1, 2017.

During the appeal period, the Veteran’s fusion of right fourth finger distal interphalangeal joint was rated under DC 5230, which provides that a 0 percent rating is warranted for any limitation of motion of the ring [fourth] finger.  38 C.F.R. § 4.71a, DC 5230.

Alternatively, under DC 5227, a 0 percent rating is warranted for unfavorable or favorable ankylosis of the ring finger.  A Note to DC 5227 says to consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand.  38 C.F.R. § 4.71a, DC 5227.

For the entire evaluation period (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s disability which was characterized as fusion of right fourth finger distal interphalangeal joint was shown to have been manifested by limitation of motion, as shown by the evidence of record (including the reports of VA hand and fingers examinations in December 2013 and April 2016).  In addition, the aforementioned evidence of record shows that this disability was not shown to have been manifested by ankylosis, by symptoms equivalent to a disability involving ring finger amputation, by limitation of motion of other digits, or by interference with overall hand function at any time during the evaluation period.

Accordingly, the Board finds that a compensable rating for the Veteran’s fusion of right fourth finger distal interphalangeal joint is not warranted at any time during the evaluation period from November 24, 2013 to June 1, 2017.  See 38 C.F.R. § 4.71a, DCs 5227, 5230; see also Fenderson, 12 Vet. App. at 119, 126 27.

30. Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for stress headaches.

At present, the Board will only evaluate the rating for the Veteran’s stress headaches for the period from November 24, 2013 to June 1, 2017 (i.e., the entire period of appeal prior to the AOJ’s severance of service connection for this disability).  In light of the Board’s finding in the instant decision that the AOJ’s severance of service connection for this disability was improper and that service connection should be restored, the matter of the rating for stress headaches from June 1, 2017 (i.e., the date of restoration) will be addressed in the Remand section below.

During the appeal period, the Veteran’s stress headaches were rated under DC 8100, which provides the following ratings for migraine.  A 0 percent rating is warranted for migraines with less frequent attacks.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months.  A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, DC 8100.

For the entire evaluation period being considered at present (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s stress headaches were shown to have been manifested by non-prostrating headache pain, as shown by the evidence of record (including the reports of VA headaches examinations in December 2013 and August 2016).  In addition, the aforementioned evidence of record shows that her stress headaches were not shown to have been manifested by characteristic prostrating attacks or completely prostrating and prolonged attacks of headache pain at any time during the evaluation period.

Accordingly, the Board finds that a compensable rating for the Veteran’s stress headaches is not warranted at any time during the evaluation period from November 24, 2013 to June 1, 2017.  See 38 C.F.R. § 4.124a, DC 8100; see also Fenderson, 12 Vet. App. at 119, 126 27.

31. Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for hypertension.

At present, the Board will only evaluate the rating for the Veteran’s hypertension for the period from November 24, 2013 to June 1, 2017 (i.e., the entire period of appeal prior to the AOJ’s severance of service connection for this disability).  In light of the Board’s finding in the instant decision that the AOJ’s severance of service connection for this disability was improper and that service connection should be restored, the matter of the rating for hypertension from June 1, 2017 (i.e., the date of restoration) will be addressed in the Remand section below.

During the appeal period, the Veteran’s hypertension was rated under DC 7101, which provides the following ratings for hypertensive vascular disease (including hypertension and isolated systolic hypertension).  A 10 percent rating is warranted for hypertension with diastolic pressure predominantly 100 or more; or, systolic pressure predominantly 160 or more; or, for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent rating is warranted for hypertension with diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more.  A 40 percent rating is warranted for hypertension with diastolic pressure predominantly 120 or more.  A 60 percent rating is warranted for hypertension with diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104, DC 7101.

For the entire evaluation period being considered at present (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s hypertension was shown to have required continuous medication for control, as shown by the evidence of record (including the reports of VA hypertension examinations in December 2013 and August 2016).  However, the evidence of record does not show that she had a history of diastolic pressure predominantly 100 or more.  Therefore, she is not entitled to a 10 percent rating based on her taking of continuous medication.  In addition, the aforementioned evidence of record shows that her hypertension was not shown to have been manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more at any time during the evaluation period.

Accordingly, the Board finds that a compensable rating for the Veteran’s hypertension is not warranted at any time during the evaluation period from November 24, 2013 to June 1, 2017.  See 38 C.F.R. § 4.104, DC 7101; see also Fenderson, 12 Vet. App. at 119, 126 27.

32. Entitlement to a 30 percent rating (from November 24, 2013 to June 1, 2017) for valvular heart disease (mitral valve prolapse).

At present, the Board will only evaluate the rating for the Veteran’s valvular heart disease (mitral valve prolapse) for the period from November 24, 2013 to June 1, 2017 (i.e., the entire period of appeal prior to the AOJ’s severance of service connection for this disability).  In light of the Board’s finding in the instant decision that the AOJ’s severance of service connection for this disability was improper and that service connection should be restored, the matter of the rating for valvular heart disease (mitral valve prolapse) from June 1, 2017 (i.e., the date of restoration) will be addressed in the Remand section below.

During the appeal period, the Veteran’s valvular heart disease (mitral valve prolapse) was rated under DC 7000, which provides the following ratings for valvular heart disease.  A 30 percent rating is warranted for valvular heart disease resulting in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent rating is warranted for valvular heart disease resulting in more than one episode of acute congestive heart failure in the past year; or, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent rating is warranted for valvular heart disease resulting in chronic congestive heart failure; or, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent; or, during active infection with valvular heart damage and for three months following cessation of therapy for the active infection.  38 C.F.R. § 4.104, DC 7000.

For the entire evaluation period being considered at present (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s valvular heart disease (mitral valve prolapse) was shown to have been manifested by a workload of greater than 5 METs resulting in dyspnea and dizziness, as shown by the evidence of record (including the reports of VA heart examinations in December 2013 and August 2016).  In addition, the aforementioned evidence of record shows that her heart disability was not shown to have been manifested by any congestive heart failure, by a workload of 5 METs or less, by left ventricular dysfunction with an ejection fraction of 50 percent or less, or by active infection at any time during the evaluation period.

Accordingly, the Board finds that a rating in excess of 30 percent for the Veteran’s valvular heart disease (mitral valve prolapse) is not warranted at any time during the evaluation period from November 24, 2013 to June 1, 2017.  See 38 C.F.R. § 4.104, DC 7000; see also Fenderson, 12 Vet. App. at 119, 126 27.

33. Entitlement to a compensable rating (from November 24, 2013 to June 1, 2017) for iron deficiency anemia.

At present, the Board will only evaluate the rating for the Veteran’s iron deficiency anemia for the period from November 24, 2013 to June 1, 2017 (i.e., the entire period of appeal prior to the AOJ’s severance of service connection for this disability).  In light of the Board’s finding in the instant decision that the AOJ’s severance of service connection for this disability was improper and that service connection should be restored, the matter of the rating for iron deficiency anemia from June 1, 2017 (i.e., the date of restoration) will be addressed in the Remand section below.

During the appeal period, the Veteran’s iron deficiency anemia was rated under DC 7700, which provides the following ratings for hypochromic-microcytic and megaloblastic anemia (including iron-deficiency and pernicious anemia).  A 0 percent rating is warranted for anemia with hemoglobin 10gm/100ml or less, asymptomatic.  A 10 percent rating is warranted for anemia with hemoglobin 10gm/100ml or less, with findings such as weakness, easy fatigability, or headaches.  A 30 percent rating is warranted for anemia with hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath.  A 70 percent rating is warranted for anemia with 7gm/100ml 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).  A 100 percent rating is warranted for anemia with hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest.  38 C.F.R. § 4.117, DC 7700.

[The Board notes that VA has recently revised the criteria for rating disabilities of the hematologic and lymphatic systems, to include removing DC 7700 from 38 C.F.R. § 4.117.  However, these revisions are only effective as of December 9, 2018, thereby post-dating the evaluation period currently being considered in the instant decision which ends on June 1, 2017.  Regarding the evaluation period after June 1, 2017 (and in particular, beginning on December 9, 2018), these revisions will be addressed in the Remand section below as appropriate.  See 83 Fed. Reg. 54,250-259 (Oct. 29, 2018).]

For the entire evaluation period being considered at present (i.e., from November 24, 2013 to June 1, 2017), the Veteran’s iron deficiency anemia was shown to have been manifested by hemoglobin greater than 10gm/100ml, as shown by the evidence of record (including the report of a VA hematologic examination in December 2013 and a VA medical opinion obtained in August 2016).  In addition, the aforementioned evidence of record shows that her iron deficiency anemia was not shown to have been manifested by hemoglobin 10gm/100ml or less at any time during the evaluation period.

Accordingly, the Board finds that a compensable rating for the Veteran’s iron deficiency anemia is not warranted at any time during the evaluation period from November 24, 2013 to June 1, 2017.  See 38 C.F.R. § 4.117, DC 7700; see also Fenderson, 12 Vet. App. at 119, 126 27.

34. Entitlement to a compensable rating (from November 24, 2013 to September 1, 2017) for allergic rhinitis.

At present, the Board will only evaluate the rating for the Veteran’s allergic rhinitis for the period from November 24, 2013 to September 1, 2017 (i.e., the entire period of appeal prior to the AOJ’s severance of service connection for this disability).  In light of the Board’s finding in the instant decision that the AOJ’s severance of service connection for this disability was improper and that service connection should be restored, the matter of the rating for allergic rhinitis from September 1, 2017 (i.e., the date of restoration) will be addressed in the Remand section below.

During the appeal period, the Veteran’s allergic rhinitis was rated under DC 6522, which provides the following ratings for allergic or vasomotor rhinitis.  A 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side.  A 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps.  38 C.F.R. § 4.97, DC 6522.

For the entire evaluation period being considered at present (i.e., from November 24, 2013 to September 1, 2017), the Veteran’s allergic rhinitis was shown to have been manifested by rhinitis symptoms requiring continuous medication for control, as shown by the evidence of record (including the reports of VA nose examinations in December 2013 and August 2016).  In addition, the aforementioned evidence of record shows that her allergic rhinitis was not shown to have been manifested by polyps, by greater than 50-percent obstruction of nasal passages on both sides, or by complete obstruction on one side at any time during the evaluation period.

Accordingly, the Board finds that a compensable rating for the Veteran’s allergic rhinitis is not warranted at any time during the evaluation period from November 24, 2013 to September 1, 2017.  See 38 C.F.R. § 4.97, DC 6522; see also Fenderson, 12 Vet. App. at 119, 126 27.

35. Entitlement to an initial rating in excess of 30 percent for status post total hysterectomy secondary to uterine fibroids.

The Veteran’s status post total hysterectomy secondary to uterine fibroids is rated under DC 7618, which provides a 100 percent rating for removal of the uterus (including corpus) for three months after removal, and a 30 percent rating thereafter.  38 C.F.R. § 4.116, DC 7618.

[The Board notes that, during the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the gynecological system.  However, these revisions did not alter DC 7618 in any way.  See 83 Fed. Reg. 15,068-074 (Apr. 9, 2018).]

The Veteran underwent a complete hysterectomy of the uterus secondary to uterine fibroids in June 2013, as noted in the report of a VA gynecology examination in December 2013.  Therefore, for the entire evaluation period (i.e., from November 24, 2013), the Veteran’s status post total hysterectomy secondary to uterine fibroids is being evaluated more than three months after the June 2013 removal surgery.

Accordingly, the Board finds that a rating in excess of 30 percent for the Veteran’s status post total hysterectomy secondary to uterine fibroids is not warranted at any time during the evaluation period (i.e., from November 24, 2013); 30 percent is the maximum schedular rating available under DC 7618.  See 38 C.F.R. § 4.116, DC 7618; see also Fenderson, 12 Vet. App. at 119, 126 27.

[As will be noted below, an April 2014 rating decision awarded the Veteran entitlement to SMC based on anatomical loss of a creative organ (uterus) due to hysterectomy, effective November 24, 2013.  As such, this award has been in effect for the entire evaluation period.]



SMC Claim

36. Entitlement to additional SMC based on loss of use of a creative organ (vagina) due to atrophic vaginitis.

SMC under 38 U.S.C. § 1114(k) is payable for the anatomical loss or loss of use of one or more creative organs.  38 C.F.R. § 3.350(a).

An April 2014 rating decision awarded the Veteran entitlement to SMC based on anatomical loss of a creative organ (the uterus) due to her service-connected status post total hysterectomy secondary to uterine fibroids, effective November 24, 2013.

The Veteran is now seeking entitlement to additional SMC based on loss of use of a creative organ (the vagina) due to her service-connected atrophic vaginitis.

As the Veteran is already in receipt of an award of SMC based on loss or loss of use of a creative organ (i.e., anatomical loss of the uterus), by law she cannot receive an additional award of SMC based on loss or loss of use of another creative organ (such as loss of use of the vagina).  As outlined above, the law provides that an award of SMC is warranted for the anatomical loss or loss of use of one or more creative organs; thus, a Veteran is entitled to only one SMC award under this provision, regardless of how many creative organs have been lost anatomically and/or in terms of use.  See 38 U.S.C. § 1114(k); see also 38 C.F.R. § 3.350(a).

The Board is sympathetic to the Veteran’s situation.  However, the provisions of 38 U.S.C. § 1114 do not provide a basis upon which to assign a higher level of SMC based on loss of use of a creative organ (such as the vagina) when an SMC award is already in effect for anatomical loss of a creative organ (i.e., the uterus), as is the case here.

Accordingly, the Board finds that the Veteran’s claim for entitlement to additional SMC based on loss of use of a creative organ (vagina) due to atrophic vaginitis must be denied as a matter of law – and, as such, any factual questions pertaining to the Veteran’s alleged loss of use of the vagina are rendered moot.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application.  38 U.S.C. § 5107(b).

REASONS FOR REMAND

Service Connection Claims

As an initial matter, the Board notes that an April 2007 rating decision denied service connection for twitching of the left thigh and for twitching of the eyebrows, and the April 2007 rating decision became final when the Veteran did not perfect a timely appeal of that decision after an SOC was issued in December 2007 and then re-mailed to her in January 2008.  See 38 U.S.C. § 7105(c); see also 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103.  Thereafter, a February 2010 rating decision determined that new and material evidence had not been received to reopen claims for entitlement to service connection for twitching of the left thigh and for twitching of the eyebrows, and the February 2010 rating decision became final when the Veteran did not appeal that decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period.  See id.

The Board finds that the Veteran’s current claims on appeal for entitlement to service connection for body twitching and for facial twitching encompass a broader range of disabilities than the aforementioned claims which were denied in the April 2007 and February 2010 rating decisions.  Therefore, the Board finds that the current claims are separate from her previously denied claims.  Consequently, the current claims will be reviewed as original claims for service connection rather than as requests to reopen.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).

1. Entitlement to service connection for a skin disability of the left upper extremity.

2. Entitlement to service connection for sinusitis.

3. Entitlement to service connection for enlarged heart.

4. Entitlement to service connection for left hallux limitus.

5. Entitlement to service connection for recurring muscle spasms in the right calf.

6. Entitlement to service connection for recurring muscle spasms in the left calf.

7. Entitlement to service connection for body twitching.

8. Entitlement to service connection for facial twitching.

9. Entitlement to service connection for burning mouth syndrome (claimed as herpes).

10. Entitlement to service connection for teeth sensitivity.

The Veteran contends that she currently has symptoms of a skin disability of the left upper extremity, sinusitis, enlarged heart, left hallux limitus, recurring muscle spasms in the right calf, recurring muscle spasms in the left calf, body twitching, facial twitching, burning mouth syndrome, and teeth sensitivity which began during her active service in the Southwest Asia theater of operations and have continued from the time of such service to the present time.  She has also indicated that her symptoms of body twitching and facial twitching may be secondary to her service-connected PTSD with persistent depressive disorder.

The Veteran’s DD Form 214 for her period of active duty service from April 2004 to June 2005 documents that she served in Iraq and Kuwait.  Therefore, her service in the Southwest Asia theater of operations has been verified.  See 38 C.F.R. § 3.317(e)(2).

The Board cannot make a fully-informed decision on these issues at this time because there are no medical opinions currently of record addressing whether the Veteran has any of the above-claimed disabilities (i.e., a skin disability of the left upper extremity, sinusitis, enlarged heart, left hallux limitus, recurring muscle spasms in the right calf, recurring muscle spasms in the left calf, body twitching, facial twitching, burning mouth syndrome, and teeth sensitivity), including an undiagnosed illness or a medically unexplained chronic multisymptom illness, which are related to her military service (including her verified Southwest Asia service).  [While a VA physician provided a medical opinion in August 2016 that the Veteran did not have herpes caused by an undiagnosed illness, this opinion did not address the question of whether the Veteran’s “burning mouth” symptoms themselves represented an undiagnosed illness or a medically unexplained chronic multisymptom illness.]  An examination with medical opinion is needed, with specific consideration given to all pertinent STRs and to her allegations of continuity of symptomatology since service.  In addition, a medical opinion is needed to address any relationship between any current body twitching disability and facial twitching disability and her service-connected PTSD with persistent depressive disorder.



Increased Rating Claims

The Board notes that an August 2017 rating decision granted increased ratings for the Veteran’s left shoulder sprain/strain (to 20 percent, effective November 24, 2013), for her right knee sprain/strain (to 10 percent, effective November 24, 2013), for her left knee sprain/strain (to 10 percent, effective November 24, 2013), and for her right ankle sprain (to 10 percent, effective November 24, 2013).  However, because these awards do not represent a total grant of benefits sought on appeal with regard to her ratings for these disabilities, the claims for increased ratings for these disabilities remain before the Board.  See AB, 6 Vet. App. at 35.

11. Entitlement to a compensable rating (from the date service connection was restored on June 1, 2017) for stress headaches.

12. Entitlement to a compensable rating (from the date service connection was restored on June 1, 2017) for hypertension.

13. Entitlement to a 30 percent rating (from the date service connection was restored on June 1, 2017) for valvular heart disease (mitral valve prolapse).

14. Entitlement to a compensable rating (from the date service connection was restored on June 1, 2017) for iron deficiency anemia.

15. Entitlement to a compensable rating (from the date service connection was restored on September 1, 2017) for allergic rhinitis.

16. Entitlement to an initial rating in excess of 10 percent for thoracolumbar strain.

17. Entitlement to a 10 percent rating for right shoulder sprain/strain.

18. Entitlement to an initial rating in excess of 20 percent for left shoulder sprain/strain.

19. Entitlement to an initial rating in excess of 10 percent for neck sprain and strain.

20. Entitlement to an initial rating in excess of 10 percent for right knee sprain/strain.

21. Entitlement to an initial rating in excess of 10 percent for left knee sprain/strain.

22. Entitlement to an initial rating in excess of 10 percent for right ankle sprain.

23. Entitlement to an initial compensable rating for right hallux valgus.

24. Entitlement to an initial compensable rating for left eye cortical cataract.

25. Entitlement to an initial compensable rating for acne.

26. Entitlement to an initial rating in excess of 10 percent for atrophic vaginitis.

27. Entitlement to an initial rating in excess of 50 percent for OSA with CPAP.

28. Entitlement to an initial compensable rating for vertigo.

29. Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome.

30. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome.

31. Entitlement to an initial compensable rating for residual abdominal surgical scars.

The Board notes that there is evidence of record indicating that there may be outstanding treatment records pertinent to some of the Veteran’s increased rating claims remaining on appeal.  With regard to her right shoulder sprain/strain, an August 2015 VA treatment record noted that she had right shoulder surgery scheduled at BJC HealthCare, and it was thereafter noted at her August 2016 VA shoulder and arm examination that she had undergone right shoulder arthroscopic biceps tenotomy surgery with labral debridement in August 2015; however, the records pertaining to such surgery are not currently of record in the claims file.  With regard to her right knee sprain/strain, her left knee sprain/strain, and her vertigo, an April 2014 VA examination inquiry report noted that a VA knee and lower leg examination and a VA ear condition examination, both requested in April 2014, had been “Completed”; in addition, an April 2014 VA treatment record noted the following: “Please see STL SharePoint site for exams results.  Contracted exam.”  However, these examination reports are not currently viewable in the claims file.  With regard to her left eye cortical cataract, the claims file contains Goldmann Perimeter charts for each eye dated in April 2016, but there is no report of an April 2016 VA eye examination currently in the claims file.

Moreover, after all outstanding treatment records have been obtained, new examinations should be scheduled in order to ascertain the current level of severity of each disability remaining on appeal for which the Veteran seeks an increased rating, as there is an indication that the current record does not adequately reflect the severity of these conditions in light of the need to address the following considerations (outlined below).

For the Veteran’s stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, and allergic rhinitis, in light of the Board’s finding in the instant decision that the AOJ’s severance of service connection for each of these disabilities was improper and that service connection should be restored, and considering that the most recent VA examinations for each of these disabilities took place in August 2016 (more than two years ago, and prior to the restoration date for each disability), new examinations are warranted in order to evaluate the current severity and symptoms of each of these disabilities.  In addition, for the Veteran’s iron deficiency anemia, the VA examiner should give consideration to all applicable rating criteria, as during the pendency of the instant appeal, effective December 9, 2018, VA revised the criteria for rating disabilities of the hematologic and lymphatic systems.  See 83 Fed. Reg. 54,250-259 (Oct. 29, 2018).

For the Veteran’s thoracolumbar strain, right shoulder sprain/strain, left shoulder sprain/strain, neck sprain and strain, right knee sprain/strain, left knee sprain/strain, right ankle sprain, and right hallux valgus, the VA examiner(s) should provide a medical opinion addressing any functional impairment (including the degree(s) of any additional range of motion loss) caused by flare-ups of such disability.  See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011).  At the new examination, if the VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, then the examiner must “elicit relevant information as to the [V]eteran’s flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the [V]eteran’s functional loss due to flares based on all the evidence of record, including the [V]eteran’s lay information, or explain why [he or] she could not do so.”  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

For the Veteran’s left eye cortical cataract, the VA examiner should give consideration to all applicable rating criteria, as during the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes).  See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018).

For the Veteran’s acne, the VA examiner should give consideration to all applicable rating criteria, as during the pendency of the instant appeal, effective August 13, 2018, VA revised the criteria for rating disabilities of the skin.  See 83 Fed. Reg. 32,592-601 (Jul. 13, 2018).

For the Veteran’s atrophic vaginitis, the VA examiner should provide a medical opinion addressing whether her symptoms require continuous treatment, and whether such treatment controls her symptoms.  [The Board reiterates that, during the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the gynecological system.  However, these revisions did not alter DC 7611 or the associated General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs in any way.  See 83 Fed. Reg. 15,068-074 (Apr. 9, 2018).]

For the Veteran’s OSA with CPAP, the most recent VA sleep apnea examination took place in December 2013, nearly five years ago and the record does not otherwise adequately indicate the current severity of the condition; therefore, a new examination is warranted in order to evaluate the current severity and symptoms of this disability.

For the Veteran’s vertigo, the VA examiner should provide a medical opinion addressing whether objective findings support a diagnosis of vestibular disequilibrium.

For the Veteran’s right carpal tunnel syndrome and left carpal tunnel syndrome, the most recent VA hand and fingers examination which specifically evaluated her right and left carpal tunnel syndrome took place in December 2013, nearly five years ago and the record does not otherwise adequately indicate the current severity of the conditions; therefore, a new examination is warranted in order to evaluate the current severity and symptoms of these disabilities.

For the Veteran’s residual abdominal surgery scars, the VA examiner should give consideration to all applicable rating criteria, as during the pendency of the instant appeal, effective August 13, 2018, VA revised the criteria for rating disabilities of the skin (including certain types of scars).  See 83 Fed. Reg. 32,592-601 (Jul. 13, 2018).  The VA examiner should also provide a medical opinion addressing the Veteran’s note in her April 2015 NOD which referred to “painful” scars on her abdomen.

The matters are REMANDED for the following actions:

1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated her for her claimed disabilities remaining on appeal, including all records pertaining to her August 2015 right shoulder surgery at BJC HealthCare.  Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile.

2. Obtain the Veteran’s VA treatment records for the period from October 2016 to the present, as well as the reports of any knee/lower leg and ear condition VA examinations conducted in April 2014 and any eye VA examination conducted in connection with the April 2016 Goldmann Perimeter testing.  Any negative search result should be noted in the record and communicated to the Veteran.

3. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of any current skin disability of the left upper extremity, sinusitis, enlarged heart, left hallux limitus, recurring muscle spasms in the right calf, recurring muscle spasms in the left calf, body twitching, facial twitching, burning mouth syndrome, and teeth sensitivity, and to determine the current severity of her service-connected stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, allergic rhinitis, thoracolumbar strain, right shoulder sprain/strain, left shoulder sprain/strain, neck sprain and strain, right knee sprain/strain, left knee sprain/strain, right ankle sprain, right hallux valgus, left eye cortical cataract, acne, atrophic vaginitis, OSA with CPAP, vertigo, right carpal tunnel syndrome, left carpal tunnel syndrome, and residual abdominal surgical scars.  The electronic claims file must be made available to the examiners for review in conjunction with the examinations.  All necessary tests should be performed and the results reported.

(a.) For the claimed skin disability of the left upper extremity, sinusitis, enlarged heart, left hallux limitus, recurring muscle spasms in the right calf, recurring muscle spasms in the left calf, body twitching, facial twitching, burning mouth syndrome, and teeth sensitivity:

i.	The examiner(s) must first identify all valid diagnoses of these disabilities present at any time during the pendency of the appeal period.

ii.	Next, for each such disability that is diagnosed, the examiner(s) must provide an opinion as to whether it is at least as likely as not that such disability began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of her military service (with specific consideration given to all pertinent STRs and to her allegations of continuity of symptomatology since service) – and, for any diagnosed body twitching disability and facial twitching disability, whether it is at least as likely as not that such disability is either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected PTSD with persistent depressive disorder.

iii.	Finally, for any manifestations that are not associated with a diagnosis, the examiner(s) must provide an opinion as to whether such manifestations represent an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multisymptom illness related to the Veteran’s verified service in the Southwest Asia theater of operations.

(b.) For the Veteran’s stress headaches, hypertension, valvular heart disease (mitral valve prolapse), iron deficiency anemia, and allergic rhinitis: All pertinent symptomatology and findings must be reported in detail.  Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible.  In addition, the anemia examiner should give consideration to all applicable rating criteria during the appeal period (including the versions of the hematologic and lymphatic systems rating criteria effective prior to and since December 9, 2018).

(c.) For the Veteran’s thoracolumbar strain, right shoulder sprain/strain, left shoulder sprain/strain, neck sprain and strain, right knee sprain/strain, left knee sprain/strain, right ankle sprain, and right hallux valgus: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The examiner(s) should provide a medical opinion addressing any functional impairment (including the degree(s) of any additional range of motion loss) caused by the Veteran’s reported flare-ups of these disabilities.  If the examiner(s) opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, then the examiner must elicit relevant information as to the Veteran’s flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the Veteran’s functional loss due to flares based on all of the evidence of record, including the Veteran’s lay information, or explain why he or she cannot do so.

(d.) For the Veteran’s left eye cortical cataract: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The examiner should give consideration to all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and since May 13, 2018).

(e.) For the Veteran’s acne: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The examiner should give consideration to all applicable rating criteria during the appeal period (including the versions of the skin rating criteria effective prior to and since August 13, 2018).

(f.) For the Veteran’s atrophic vaginitis: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The examiner should provide a medical opinion addressing whether the Veteran’s symptoms require continuous treatment, and whether such treatment controls her symptoms.

(g.) For the Veteran’s OSA with CPAP: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.

(h.) For the Veteran’s vertigo: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The examiner should provide a medical opinion addressing whether objective findings support a diagnosis of vestibular disequilibrium.

(i.) For the Veteran’s right carpal tunnel syndrome and left carpal tunnel syndrome: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.

(j.) For the Veteran’s residual abdominal surgery scars: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The examiner should give consideration to all applicable rating criteria during the appeal period (including the versions of the skin rating criteria effective prior to and since August 13, 2018).  The examiner should also provide a medical opinion addressing the Veteran’s note in her April 2015 NOD which referred to “painful” scars on her abdomen.

A complete rationale for all opinions must be provided.  If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation.  The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician.



 

M. SORISIO

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	L. B. Yantz, Counsel