Citation Nr: 21014122
Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 01-01 647
DATE: March 11, 2021

ORDER

Entitlement to a rating in excess of 40 percent for arthritic spurring lumbar spine (claimed as back pain) prior to January 17, 2019 is denied, with the exception of the period June 25, 2018 to October 10, 2018, when a temporary total evaluation was in effect.

Entitlement to a rating in excess of 20 percent prior to August 2, 2012, and in excess of 40 percent from August 2, 2012 for urinary incontinence is denied.

Entitlement to a 30-percent rating for left ankle fracture from April 6, 1998 to August 2, 2012 is granted, subject to the laws governing the payment of monetary benefits; entitlement to a rating in excess of 30 percent for residuals of ankle fracture with ORIF fusion and traumatic arthritis from August 2, 2012 is denied.

Entitlement to a rating in excess of 30 percent for skin rash of unknown etiology is denied.

Entitlement to a rating in excess of 10 percent for left wrist arthritis, status post-fracture, prior to April 12, 2016 is denied.

Entitlement to a 30-percent rating for left wrist arthritis, status post-fracture, from April 12, 2016 is granted, subject to the laws governing the payment of monetary benefits.

Entitlement to a rating in excess of 10 percent for status/post hemorrhoidectomy with residuals hemorrhoids is denied.

Entitlement to an effective date earlier than August 27, 2007 for the award of a 30 percent rating for skin rash unknown etiology is denied.

Entitlement to an earlier effective date of March 18, 2004 for the award of service connection for posttraumatic stress disorder (PTSD) with depression and insomnia is granted.

Entitlement to an effective date earlier than June 3, 1998 for the grant of service connection for urinary incontinence is denied.

Entitlement to an effective date earlier than April 6, 1998 for the grant of service connection left ankle fracture is denied.

Entitlement to an effective date earlier than April 6, 1998 for the grant of service connection for pes cavus is denied.

Entitlement to an effective date earlier than April 6, 1998 for the grant of service connection for arthritic spurring of the lumbar spine is denied.

Entitlement to an effective date earlier than February 28, 2002 for the grant of service connection for status/post hemorrhoidectomy with residuals hemorrhoids is denied.

Entitlement to an effective date earlier than February 28, 2002 for the grant of service connection for left wrist arthritis, status post fracture, is denied.

The application to reopen the claim of entitlement to service connection for body numbness is granted.

The appeal as to entitlement to service connection for depression (appeal of May 2000 rating decision) is dismissed.

The appeal as to entitlement to service connection for aching joints (appeal of May 2000 rating decision) is dismissed.

The appeal as to entitlement to service connection for eye injury (appeal of May 2000 rating decision) is dismissed.

The appeal as to entitlement to service connection for residuals of flash burns to face (appeal of May 2000 rating decision) is dismissed.

The appeal as to entitlement to service connection for body numbness (appeal of May 2000 rating decision) is dismissed.

The appeal as to entitlement to service connection for weight loss (appeal of May 2000 rating decision) is dismissed.

REMANDED

Entitlement to a rating in excess of 50 percent for PTSD with depression and insomnia is remanded.

Entitlement to a rating in excess of 30 percent rating for left wrist arthritis, status post-fracture, from April 12, 2016 is remanded.

Entitlement to a compensable rating prior to August 2, 2012, and to a rating in excess of 20 percent from August 2, 2012, for pes cavus associated with degenerative arthritis of the spine is remanded.

Entitlement to a separate disability rating for bowel incontinence is remanded.

Entitlement to an effective date earlier than June 3, 1998 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

Entitlement to service connection for diabetes mellitus with complications in remanded.

Entitlement to service connection for muscle spasm (over entire body) is remanded.

Entitlement to service connection for a neck disorder is remanded.

Entitlement to service connection for right-side numbness is remanded.

Entitlement to service connection for an eyes/vision disorder is remanded.

Entitlement to service connection for a left knee disorder is remanded.

Entitlement to service connection for headaches is remanded.

Entitlement to service connection for a sinus disorder is remanded.

FINDINGS OF FACT

1. Prior to January 17, 2019, the Veteran’s disability of arthritic spurring lumbar spine did not manifest as unfavorable ankylosis of the entire thoracolumbar spine.

2. Prior to August 2, 2012, the Veteran’s urinary incontinence manifested as daytime urinary frequency of approximately every 1 to 2 hours, nocturnal anuresis, and occasional nocturnal urinary incontinence.  The disability did not require the wearing of absorbent materials that needed to be changed 2 to 4 times daily; the daytime voiding interval was not less than one hour; the Veteran did not awake to void 5 or more times per night; and urinary retention did not require intermittent or continuous catheterization.

3. From August 2, 2012, the Veteran’s urinary incontinence manifested as urinary frequency of up to 7 times per night.  The voiding dysfunction did not require the use of an appliance or the wearing of absorbent materials that needed to be changed more than 4 times per day.

4. For the entire period under review (that is, both before and after August 2, 2012), the Veteran’s left ankle disability manifested as ankylosis in dorsiflexion between 0 degrees and 10 degrees; there was no ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees; or with abduction, adduction, inversion, or eversion deformity.

5. For the entire period under review, the Veteran’s skin rash of unknown etiology has not involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the prior 12-month period, and has not manifested as scars not of the head, neck, or face that cover an area or areas of 144 square inches (929 sq. cm.) or greater.

6. Prior to April 12, 2016, the Veteran’s disability of left wrist arthritis, status post-fracture, manifested mainly as painful, limited motion without ankylosis.

7. From April 12, 2016, the Veteran’s left wrist arthritis, status post-fracture, manifested, at least, as favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion.

8. For the entire period under review, the Veteran’s hemorrhoids have not manifested with fissures or with persistent bleeding and secondary anemia.

9. Prior to August 27, 2007, there was no formal claim, informal claim, or written intent to file a claim of entitlement to a rating increase for service-connected skin rash unknown etiology, and it is not factually ascertainable that an increase in the disability was first shown within the one-year period prior to August 27, 2007, based upon the applicable legal criteria and the evidence of record.

10. Prior to March 18, 2004, there is no record evidence of a claim, informal claim, or expressed written intent to file a claim to reopen the issue of entitlement to service connection for an acquired psychiatric disability.

11. Prior to June 3, 1998, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for urinary incontinence.

12. Prior to April 6, 1998, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for a left ankle fracture.

13. Prior to April 6, 1998, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for pes cavus.

14. Prior to April 6, 1998, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for a back disorder.

15. Prior to February 28, 2002, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for hemorrhoids.

16. Prior to February 28, 2002. there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for the left wrist.

17. A May 2000 rating decision denied entitlement to service connection for body numbness.  The Veteran did not submit new and material evidence within one year of notification of the decision.  At a February 2002 Board hearing, the Veteran withdrew his appeal that was initiated by a notice of disagreement of October 2000 and was perfected by the VA Form 9 of January 2001.

18. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as the issue of entitlement to service connection for depression.

19. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for aching joints.

20. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for eye injury.

21. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for residuals of flash burns to face.

22. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for body numbness.

23. In February 2002, prior to the promulgation of a decision in the appeal, the Veteran’s representative stated on the record at a Board hearing that the Veteran wished to withdraw his appeal as to entitlement to service connection for weight loss.

CONCLUSIONS OF LAW

1. Prior to January 17, 2019, the criteria for a rating in excess of 40 percent for arthritic spurring lumbar spine are not met, with the exception of the period June 25, 2018 to October 10, 2018, when a temporary total evaluation for the back was in effect.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, DC 5003- 5242.

2. Prior to August 2, 2012, the criteria for a rating in excess of 20 percent for urinary incontinence are not met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.115a, 4.115b, DC 7542.

3. From August 2, 2012, the criteria for a rating in excess of 40 percent for urinary incontinence are not met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.115a, 4.115b, DC 7542.

4. From April 6, 1998 to August 2, 2012, the criteria for a rating 30-percent rating, and not higher, for left ankle fracture are met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5270.

5. From August 2, 2012, the criteria for a rating in excess of 30-percent for residuals of ankle fracture with ORIF fusion and traumatic arthritis are not met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5270.

6. For the entire period under review, the criteria for a rating in excess of 30 percent for skin rash unknown etiology are not met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.118, DC 7806.

7. Prior to April 12, 2016, the criteria for a rating in excess of 10 percent for left wrist arthritis, status post-fracture, are not met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5215.

8. From April 12, 2016, the criteria for a 30-percent rating, and not higher, for left wrist arthritis, status post-fracture, are met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5214.

9. The criteria for rating in excess of 10 percent for status/post hemorrhoidectomy with residuals hemorrhoids are not met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code 7336.

10. The criteria for an effective date earlier than August 27, 2007 for the assignment of 30-percent rating for skin rash unknown etiology are not met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.400.

11. The criteria for an effective date of March 18, 2004, and not earlier, for the award of service connection for PTSD with depression and insomnia are met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

12. The criteria for entitlement to an effective date earlier than June 3, 1998 for the grant of service connection for urinary incontinence are not met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

13. The criteria for entitlement to an effective date earlier than April 6, 1998 for the grant of service connection for left ankle fracture are not met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

14. The criteria for entitlement to an effective date earlier than April 6, 1998 for the grant of service connection for pes cavus are not met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

15. The criteria for entitlement to an effective date earlier than April 6, 1998 for the grant of service connection for arthritic spurring of the lumbar spine are not met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

16. The criteria for entitlement to an effective date earlier than February 28, 2002 for the grant of service connection for status/post hemorrhoidectomy with residuals hemorrhoids are not met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

17. The criteria for entitlement to an effective date earlier than February 28, 2002 for the grant of service connection for left wrist arthritis, status post fracture are not met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

18. The May 2000 rating decision that denied service connection for body numbness is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

19. Evidence received since May 2000 rating decision that denied service connection for body numbness is new and material, and the claim is reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

20. The criteria for withdrawal of the issue of entitlement to service connection for depression (appeal of May 2000 rating decision) are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.

21. The criteria for withdrawal of the issue of entitlement to service connection for aching joints (appeal of May 2000 rating decision) are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.

22. The criteria for withdrawal of the issue of entitlement to service connection for eye injury (appeal of May 2000 rating decision) are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.

23. The criteria for withdrawal of the issue of entitlement to service connection for residuals of flash burns to face (appeal of May 2000 rating decision) are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.

24. The criteria for withdrawal of the issue of entitlement to service connection for body numbness (appeal of May 2000 rating decision) are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.

25. The criteria for withdrawal of the issue of entitlement to service connection for weight loss (appeal of May 2000 rating decision) are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1980 to September 1983, and from September 1990 to June 1991, including service in the Persian Gulf.  He also served in the National Guard.

The Board issued a remand order concerning one or more of the above-listed issues in March 2003, August 2003, June 2004, May 2012, and May 2018.

In February 2002, the Veteran testified at a Board hearing at which testimony was taken only as to the issues of service connection for sinusitis and headache.  In January 2012, the Board notified the Veteran that, because the veterans law judge (VLJ) who conducted the hearing was no longer employed by the Board, the Veteran had the right to an additional hearing before a different VLJ.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707 (2011).  He responded in January 2012 that he did not wish to schedule another hearing.

A rating decision of October 2018 denied entitlement to special monthly compensation (SMC) based on aid and attendance.  Following the Board’s remand of May 2018, a rating decision of October 2020 granted entitlement to SMC based on aid and attendance/housebound criteria, effective from June 25, 2001 to September 30, 2018.

Increased Rating Claims

Disability ratings assigned in accordance with VA’s Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  When a condition is specifically listed in the Rating Schedule, it may not be rated by analogy under a different diagnostic code.  See Copeland v. McDonald, 27 Vet. App. 333, 337.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  A “staged” rating will be assigned for diverse symptoms meeting the criteria for different ratings in distinct time periods.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  38 C.F.R. § 4.40.  Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing.  38 C.F.R. § 4.45.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

1. Entitlement to a rating in excess of 40 percent for arthritic spurring lumbar spine prior to January 17, 2019.

A May 2012 Board decision granted entitlement to service connection for “low back disability.”  A June 2012 rating decision, in implementing the Board’s service- connection grant, established service connection established for arthritic spurring lumbar spine (claimed as back pain), with the a 40-percent rating, effective June 3, 1998.  The Veteran filed a notice of disagreement (NOD) in August 2012 and VA Form 9 in December 2016 as to the assigned rating.

Following the Board’s remand of the issue in May 2018, a rating decision of April 2019 decreased the evaluation for degenerative arthritis of the spine (previously rated as arthritic spurring lumbar spine) from 40 percent to 10 percent, effective January 17, 2019.  On December 18, 2019, the Veteran submitted VA Form 20- 0996, Decision Review Request: Higher-Level Review.  A rating decision of April 2020 continued the 10-percent rating for degenerative arthritis of the spine, effective January 17, 2019.  The rating -reduction issue was thus processed as an appeal pursuant to the Appeals Modernization Act (AMA) and is not part of the “legacy” appeal currently before the Board.

A rating decision of October 2020 granted a temporary evaluation of 100 percent, effective June 25, 2018, based on surgical or other treatment necessitating convalescence for the back.  In light of this procedural history, the issue before the Board is entitlement to a rating in excess of 40 percent prior to January 17, 2019, with the exception of the period June 25, 2018 to October 10, 2018, when the temporary total evaluation for the back was in effect.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10- percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine that is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine.   An evaluation of 100 percent requires unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

There is also a formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes.  38 C.F.R. § 4.71a, DC 5243.  An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1).  The maximum rating is 40 percent.

The Veteran underwent a VA examination for the back in October 2008.  He reported pain in his back and numbness in both legs and feet.  Upon examination, forward flexion was limited to 50 degrees on the first attempt and 30 degrees after three attempts.  Extension was limited to 15 degrees.  For a further VA examination for the back in October 2010, he reported having intermittent pain in the center, low back area.  He stated that flare-ups of more severe back pain occur three to four times per week and may last several hours to several days.  Precipitating factors were doing any type of activity or not taking his medication.  Flare-ups were characterized by stiffness, fatigue, spasms, and weakness that cause additional functional impairment.  For both the October 2008 and the October 2010 examinations, no finding was made as to ankylosis or intervertebral disc syndrome.

The Veteran again underwent a VA examination for the back in April 2016.  He reported having intermittent pain in the low back after sitting for a prolonged period and with use, such as riding a lawn tractor or engaging in home chores.  He also had back stiffness.  He estimated his baseline pain to be 5 and his flare-up pain to be a 9 on a scale of 1 to 10.  His estimation of the loss of functional use of the back was 25 percent for the “baseline” and 75 percent during a flare-up.  During flare-ups, he felt that his back muscles were fatigued and weak.  He reportedly did not lose complete control of the bowels or bladder.  He did not use any lumbar supports at that time.

For the April 2016 examination, forward flexion was limited to 95 degrees and extension was limited to 10 degrees.  There was no additional loss of range of motion after three repetitions.  The examiner determined that pain, fatigue, and weakness significantly limit functional ability with repeated use over time and during a flare-up, but, without explanation, it was also determined that the limitation could not be described in terms of a range of motion.  There was no ankylosis and no IVDS.

In January 2019, the Veteran again underwent a VA examination for the back.  He reported back flare-ups characterized by sharp pain radiating to the buttocks and legs.  He stated that functional impairment with prolonged sitting and standing.  Upon examination, the range of motion was limited to 80 degrees for forward flexion and 15 degrees for extension.  There was no additional loss of range of motion after three repetitions.  The examiner determined that pain, fatigue, weakness, and lack of endurance significantly limit functional ability with repeated use over time and during a flare-up, but, without explanation, it was also determined that the limitation could not be described in terms of a range of motion.  There was no ankylosis and no IVDS.

The Board determines that, for the entire period prior to January 17, 2019, with the exception of the period of the total temporary rating, the preponderance of the evidence is against finding entitlement to a rating in excess of 40 percent.  No evidence suggests that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine, which would be required for a higher rating of 50 percent under the General Rating Formula.  There was also no IVDS, for which the maximum rating in any event would be 40 percent.

While the VA examiners of April 2016 and January 2019 should have attempted to estimate any additional loss of range of motion during flare-ups or with repeated use over time, as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), no evidence indicates symptoms approximating ankylosis, which would be required for a higher rating.  Ankylosis is defined as the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)).  Because the Veteran did not report immobility or consolidation of the lumbar spine during a flare-up or with repeated use over time, a remand for an addendum medical opinion pursuant to Sharp could not benefit the Veteran and is not required.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

2. Entitlement to a rating in excess of 20 percent prior to August 2, 2012, and in excess of 40 percent from August 2, 2012 for urinary incontinence.

A May 2012 Board decision granted entitlement to service connection for urinary/bowel incontinence.  In implementation of the Board’s decision, a June 2012 rating decision granted service connection for urinary incontinence.  A 20- percent rating, effective June 3, 1998, was assigned.  Nothing was noted in the rating decision as to bowel incontinence.

The Veteran appealed the assigned rating by filing a NOD in August 2012 and VA Form 9 in December 2016.  A rating decision of December 2016 increased the evaluation from 20 percent to 40 percent, effective August 2, 2012.  Because less than the maximum available benefit was awarded, the appeal remained active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Under DC 7542, neurogenic bladder is to be rated as voiding dysfunction.  38 C.F.R. § § 4.115b.  Voiding dysfunction may be rated as urine leakage, frequency, or obstructed voiding.  A 40-percent rating is assigned for urinary incontinence or leakage requiring the wearing of absorbent materials that must be changed two to four times per day.  Urinary incontinence or leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is assigned a 60-percent rating.  Urinary frequency with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20-percent evaluation. Urinary frequency with a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40-percent evaluation. Obstructed voiding characterized by urinary retention requiring intermittent or continuous catheterization warrants a 30-percent rating.  38 C.F.R. § § 4.115a.

The Board determines that the preponderance of the evidence is against finding entitlement to a rating in excess of 20 percent prior to August 2, 2012, and in excess of 40 percent from August 2, 2012 for urinary incontinence.

In July 2003, the Veteran underwent a VA examination for genitourinary disorders, specifically incontinence of urine.  He reported that he began to have problems with “losing his urine” upon returning from the Gulf War in 1990.  He stated that this happened mostly at night and that he currently was having 1 to 2 accidents a week in which he loses control of his urine and had nocturnal anuresis.  During the daytime, he reportedly needed to use the bathroom approximately 10 to 12 times per day or “once every couple of hours.”  No appliance was needed, and there was no history of surgery of the urinary tract.  The examiner’s impression was urinary incontinence which appeared to be primarily nocturnal.

In April 2008, the Veteran reported urinary incontinence “from time to time” without otherwise specifying the frequency.  An October 2008 VA examination report for the back noted the Veteran’s report of incontinence at night in which he wets himself when unable to reach the bathroom in time.  The frequency per night was not stated.

In April 2016, the Veteran underwent a VA examination for urinary tract conditions.  The diagnoses were 1) bladder disorder manifesting as urinary incontinence and 2) enlarged prostate with lower urinary tract symptoms.  The Medical History section of the report noted the Veteran’s urination symptoms as urgency, intermittent hesitancy, decreased stream force, intermittency, mild dysuria, leakage (starting one year previously, with use of pad, one pad change per day, and no pads required during the night), voiding up to 7 times during the night, and voiding every hour during the day.  The force of stream was markedly decreased, but the hesitancy was not marked.  It was stated that his initial symptoms were urgency, but that in the preceding year his symptoms changed to include intermittent urgency and obstructive symptoms.  The Veteran was found to have a neurogenic or severely dysfunctional bladder.  His voiding dysfunction causes urine leakage and requires absorbent material which must be changed less than 2 times per day.  Use of an appliance was not required, and the daytime voiding interval was less than 1 hour.  There was no history of bladder or urethral infection.

The Veteran is competent to report his experienced symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Based on the entire record, including the competent and credible lay statements, the preponderance of the evidence is against finding entitlement to a rating in excess of 20 percent prior to August 2, 2012.  During that period, the Veteran’s disability did not require the wearing of absorbent materials that needed to be changed 2 to 4 times daily; the daytime voiding interval was not less than one hour; he did not awake to void 5 or more times per night; and urinary retention did not require intermittent or continuous catheterization.  From August 2, 2012, the preponderance of the evidence is against finding entitlement to a rating in excess of 40 percent.  The Veteran’s voiding dysfunction did not require the use of an appliance or the wearing of absorbent materials that needed to be changed more than 4 times per day.

As indicated above, the Board’s May 2012 order granted entitlement to service connection for urinary/bowel incontinence.  The June 2012 rating decision that purported to implement the Board’s decision granted service connection only for urinary incontinence, without explanation as to why bowel incontinence would not be rated.  Bowel incontinence was not mentioned in the rating decision.  Because the Veteran has appealed the assigned initial rating, the Board has jurisdiction to remand the issue of whether the Veteran is entitled to a separate disability rating for his bowel incontinence.  That issue will be addressed in the Remand section below.

3. Entitlement to a rating in excess of 20 percent prior to August 2, 2012, and in excess of 30 percent from August 2, 2012, for left ankle disability.

In May 2012, the Board granted entitlement to service connection for “left ankle disability, including as secondary to the low back disability.”  A June 2012 rating decision implemented the Board’s service-connection grant.  Service connection was granted for left ankle fracture associated with arthritic spurring lumbar spine, and a 20-percent rating was assigned, effective June 3, 1998.  The Veteran filed a NOD in August 2012 and VA Form 9 in December 2016 as to the assigned rating.

A rating decision of December 2016 increased the evaluation from 20 percent to 30 percent, effective August 2, 2012, and now characterized the disability as residuals of ankle fracture with ORIF fusion and traumatic arthritis associate with degenerative arthritis of the spine.  Because less than the maximum available benefit was awarded, the appeal remained active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

A rating decision of October 2020 granted entitlement to the earlier effective date of April 6, 1998 for service connection for left ankle fracture.  With a staged rating in effect, the issue before the Board is thus entitlement to a rating in excess of 20 percent from April 6, 1998 to August 2, 2012, and in excess of 30 percent from August 2, 2012.

Under Diagnostic Code 5271, a 10-percent rating is warranted for moderate limitation of motion of the ankle, and a 20-percent rating is warranted for marked limitation of motion.  Under Diagnostic Code 5270, a 30-percent evaluation is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, and a 40-percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity.  38 C.F.R. § 4.71a, DCs 5270, 5271.  The normal range of motion of the ankles is 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion.  38 C.F.R. § 4.71, Plate II.

To date, the left ankle disability has been rated at 20 percent under DC 5003-5271 for the period April 6, 1998 to August 2, 2012, and at 30 percent under DC 5003- 5270 from August 2, 2012.  As explained below, the Board determines that, for the period prior to August 2, 2012, the criteria for a higher, 30-percent rating are met.  For the period from August 2, 2012, the preponderance of the evidence is against finding entitlement to a rating in excess of 30 percent.

A post-service injury to the left ankle has been attributed to the Veteran’s service- connected back disability.  He underwent left ankle surgery in June 1996, following the post-service injury.  It appears from the medical evidence of record that the Veteran’s left ankle has been effectively ankylosed at 0 degrees from the date of the 1996 operation, which was an open reduction and internal fusion (ORIF) with primary fusion of the tibiotalar joint.  A VA treatment record of January 1999 noted “rigid painless fusion” upon examination of the left ankle.  A June 2003 VA examination report for the feet noted that there was no subtalar or ankle motion and that the left ankle was fused in the neutral position in a sagittal plane.  In November 2007, the notation in a VA treatment record was again that the left ankle was “fused without motion.”  There is no evidence of any motion of the left ankle joint in the relevant period prior to August 2, 2012, and any reasonable doubt as to the matter is resolved in the Veteran’s favor.

Because there was ankylosis of the left ankle in dorsiflexion between 0 degrees and 10 degrees prior to August 2, 2012, a 30-percent rating is warranted under DC 5270.  The criteria for a higher, 40-percent rating are not approximated, because the left ankle was not ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity.

From August 2, 2012, the preponderance of the evidence is against finding entitlement to a higher, 40-percent rating.  Specifically, the left ankle was not ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity.  An April 2016 VA examination report for the ankles found that the left ankle was surgically fixed (ankylotic) in a 90-degree, functionally neutral position.  There was no range of motion for dorsiflexion or plantar flexion (“0 degrees to 0 degrees”).  Upon VA examination of the ankles again in July 2020, it was noted that the Veteran had “pinning” in his left ankle and could plantar flex and dorsiflex only his toes on the left.  The examiner noted that the pinning was performed during the prior ORIF surgical procedure, when the Veteran had a left ankle fracture.  For the examination, full plantar flexion and dorsiflexion were not able to be performed on the left ankle.  The examiner noted that, given the pinning and prior surgical intervention on the left ankle, the Veteran was completely unable to plantar flex or dorsiflex the left ankle, which was “fixed.”  The “degrees” found for ankylosis in plantar flexion and in dorsiflexion were 0 (zero).  There was no abduction, inversion, or eversion deformity concerning left ankle ankylosis.

The Veteran is competent to report his experienced symptoms of the ankles.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Based on the entire record, including competent and credible lay statements, the Veteran is entitled to a higher, 30-percent rating prior to August 2, 2012, and the preponderance of the evidence is against finding entitlement to a higher, 40-percent rating at any time period under review.

4. Entitlement to a rating in excess of 30 percent for skin rash unknown etiology.

A rating decision of June 1998 granted service connection for skin rash of unknown etiology.  A 10-percent evaluation, effective November 2, 1994, was established.

The Veteran filed a claim for rating increased by a statement that was dated August 13, 2007, and was received by VA on August 27, 2007.  A rating decision of October 2008 increased the rating from 10 percent to 30 percent, effective August 13, 2007.  The Veteran filed a NOD in October 2008.  A June 2011 statement of the case continued the 30-percent rating and changed the effective date of the increase from August 13, 2007 (the date of the statement seeking a rating increase) to August 27, 2007 (the date on which the statement was received).  The Veteran was informed that the adjusted date would not affect his disability compensation payment.  An appeal to the Board as to the rating was perfected with the filing of VA Form 9 in July 2011.

The Veteran’s disability has been rated under DC 7806, which relates to dermatitis or eczema.  Under DC 7806, a 10-percent rating is warranted where at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30-percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60-percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period.  38 C.F.R. § 4.118, DC 7806.

DC 7806 also provides that the skin condition can be rated based on disfigurement of the head, face, or neck (DC 7800) or as scars under DCs 7801-7805, depending upon the predominant disability.  38 C.F.R. § 4.118.  Revised provisions for evaluating scars were enacted effective August 13, 2018.  83 Fed. Reg. 32,592 (July 13, 2018).  The amendments, in pertinent part, amended Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones rather than by extremity.  There were no changes to Diagnostic Codes 7800, 7804, or 7805, which are the same both prior to, and after, August 13, 2018.

Another revision of the amendments of August 13, 2018 was that disabilities evaluated under DC 7806 should be evaluated under the General Rating Formula for the Skin.  83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018).  The Board will consider the Veteran’s claim under both the old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied.  If more favorable, the new criteria will be applied only from August 13, 2018, when the regulations became effective.

The General Rating Formula for the Skin provides that a 30-percent rating is warranted for at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period.  A 60-percent rating will be warranted where there is at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period.  The General Rating Formula further provides that, depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805).

The Veteran underwent a VA examination in March 2008.  He reported that he had been diagnosed with chronic folliculitis in areas exposed to the sun; that his skin condition is located on the arms, back, and legs; that his symptoms occurred intermittently, as often as every two weeks, with each occurrence lasting two weeks.  Over the past year, the attacks occurred monthly, and he had used topical medication.  Upon physical examination, the skin condition folliculitis was diagnosed.  The location was the arms, back, and legs.  There was hyperpigmentation of more than six square inches and abnormal texture of more than six square inches.  The skin lesion was 0 percent in the exposed area, and the skin lesion coverage relative to the whole body was 25 percent.  There was no scar, ulceration, exfoliation, crusting, disfigurement, tissue loss, induration, inflexibility, hypopigmentation, or limitation of motion.  The skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition.

The Veteran underwent a VA examination for his skin rash again in May 2011.  He reported having eczema affecting mostly his back and bilateral arms.  He used over-the-counter Calamine lotion when he had a breakout, approximately 3 times per month over the preceding year.  Hydrocortisone cream was not used.  There were no constitutionals symptoms of the rash and no neoplasm of the skin.  Upon physical examination, the diagnosis was eczema affecting 0 percent of body area and 5 percent of total body area.  Coloration of the skin was normal.  There were patches of dry skin on the bilateral arms.  There were no lesions, excoriation, scarring, or breakdown of the skin.

The Veteran underwent a further VA examination for skin disease in April 2016.  He reported having a skin condition mostly on his chest and back mostly and to a lesser extent on his arms.  It was described as mildly pruritic; he tried not to scratch because doing so caused a burning and more intense pruritis.  He reportedly applied calamine lotion and stated that the skin condition becomes “a bit worse” in the summer.  He had peroxide applications but found that they did not help.

Upon examination in April 2016, the Veteran was found to have eczema as a visible skin condition having a total exposed body area of approximately 5 percent to less than 20 percent, and an exposed body area of 0 percent (“none”).   The specific diagnosis and described appearance and location was: hyperpigmented, flat patches located over the trunk and arms that appeared “perhaps 65 percent less prominent than on photos in the VBMS file from 5/19/11.”  There was no scarring or skin neoplasms, nor were there systemic manifestations due to any skin disease.  There was no disfigurement of the head, face, or neck.

In the past 12 months, the Veteran’s skin condition had been given 6 weeks or more of not-constant treatment with over-the-counter calamine lotion.  The examiner’s response was negative as to whether the Veteran had had within the past 12 months any treatments or procedures other than systemic or topical medications for exfoliative dermatitis or papulosquamous disorders, or a debilitating or non-debilitating episodes due to cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis.

The Board determines that, under both the prior and current rating criteria. the preponderance of the evidence is against finding entitlement to a higher, 40-percent or 60-percent rating at any time during the period under review.  Specifically, the preponderance of the evidence is against finding that the skin disability involved more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the prior 12-month period.  The Veteran does not have deep and nonlinear scars not of the head, neck, or face that cover an area or areas of 144 square inches (929 sq. cm.) or greater.

Furthermore, there are no characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period.

No medical evidence suggests that the Veteran’s use of calamine lotion has been systemic therapy within the meaning of the criteria for a higher, 60-percent rating.  Systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.  See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).

5. Entitlement to a rating in excess of 10 percent for left wrist arthritis, status post-fracture.

A rating decision of July 2011 granted entitlement to service connection for left wrist arthritis, status post-fracture.  A 10-percent evaluation, effective February 28, 2002, was assigned.  The Veteran filed a NOD in August 2011 and VA Form 9 in October 2011 as to the assigned rating.

Under Diagnostic Code (DC) 5215, for the major wrist joint, limitation of motion of dorsiflexion less than 15 degrees will be rated at 10 percent, and palmar flexion limited in line with forearm will be rated at 10 percent.  Under DC 5214, for the major wrist joint, a 50-percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation; a 40-percent rating is warranted for ankylosis of any other position, except favorable; and a 30-percent rating is warranted for favorable ankylosis in 20 degrees to 30 degrees dorsiflexion.  38 C.F.R. § 4.71a, DCs 5214, 5215.  A note to DC 5214 states that extremely unfavorable ankylosis will be rated as loss of use hands under DC 5125.  DC 5125 provides for a rating of 70 percent for loss of use of the major hand.  38 C.F.R. § 4.71a, DC 5125.

Normal limitation of range of motion is 70 degrees for dorsiflexion (extension), 80 degrees for palmar flexion, 45 degrees for ulnar deviation, and 20 degrees for radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I.  Ankylosis is defined as the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)).

In June 2011, the Veteran underwent a VA examination for his left wrist.  He stated that he is left-handed.  He reported that his left wrist bothers him intermittently, usually in relation to cold or rainy weather.  He rated the pain during a flare-up as 9 on a scale of 1 to 10.  He reported having pain, additional limitation of motion, weakness, stiffness, giving away, catching, and swelling during a flare-up.  Upon examination, the left wrist dorsiflexion was limited to 70 degrees, and palmar flexion was limited to 80 degrees.  The left wrist radially deviated to 15 degrees, with mild pain in the last 10 degrees.  Ulnar deviation was 30 degrees with mild pain in the last 10 degrees.  For none of the motions was there additional loss of range of motion with repetitions.  The impression was mild degenerative arthritis and mild limitation of motion of the left wrist.  The functional impairment was characterized as mild.

In April 2016, the Veteran again underwent a VA examination for wrist conditions.  He reported constant stiffness that is worsened by “cold-damp” weather, crepitus with use, pain at the center of the anterior wrist-hand junction, 50 percent loss in overall use of the left wrist on a “baseline” day, the left wrist locking-up when he attempts to lift more than 10 pounds, stiffness and pain during flare-ups, and his estimation of a 75 to 100 percent loss of use of the left wrist during flare-ups.  Upon examination in April 2016, palmar flexion was 45 degrees, dorsiflexion was 50 degrees, ulnar deviation was 25 degrees, and radial deviation was 10 degrees.  There was no additional loss of function or range of motion after three repetitions.  There was favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion.

Upon review of the entire record, the Board determines that, prior to April 12, 2016 (the date of the latest VA examination), the preponderance of the evidence is against finding entitlement to a rating in excess of 10 percent.  During this period, no evidence indicates ankylosis of the left wrist, which is required for a higher rating under DC 5214.

The April 2016 VA examination report found favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion.  Therefore, the criteria for a higher, 30-percent rating are met from April 12, 2016 under DC 5214.  Because the criteria for a 30-percent rating are met under the current record, the Board is able to grant a rating increase at this time.  Currently, the evidence does not approximate the criteria for entitlement to a rating in excess of 30-percent; there is insufficient evidence of more severe ankylosis under DC 5214.  However, as explained in the Remand section below, the April 2016 VA examination is not completely adequate.  Therefore, the Board will remand the issue of whether the Veteran is entitled to a rating in excess of 30 percent from April 12, 2016.

6. Entitlement to a rating in excess of 10 percent for status/post hemorrhoidectomy with residuals hemorrhoids.

A rating decision of October 2008 granted entitlement to service connection for status/post hemorrhoidectomy with residuals hemorrhoids.  A 10-percent evaluation, with an effective date of February 28, 2002, was established.  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011 as to the assigned rating.

Hemorrhoids are rated under Diagnostic Code 7336, under which mild or moderate external or internal hemorrhoids warrant a noncompensable rating.  Large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences warrant a 10-percent rating.  Hemorrhoids with fissures or with persistent bleeding and secondary anemia warrant a rating of 20 percent.  38 C.F.R. § 4.114, DC 7336.

The Veteran underwent a VA examination in September 2008.  He reported hemorrhoids which recur “frequently,” diarrhea, swelling, and leakage of stool that occurs “1/3 to 2/3 of the day in slight amounts” without need of a pad.  There was no anal itching, pain, tenesmus, or perianal discharge.  There has been no surgery.  The Veteran used over-the-counter medication.  He said that there was no functional impairment caused by the condition.  Upon examination, there were external hemorrhoids located at 6:00 and 12:00, and they were reducible.  There was no evidence of bleeding, thrombosis, or frequent recurrence, without excessive redundant tissue.  The examiner also noted no evidence of ulceration, fissures, reduction of lumen, rectal tonus, trauma, rectal bleeding, proctitis, infection, spinal cord injury, obstetrical injury, or protrusion or loss of sphincter control.  The rectum condition did not cause significant anemia.  The examiner noted hemorrhoids and a history of surgery as the “subjective factors” and hemorrhoids on exam as the “objective factors.”  The diagnosis was status post hemorrhoidectomy with residuals of hemorrhoids.

In May 2011, the Veteran underwent a rectum and anus examination.  It was noted that he had had a hemorrhoidectomy in the mid-1990s.  He reported to the examiner current symptoms of anal itching, diarrhea at times with pain, tenesmus, swelling, and perianal discharge of bleeding.  He reported fecal leakage at times “but no real incontinence.”  No absorbent material was used.  The Veteran reported using Tucks pads and Preparation H occasionally.  There was no rectal prolapse. He also denied a history of neoplasm, anal infections or proctitis, and anal fistula.  The Veteran stated that his hemorrhoids did not limit his activities of daily living.  Due to his hemorrhoids, he would switch positions and stop at different intervals when driving in order to get out and walk around.

Upon examination, there were two external hemorrhoids: one at 4:00 and one at 11:00.  There were “non-thromboses,” no bleeding, and no other skin lesions or irritations around the rectum noted on physical examination.  The rectal sphincter tone was strong.  The prostate was described as smooth, non-tender, non-enlarged, and having a rubbery consistency.  There were no discrete nodularities and no stool in rectum for hemoccult.  The diagnosis was: “status post hemorrhoidectomy; external, noted on physical examination.  No bleeding noted.”

The Veteran underwent a VA examination again in April 2016.  He reported that his hemorrhoids were at present asymptomatic and that, as long as he kept his stool soft, he did not need to use hemorrhoidal preparations.  His treatment plan did not include taking continuous medication for hemorrhoids.  Physical examination disclosed small or moderate external hemorrhoids.  There were no scars and no other pertinent findings, signs, or symptoms.

The preponderance of the evidence is against finding entitlement to a 20-percent rating, because the Veteran’s hemorrhoids do not manifest with fissures or with persistent bleeding and secondary anemia.  The Veteran, as a layperson, is competent to report the symptoms that he has experienced.  See Layno v. Brown, 6 Vet. App. 465 (1994).  He does not allege experiencing the symptoms that would warrant a higher, 20-percent rating under DC 7336, and such symptoms were not found upon examination.

Earlier Effective Date Claims

Generally, the effective date of an award of disability compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  A claim is a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim.  38 C.F.R. § 3.155(a).  When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits.  See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date.  38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2).  If the evidence reflects that the increase in severity first occurred more than one year before the date of the claim, 38 C.F.R. § 3.400(o)(2) does not apply, and the effective date is the date of the claim as under the general effective- date rules.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

7. Entitlement to an effective date earlier than August 27, 2007 for the award of a 30-rating for skin rash unknown etiology.

A rating decision of June 1998 granted service connection for skin rash of unknown etiology.  A 10-percent evaluation, effective November 2, 1994, was established.  A rating decision of May 2000 continued the 10-percent rating.  The Veteran did not file a NOD with respect to the effective date of service connection established by the June 1998 rating decision.

The Veteran filed a claim for rating increase by a statement that was dated August 13, 2007 and received by VA on August 27, 2007.  A rating decision of October 2008 increased the rating from 10 percent to 30 percent, effective August 13, 2007.  In October 2008, the Veteran filed a NOD as to the effective date of the rating increase.  A June 2011 statement of the case continued the 30-percent rating and changed the effective date of the increase from August 13, 2007 (the date written on the statement seeking a rating increase) to August 27, 2007 (the date on which the statement was received).  The Veteran was informed that the adjusted date would not affect his disability compensation payment.  An appeal to the Board as to the effective date of the rating increase was perfected with the filing of VA Form 9 in July 2011.

There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for a rating increase for service-connected skin rash prior to August 27, 2007.  No filing made prior to August 27, 2007 approximates the criteria of a formal or informal claim for an increased rating for skin rash.  Furthermore, upon a review of the entire record, it is not factually ascertainable that an increase in disability was shown under the applicable legal criteria within the one-year period prior to August 27, 2007.  Therefore, a preponderance of the evidence is against finding entitlement to an effective date earlier than August 27, 2007 for the award of a 30-percent rating for skin rash unknown etiology, and the appeal as to an earlier effective date must be denied.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

8. Entitlement to an effective date earlier than March 22, 2004 for the grant of service connection for PTSD with depression and insomnia.

In July 1994, the Veteran filed a service-connection claim for PTSD, which was denied by a rating decision of September 1995.  In June 1998, the Veteran filed a service-connection claim for depression.  A rating decision of May 2000 denied entitlement to service connection for depression on the grounds that new and material evidence had not been received.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.

At a February 2002 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal as to whether new and material evidence had been received to reopen the claim of entitlement to service connection for depression.  As addressed in a section below, the Board no longer has jurisdiction to review that appeal (initiated by the October 2000 NOD), and it will be dismissed.

On March 18, 2004, VA received a medical statement of Dr. B. T. that diagnosed the Veteran as having depression and PTSD.  Also received on that date was a website article entitled, “PTSD and Physical Health.”  A facsimile cover sheet stated that the latter evidence should be considered in connection with the Veteran’s “pending claims,” that a medical opinion diagnosing the Veteran with PTSD had been submitted previously, that the Veteran requested the Board to consider that his conditions may be secondary to “service-related PTSD,” and that additional evidence and argument would follow.  In a statement received on April 25, 2004, the Veteran asserted that his current depression is related to his military service.

An October 2008 rating decision noted that a request to reopen a previously denied claim for PTSD had been received by VA on March 18, 2004.  The claim was denied on the basis that new and material evidence had not been submitted.  The analysis was limited to PTSD and did not discuss whether the Veteran had an acquired psychiatric disability other than PTSD.  The Veteran filed a NOD in October 2008 as to “service connection for psychiatric condition(s).”

A rating decision of July 2011 granted entitlement to service connection for posttraumatic stress disorder with depression and insomnia.  A 50- percent rating, effective March 22, 2004, was established.  The Veteran filed a NOD in August 2011 and VA Form 9 in October 2011 as to the effective date of service connection.  A rating decision of November 2020 (noting that a special review of the Veteran’s file had been mandated in April 1998) denied entitlement to an earlier effective date for service connection for posttraumatic stress disorder with depression and insomnia.

The effective date of an award of disability compensation based on a claim reopened after final disallowance is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  In this case, both the September 1995 rating decision that denied service connection for PTSD and the May 2000 rating decision that denied service connection for depression became final, and the Veteran filed an informal claim to reopen on March 18, 2004.  The written communication on that date indicated an intent to apply for a VA benefit and identified the benefit sought.  There is no record evidence of a claim, informal claim, or expressed written intent to file a claim to reopen the issue of entitlement to service connection for an acquired psychiatric disability prior to March 18, 2004.

The Veteran’s entitlement to service connection for PTSD arose following his exposure to stressors during the active duty service that ended in June 1991.  Because his claim to reopen was later than the date that entitlement arose, the appropriate effective date for service connection granted by the rating decision of July 2011 is the date that the claim was received, which was March 18, 2004, not March 22, 2004.  To that extent, the claim of entitlement to an earlier effective date is granted.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

9. Entitlement to an effective date earlier than June 3, 1998 for urinary incontinence.

In a filing of June 3, 1998, the Veteran referenced occasional loss of “control over body functions” and a resulting need to change his clothes.  A May 2000 rating decision denied entitlement to service connection for “loss of urine/bowel.”  The entry on the rating decision code sheet, however, was a denial of service connection for “loss of urine” only.  Following the Veteran’s October 2000 notice of disagreement, a November 2000 statement of the case continued a denial of service connection for “loss of urine/bowel.”  A VA Form 9 was filed in January 2001 as to all issues listed on the statement of the case.

A May 2012 Board decision granted entitlement to service connection for urinary/bowel incontinence.  In implementation of the Board’s decision, a June 2012 rating decision granted service connection for urinary incontinence, effective June 3, 1998.  The Veteran filed a NOD in August 2012 and VA Form 9 in December 2016 as to the effective date for the grant of service connection for urinary incontinence.

There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for urinary/bowel incontinence prior to June 3, 1998.  Generally, the effective date of an award of disability compensation is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  A review of the record indicates no filing made prior to June 3, 1998 that approximates the criteria of a formal or informal claim for urinary/bowel incontinence.  Therefore, the assignment of an effective date earlier than June 3, 1998 for service-connected urinary incontinence is precluded, and the appeal as to an earlier effective date must be denied.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

10. Entitlement to an effective date earlier than April 6, 1998 for the grant of service connection for left ankle fracture.

A rating decision of May 2000 denied entitlement to service connection for left ankle fracture.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  In May 2012, the Board granted entitlement to service connection for “left ankle disability, including as secondary to the low back disability.”  A June 2012 rating decision, in implementing the Board’s order, granted service connection for left ankle fracture associated with arthritic spurring lumbar spine, and a 20-percent rating was assigned, effective June 3, 1998.  The Veteran filed a NOD in August 2012 and VA Form 9 in December 2016 as to the effective date of service connection.

A rating decision of December 2016 (which increased the evaluation from 20 percent to 30 percent, effective August 2, 2012) re-characterized the disability as residuals of ankle fracture with ORIF fusion and traumatic arthritis associate with degenerative arthritis of the spine.

Following the Board’s remand of the earlier-effective-date issue in May 2018, a rating decision of October 2020 granted entitlement to an earlier effective date of April 6, 1998 for service connection for left ankle fracture.  The basis of the grant was clear and unmistakable error in the June 2012 rating decision that assigned June 3, 1998 as the effective date.

There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for a left ankle prior to April 6, 1998.  An October 1994 filing of the Veteran complained of aching joints in the legs, and a rating decision of September 1995 denied entitlement to service connection for body numbness, aching joints, and rash due to undiagnosed illness.  Regardless of whether the filing of April 6, 1998 is considered to be an original claim or a claim reopened after final disallowance, the law still requires that the effective date of the award of disability compensation be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

The effective date of service connection is based not on the date that the disability began, but rather on the date that the claim was received.  A review of the record indicates no filing made prior to April 6, 1998 that approximates the criteria of a formal or informal claim for a left ankle disorder.  Therefore, the assignment of an effective date earlier than April 6, 1998 for the service-connected left ankle disability is precluded, and the appeal as to an earlier effective date must be denied.

11. Entitlement to an effective date earlier than April 6, 1998 for service connection for pes cavus.

Following the Veteran’s claim of April 6, 1998, a rating decision of May 2000 denied entitlement to service connection for “pes cavus (claimed as feet).”  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.

In May 2012, the Board granted entitlement to service connection for “pes cavus disability, including as secondary to the low back disability and left ankle disability.”  In implementation of the Board’s decision, a June 2012 rating decision granted service connection for “pes cavus associated with arthritic spurring lumbar spine (claimed as back pain).”  A noncompensable evaluation and effective date of June 3, 1998 were established.  The Veteran filed a NOD in August 2012 and VA Form 9 in December 2016 as to the effective date of service connection.

Following the Board’s remand of the earlier-effective-date issue in May 2018, a rating decision of October 2020 granted entitlement to an earlier effective date of April 6, 1998 for service connection for pes cavus.  The basis of the grant was clear and unmistakable error in the June 2012 rating decision that assigned June 3, 1998 as the effective date.

There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for a foot disorder prior to April 6, 1998. Generally, the effective date of an award of disability compensation is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  A review of the record indicates no filing made prior to April 6, 1998 that approximates the criteria of a formal or informal claim relating to the feet.  Therefore, the assignment of an effective date earlier than April 6, 1998 for service-connected pes cavus is precluded, and the appeal as to an earlier effective date must be denied.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

12. Entitlement to an effective date earlier than April 6, 1998 for grant of service connection for arthritic spurring of lumbar spine.

A rating decision of May 2000 denied entitlement to service connection for arthritic spurring lumbar spine.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.

In March 2003, the Board denied service connection for arthritis of the lumbar spine.  In December 2003, pursuant to a joint motion for remand, the United States Court of Appeals for Veterans Claims (CAVC) vacated the Board’s March 2003 denial of service connection and remanded the claim for readjudication consistent with the motion.  The Board in turn remanded the claim in June 2004 for further development.

A May 2012 Board decision granted entitlement to service connection for “low back disability.”  A June 2012 rating decision implemented the Board’s service- connection grant, and service connection was established for arthritic spurring lumbar spine (claimed as back pain).  A 40-percent rating, effective June 3, 1998 was assigned.  The Veteran filed a NOD in August 2012 and VA Form 9 in December 2016 as to the effective date of the award.

Following the Board’s remand of May 2018, a rating decision of October 2020 granted entitlement to an earlier effective date of service connection, namely April 6, 1998.  It was determined that a clear and unmistakable error had occurred in the rating decision of June 2012 that established June 3, 1998 as the effective date.

There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for a back disorder prior to April 6, 1998.  For an award of compensation based on an original claim, the law provides that the effective date of service connection is based not on the date that the disability began, but rather on the date that the claim was received.  A review of the record indicates no filing made prior to April 6, 1998 that approximates the criteria of a formal or informal claim for a back disorder.  Therefore, the assignment of an effective date earlier than April 6, 1998 for the service-connected back disability is precluded, and the appeal as to an earlier effective date must be denied.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

13.  Entitlement to an effective date earlier than February 28, 2002 for service connection for status/post hemorrhoidectomy with residuals hemorrhoids.

On February 28, 2002, the Veteran filed a service-connection claim for hemorrhoids.  A rating decision of October 2008 granted entitlement to service connection for status/post hemorrhoidectomy with residuals hemorrhoids.  A 10- percent evaluation, with an effective date of February 28, 2002, was established.  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011 as to the effective date of service connection.

There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for hemorrhoids prior to February 28, 2002. Generally, the effective date of an award of disability compensation is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  A review of the record indicates no filing made prior to February 28, 2002 that approximates the criteria of a formal or informal claim relating to the feet.  Therefore, the assignment of an effective date earlier than February 28, 2002 for the service-connected hemorrhoids disability is precluded, and the appeal as to an earlier effective date must be denied.

14. Entitlement to an effective date earlier than February 28, 2002 for the grant of entitlement to service connection for left wrist arthritis, status post fracture.

On February 28, 2002, the Veteran filed a service-connection claim for residuals of left wrist fracture, which was denied by a rating decision of October 2008.  The Veteran filed a NOD in October 2008.  A rating decision of July 2011 granted entitlement to service connection for left wrist arthritis, status-post fracture.  A 10- percent evaluation, effective February 28, 2002, was assigned.  The Veteran appealed as to the effective date of service connection by filing a NOD in August 2011 and VA Form 9 in October 2011.

Generally, the effective date of an award of disability compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  A review of the record indicates no filing made prior to February 28, 2002 that approximates the criteria of a formal or informal claim relating to the left wrist.  Therefore, the assignment of an effective date earlier than February 28, 2002 for service-connected for left wrist arthritis, status post fracture, is precluded, and the appeal as to an earlier effective date must be denied.

Requests to Reopen Claims

Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  An exception provides that VA shall reopen a disallowed claim if new and material evidence is presented or secured with respect to the claim.  38 U.S.C. § 5108.  VA will generally presume the credibility of the evidence in determining whether it is new and material.  See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  The threshold for determining whether new and material evidence has been submitted is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).  The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

15.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for body numbness.

A rating decision of June 1998 denied service connection for “body numbness due to undiagnosed illness.”  The Veteran did not timely appeal the rating decision nor submit new and material evidence within one year of notification of the decision, which became final.  8 U.S.C. § 7105; 38 C.F.R. § 20.1103.

A filing of December 1999 was construed as a request to reopen the service-connection claim as to body numbness.  A rating decision of May 2000 denied entitlement to service connection for body numbness on the grounds that new and material evidence had not been received.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, the Veteran withdrew the issue of entitlement to service connection for body numbness.

In a filing of August 2007, the Veteran cited numbness on the right side of his body from the shoulder to the feet.  He also reported numbness in his feet and toes.  A rating decision of October 2008 denied service connection for right side numbness, upper extremity (claimed as right side numbness from shoulders to foot including the right leg).  It was determined that a new claim had been received in December 2005 and August 2007.  There was no discussion of the prior rating decisions of June 1998 and May 2000.  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011.

A May 2012 order of the Board remanded the issue of entitlement to service connection for right side numbness of the upper extremity.  A supplemental statement of the case of November 2020 continued to the deny the claim, and it has been returned to the Board for further appellate review.

The Board determines that the filings of December 2005 and August 2007 represent not a new claim but a claim to reopen the previous denial of service connection for body numbness.  The Veteran is alleging essentially the same symptom (numbness) for which service connection was previously denied.  Although the agency of original jurisdiction considered the Veteran’s service connection claim on the merits, the Board still must address the issue of whether new and material evidence has been received.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007);

A rating decision of May 2000 denied entitlement to service connection for body numbness.  The basis for the denial was the absence of new and material evidence following the prior, final denial of June 1998.  The Veteran appealed the decision but withdrew the appeal on the record at a Board hearing of February 2002.  Accordingly, the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

The basis for the denial of service connection in May 2000 was that there was “no medical evidence in service to link the current arthritic findings, claimed as joint pains in legs and hips or numbness in the body.”  Evidence added to the record since the May 2000 decision includes a June 2012 rating decision that granted service connection for arthritic spurring of the lumbar spine.  Furthermore, a rating decision of April 2019 granted service connection for radiculopathy of the left and right lower extremities.  The added evidence, because it relates to the fact of current neurological symptoms that are caused or aggravated by a service-connected disability, is probative of an unestablished element of service connection.  Finding that new and material evidence has been received, the Board reopens the claim of entitlement to service connection for body numbness.

Service Connection

Service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Generally, service connection requires a present disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appellant or the appellant’s authorized representative may withdraw an appeal as to any or all issues involved in the appeal.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  A withdrawal is effective upon receipt.  Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and substantive appeal as to all issues to which the withdrawal applies.  38 C.F.R. § 20.204(c).

The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

16.  Entitlement to service connection for depression (appeal of May 2000 rating decision).

A rating decision of May 2000 denied entitlement to service connection for depression.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal.  Therefore, there remains no allegation of an error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the appeal, and it will be dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(c).

17.  Entitlement to service connection for aching joints (appeal of May 2000 rating decision).

A rating decision of May 2000 denied entitlement to service connection for aching joints.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal.  Therefore, there remains no allegation of an error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the appeal, and it will be dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(c).

Although a May 2018 Board order remanded a claim for entitlement to service connection for aching joints, to include a bilateral hip disorder, no such issue was on appeal before the Board at that time as a result of the withdrawal of the issue at the February 2002 Board hearing.  When a claim is withdrawn, it ceases to exist.  See Crosby v. West, 17 Vet. App. 356 (2000) (citing Hanson v. Brown, 9 Vet. App. 29, 32 (1996).

18.  Entitlement to service connection for eye injury (appeal of May 2000 rating decision).

A rating decision of May 2000 denied entitlement to service connection for “eye injury.”  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, he withdrew the appeal.  Therefore, there remains no allegation of an error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the appeal, and it will be dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(c).

19.  Entitlement to service connection for residual flash burns to face (appeal of May 2000 rating decision).

A rating decision of May 2000 denied entitlement to service connection for residuals of flash burns to face.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, he withdrew the appeal.  Therefore, there remains no allegation of an error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the appeal, and it will be dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(c).

20.  Entitlement to service connection for body numbness (appeal of May 2000 rating decision).

A rating decision of May 2000 denied entitlement to service connection for body numbness.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, he withdrew the appeal.  Therefore, there remains no allegation of an error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the appeal, and it will be dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(c).

21. Entitlement to service connection for weight loss (appeal of May 2000 rating decision).

A rating decision of May 2000 denied entitlement to service connection for weight loss.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.  At a February 2002 Board hearing, he withdrew the appeal.  Therefore, there remains no allegation of an error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the appeal, and it will be dismissed.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(c).

Although a May 2018 Board order remanded the claim for entitlement to service connection for weight loss, the Board had no jurisdiction over the issue at that time as a result of the withdrawal of the issue at the February 2002 Board hearing.    When a claim is withdrawn, it ceases to exist.  See Crosby v. West, 17 Vet. App. 356 (2000) (citing Hanson v. Brown, 9 Vet. App. 29, 32 (1996).

REASONS FOR REMAND

22. Entitlement to a rating in excess of 50 percent for PTSD with depression and insomnia.

A rating decision of July 2011 granted entitlement to service connection for PTSD with depression and insomnia.  A 50-percent evaluation, effective March 22, 2004, was assigned.  The Veteran filed a NOD in August 2011 and VA Form 9 in October 2011 as to the assigned rating.

The Board remanded the issue in May 2012.  A supplemental statement of the case was issued in November 2020.  A November 2020 rating decision denied entitlement to a rating in excess of 50 percent.  It was noted that a special review of the Veteran’s file had been mandated in April 1998.

The Veteran last underwent a VA examination for PTSD in March 2016.  In the report, the examiner initially noted the PTSD diagnosis.  No response was given by the examiner to the form question as to medical diagnoses relevant to the understanding or management of the mental health disorder.  The record reflects that a previous VA examination report for PTSD, dated May 2011, diagnosed not only PTSD, but two additional disorders under the DSM-IV: “depressive disorder, not otherwise specified, secondary to PTSD as well as multiple medical problems;” and “alcohol dependence, in remission at this time.”  The March 2016 VA examination report is inadequate, because the examiner noted only one historical diagnosis, when, in fact, the Veteran has been diagnosed with more than one acquired psychiatric disability.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

In a statement of December 2016, the Veteran argues that the VA examination reports of record are inadequate for failing to discuss and consider relevant medical literature, the DSM-IV, VA rating requirements, the VA Clinician’s Guide, and the intertwined nature of all his medical and psychiatric conditions.  The Veteran argues that an adequate VA examination for mental disorders requires that the examiner consider medical literature submitted by the Veteran in October 2007 in relation to PTSD and in October 2010 in relation to insomnia as a disorder distinct from PTSD.  The March 2016 VA examination report does not discuss the secondary literature submitted by the Veteran.

A medical article or treatise can provide important support when combined with an opinion of a medical professional.  38 C.F.R. § 3.159(a)(1) (competent medical evidence may include medical and scientific articles and research reports or analyses); see also Mattern v. West, 12 Vet. App. 222, 228 (1999).  When evaluating such evidence, the Board cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit-of-the-doubt rule under 38 U.S.C. § 5107 (b).  See Wise v. Shinseki¸ 26 Vet. App. 517 (2014).  The Board will also remand for consideration by the VA examiner of the relevant medical journal articles and citations of record.

23.  Entitlement to a rating in excess of 30 percent for left wrist arthritis, status post-fracture, from April 12, 2016.

As a result of today’s order (see Increased Rating section above), there will be a staged rating for the Veteran’s service-connected disability of left wrist arthritis, status post fracture, with a 10-percent rating prior to April 12, 2016 and a 30- percent rating from April 12, 2016.

In April 2016, the Veteran underwent a VA examination for this left wrist.  The examiner determined that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time and during a flare-up.  Without explanation, the examiner determined that he was unable to describe the limitation of functional ability in such circumstances in terms of a range of motion.  As required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the VA examiner should have attempted to estimate any additional functional loss, including loss of range of motion, with flare-ups and with repeated use over time, based on all medically relevant information, included that elicited from the Veteran as to his experienced symptoms.  Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The VA examiner found favorable ankylosis in 20 degrees to 30 degrees of dorsiflexion.  As explained in the Increased Rating section above, this finding was sufficient for a grant of a rating increase, from 10 percent to 30 percent, from April 12, 2016, pursuant to the rating criteria of 38 C.F.R. § 4.71a, DC 5214.  It is also possible that the Veteran is entitled to an even higher rating in light of his report to the examiner that he loses 75 to 100 percent of the use of his left wrist during flare-ups.  Therefore, the Board will remand for compliance with Sharp, including an opinion as to whether the Veteran’s estimate of the complete loss of use of his left wrist during a flare-up can be characterized as a form of ankylosis that approximates the criteria of a rating higher than 30-percent under DC 5214.

24.  Entitlement to compensable evaluation prior to August 2, 2012, and to a rating in excess of 20 percent from August 2, 2012, for pes cavus.

A June 2012 rating decision granted service connection for pes cavus associated with arthritic spurring lumbar spine (claimed as back pain).  A noncompensable evaluation and effective date of June 3, 1998 were established.  The Veteran filed a NOD in August 2012 and VA Form 9 in December 2016 as to the assigned rating.

A rating decision of December 2016 increased the evaluation to 20 percent, effective August 2, 2012.  Because less than the maximum available benefit was awarded, the appeal remained active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Board remanded the issue in May 2018 for further development of the claim, after which the claim was to be adjudicated.  To date, no supplemental statement of the case (SSOC) has been issued with respect to the claim for a higher initial rating for the service-connected disability of pes cavus.  The SSOC of November 2020 granted entitlement to an effective date earlier of April 6, 1998 for the grant of service connection for a “bilateral foot disorder.”  It was also noted that the appeal seeking a higher initial rating was still active.  Because the Board’s remand directive to readjudicate the increased rating claim has not been carried out, the claim will be remanded.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).

Under Disability Code 5278, a 10-percent evaluation is warranted for bilateral or unilateral limitation of dorsiflexion at the ankle and definite tenderness under the metatarsal heads, with the great toe dorsiflexed.  A 20-percent rating is assigned for unilateral pes cavus, or a 30-percent rating for bilateral pes cavus, where there is evidence of all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  A 30-percent rating is assigned for unilateral pes cavus, or a 50-percent rating for bilateral pes cavus, where there is evidence of marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity.  38 C.F.R. § 4.71a, DC 5278.  The criteria under DC 5278 are conjunctive, meaning that all of the conditions listed in the provision must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (1991).

The Veteran underwent a VA examination for foot conditions in April 2016.  Based on the findings of the examination, it is not clear whether the Veteran’s pes cavus is currently unilateral or bilateral.  For the form question as to whether there is “acquired pes cavus (clawfoot),” no response was given.  The Board notes that the June 2012 rating decision that granted service connection (implementing service connection granted by a Board decision of May 2012) referred to “bilateral involvement” of pes cavus.  Furthermore, a June 2003 VA examination report for the feet noted that the Veteran “walks along the lateral aspect of his foot on the right” and that he puts pressure of the lateral aspect of his left foot.

Also lacking in the April 2016 examiner are findings with respect to the following rating criteria: great toe dorsiflexed; limitation of dorsiflexion at ankle to right angle; shortened plantar fascia; marked tenderness under metatarsal heads; marked contraction of plantar fascia with dropped forefoot; all toes hammer toes; very painful callosities; or marked varus deformity.  The examiner found “painful callouses” but did not characterize the severity of the pain.  Moreover, no finding was made as to hammer toes, although it was noted that a VA treatment record of February 2016 made an assessment of hammer toes.  The examiner also failed to note the side affected (right, left, or both) when finding that less movement that usual is a contributing factor of disability.  Because the April 2016 VA examination for the feet did not make these findings, and due to the needed clarification as specified above, the examination report is inadequate to rate the disability.  The Board will remand for a new VA examination.  38 C.F. R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

25.  Entitlement to a separate disability rating for bowel incontinence.

In May 2012, the Board granted entitlement to service connection for urinary/bowel incontinence.  It was noted in the Reasons and Bases section of the Board order that the Veteran, as a layperson, was competent to report his “urinary and bowel incontinence” since Desert Shield/Storm, and that, in the absence of contravening evidence in that regard, his lay statements of a continuity of symptomatology of a “chronic urinary/bowel incontinence disability” were probative of the claim (emphasis added).

The June 2012 rating decision, in implementing the Board’s decision, granted service connection for urinary incontinence only.  Nothing in the rating decision indicates that the Veteran’s bowel incontinence was considered by the AOJ in assigning a 20- percent rating, effective June 3, 1998, for urinary incontinence.  The Veteran appealed the assigned rating by filing a NOD in August 2012 and VA Form 9 in December 2016.  Because the Veteran appealed the assigned initial rating, the Board has jurisdiction to remand the issue of whether the Veteran is entitled to a separate disability rating for his bowel incontinence.

In hearing testimony of February 2002, and in statements of December 2005 and April 2008, the Veteran reported bowel incontinence.  An October 2008 VA examination report for the spine also notes the Veteran’s occasional bowel incontinence.  Separate ratings may not be assigned for the single manifestation of separately diagnosed disorders, even though the cause of the different disorders may be distinct.  38 C.F.R. § 4.14; see also Amberman v. Shinseki, 570 F.3d 1377, 1380-81 (Fed. Cir. 2009).  The Veteran’s service- connected disabilities include degenerative arthritis of the lumbar spine.  Under Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a.

The Board will remand for a VA examination to determine the current severity of the Veteran’s bowel incontinence, for which service-connection was granted by the Board decision of May 2012.

26.  Entitlement to an effective date earlier than June 3, 1998 for a TDIU.

A rating decision of May 2000 denied entitlement to a TDIU.  The Veteran did not appeal.  Entitlement to a TDIU was again denied by a rating decision of July 2011.  The Veteran appealed the denial by filing a NOD in August 2011 and VA Form 9 in October 2011.  Subsequently, a rating decision of November 2017 granted entitlement to a TDIU, effective August 27, 2007.  In May 2018, the Board remanded the issue of entitlement to a TDIU prior to August 27, 2007.

A rating decision of October 2020 granted entitlement to an earlier effective date of June 3, 1998 for the grant of a TDIU.  It was explained that the Veteran first met the schedular requirements for TDIU on June 3, 1998, with ratings of 40 percent for the back, 20 percent for urinary incontinence, 20 percent for the left ankle, 10 percent for skin rash, and 0 percent for pes cavus, for a combined evaluation of 70 percent.  Entitlement to an earlier effective date for the grant of individual unemployability was granted from June 3, 1998, because the TDIU claim was received within a year of June 3, 1998, the date that entitlement arose, and there had been continuous prosecution since that time.

The Board determines that the remanded issues of entitlement to increased ratings for PTSD with depression and insomnia, left wrist arthritis, pes cavus, and bowel incontinence and the remanded service-connection claims may impact, and are inextricably intertwined with, the issue of entitlement to an earlier effective date for the award of a TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Therefore, the latter issue will be also be remanded.

27.  Entitlement to service connection for diabetes mellitus with complications.

A rating decision of October 2008 denied entitlement to service connection for diabetes mellitus with complications.  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011.

A VA treatment record of April 2020 notes diabetes mellitus as a current disorder.  Diabetes is not noted in the service treatment records.  For the separation examination of April 1991, the Veteran was found to have a normal endocrine system.  He reported nothing as to diabetes and denied having, or having had, sugar in his urine.

Diabetes mellitus is a listed chronic disease for which service connection may be presumed, if the disease is shown as such during service or within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.

A September 2007 record of Dr. B. T., the Veteran’s primary care physician, diagnoses diabetes and indicates that the diabetes had its onset in March 2007.  There is no earlier diabetes diagnosis of record.  An earlier, March 2002 record of Dr. B. T. lists the Veteran’s medical problems as depression, PTSD, hypertension, lumbar disc disease, and chronic bilateral foot pain.  Diabetes is not diagnosed or otherwise mentioned in the 2002 record.

In a March 2013 VA diabetic retinopathy surveillance consult, the duration of the diabetes is noted to be 6 years or more.  The Veteran reported that his diabetes had its onset in 2002 and that the exact date was unknown.  In a filing of August 2007, he stated that he was diagnosed with type 2 diabetes in March 2007.

In his NOD of October 20008, the Veteran requests, as to all his service-connection claims, an “appropriate medical examination addressing all elements of service connection and/or all relevant rating criteria.”  No VA examination or opinion was obtained with regard to the Veteran’s diabetes claim. 

VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4).  The third factor has been held to have a low threshold.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In March 2004, the Veteran submitted a July 2002 medical journal article that found that primary care patients with PTSD were more likely to have had a number of specific medical problems, including diabetes.  A medical article or treatise can provide important support for a claim when combined with an opinion of a medical professional.  See Mattern v. West, 12 Vet. App. 222, 228 (1999).  Because the evidence of record indicates that the Veteran’s current diabetes mellitus may be caused or aggravated with his service-connected psychiatric disability, a VA medical examination and opinion are not warranted.  See Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010).

28. Entitlement to service connection for muscle spasm (over entire body).

A rating decision of October 2008 denied entitlement to service connection for muscle spasm (over entire body).  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011.

As a layperson, the Veteran is competent to report his experienced symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In filings of December 1999, March 2004, December 2005, and August 2007, he reported having muscle spasms, including those of the right leg.  A VA treatment record of March 2002 notes a medical assessment of muscle spasms in legs.  A VA treatment record of June 2016 reflects that he takes cyclobenzaprine HCL for spasms, muscle relaxation.

The Veteran’s DD Form 214 indicates active duty service in Southwest Asia in support of Operation Desert Shield/Desert Storm.  In a statement of August 2010, he alleged having been exposed to toxic chemicals during service in Iraq.  Service connection may be granted to a Persian Gulf War veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317; see also Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order).  Notwithstanding any legal presumption of service connection under certain circumstances, a claimant can establish service connection for a disability based upon adequate evidence of actual causation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

The Veteran’s service-connected disabilities include degenerative arthritis of the lumbar spine, sciatic radiculopathy of the left and right lower extremities, left ankle fracture with ORIF fusion and traumatic arthritis, and pes cavus.  An October 2008 VA examination for the back noted back spasms of the back, lower extremities, and hamstrings.  A September 2010 VA examination report for the back noted that an orthopedic record of September 1998 indicated five years of pain in the right buttock with severe muscle spasms.  An April 2016 VA examination report for the back noted guarding, but no muscle spasms.

The Board’s May 2012 grant of service connection for low back disability was based, in part, on the fact of in-service injury as competently and credibly reported by the Veteran.  Specifically, he told the October 2008 VA examiner that, during service in Saudi Arabia as part of Desert Shield/Desert Storm, he repeatedly jumped off of trucks carrying a backpack and thereby developed lower back pain with radiation into the right buttock and numbness of the feet.  The Veteran told a September 2008 VA examiner that he twisted and injured his back from one particular jump and fall from a truck in approximately 1990.

In this case, the Board is not competent to determine upon the current record whether the Veteran’s recurrent symptom of muscle spasms represents a distinct disability or is an aspect of one or more other disorders.  The Board may not base a decision on its own unsubstantiated medical opinion, but rather may reach a conclusion only on the basis of independent medical evidence or adequate quotation from recognized medical treatises.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

“Pyramiding,” or the evaluation of the same symptoms under various diagnoses, is to be avoided.  38 C.F.R. § 4.14.  The issue of service connection for a disability is separate from the issue of the eventual rating to be established, should the disorder become service-connected.  Pyramiding is a concept applicable to ratings, which are not yet at issue in this case.

The Veteran’s claim of entitlement to service connection for muscle spasms should be afforded appropriate development.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board cannot make a fully informed decision on the issue of entitlement to service connection for muscle spasm, because no VA examiner has opined as to the likelihood that the Veteran’s muscle spasms are related to his jumping from a truck during service, or to any other disease or injury of service, or are caused or aggravated by a service-connected disability.  The Board will therefore remand for a VA examination and nexus opinion.

29.  Entitlement to service connection for a neck disorder.

A rating decision of October 2008 for service connection for “neck condition.”  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011.

In a filing of August 2007, the Veteran states that, in July 2006, his back went out on him while he was playing with his 7-year old son.  He maintains that his back tightened up, that he felt a sharp pain from the bottom of his back to the top to his neck, and that he was unable to turn his head.  The Veteran, as a layperson, is competent to report his experienced symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

A VA treatment record of January 2018 notes (in the context of treatment following the Veteran’s having been thrown from a golf cart on an unknown date) diagnoses of C5 vertebral fracture, cervical spondylosis, and cervical stenosis of spinal canal.

The Veteran is service-connected for degenerative arthritis of the spine.  The service-connection grant was based, in part, upon the fact of in-service injury to the back from repeated jumping off of trucks with a backpack.  The Board cannot make a fully informed decision on this issue, because no VA examiner has opined as to the likelihood that the Veteran’s current disorder of the cervical spine is caused by a disease or injury of service, including the injury that caused back disability, or is caused or aggravated by a service-connected disability, to include the service-connected back disability.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board will remand for a VA examination and nexus opinion.

30.  Entitlement to service connection for right side numbness.

A rating decision of October 2008 denied service connection for right side numbness, upper extremity (claimed as right side numbness from shoulders to foot including the right leg).  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011.  A May 2012 order of the Board remanded the issue of entitlement to service connection for right side numbness of the upper extremity.  A supplemental statement of the case of November 2020 continued to the deny the claim, and it has been returned to the Board for further appellate review.

A January 2019 VA examination for the back found the Veteran to have radiculopathy characterized, in part, by mild numbness in the right lower extremity and no numbness in the left lower extremity.  A rating decision of April 2019 granted entitlement to service connection for radiculopathy of the left lower extremity (sciatic), with a 10-percent rating and effective date of January 17, 2019, and for radiculopathy of the right lower extremity (sciatic), with a 20-percent rating and effective date of January 17, 2019.

The Veteran’s DD Form 214 indicates his active duty service in Southwest Asia in support of Operation Desert Shield/Desert Storm.  In a statement of August 2010, he alleged having been exposed to toxic chemicals during service in Iraq.  Service connection may be granted to a Persian Gulf War veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317; see also Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order).  Notwithstanding any legal presumption of service connection under certain circumstances, a claimant can establish service connection for a disability based upon adequate evidence of actual causation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In a filing of August 2007, the Veteran cited numbness not only of the lower extremities but also on the right side of his body from the shoulder to the feet.  In May 1997, he also reported numbness of the fingertips.  Because the issue of service connection for numbness of the upper extremities is inextricably intertwined with the remanded claim of entitlement to service connection for a neck disorder, the numbness claim must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

The Board may not base a decision on its own unsubstantiated medical opinion, but rather may reach a conclusion only on the basis of independent medical evidence or adequate quotation from recognized medical treatises.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  In this case, a remand is also needed for a medical opinion as to whether the April 2019 grant of service connection for radiculopathy of the bilateral lower extremities encompasses the recurrent numbness symptoms of the legs and feet for which the Veteran claims service connection, or whether they are, wholly or partly, a distinct disorder.  38 C.F.R. § 19.9(a).

31.  Entitlement to service connection for an eyes/vision disorder.

A rating decision of September 1995 denied service connection for residuals of flash burn to face.  The claim was denied on the basis of a lack of a current disorder and of a link between a current disorder and the in-service event/injury.  It was noted that the service treatment records show that the Veteran had a flash burn to his face in July 1981, when an immersion heater blew up.  He had burning sensation of the eyebrows, cheeks, and lips with first-degree burns and no blisters.

In April 1998, the Veteran filed a service connection claim for, among other disorders, “flash burn on face (1981).”   In a June 1998 filing, he stated that, as a result of the accident with immersion heater in July 1981, he suffered vision difficulty and irritation to his eyes.  He was burned on his eyebrows, cheeks, and lips, and he began to have trouble seeing bright objects after the explosion.  He also alleged that sand and burning oil wells irritated his eyes while stationed in Saudi Arabia.  From 1991 to April 1998, he alleged, his vision was blurred when he awoke in the morning, and it would take a few moments before his vision cleared up.

A rating decision of May 2000 denied entitlement to service connection for “residual flash burns to face” and for “eye injury.”  In October 2000, the Veteran filed a NOD as to both the denial of service connection for residual flash burns to the face and for eye injury.  He appealed to the Board with the filing of VA Form 9 in January 2001.

At a February 2002 Board hearing, the Veteran withdrew the issue of whether new and material evidence had been submitted to reopen the service-connection claims for burns of the face and eye injury.  As addressed in more detail in a section below, the Board no longer has jurisdiction to review the appeal.  Because it has been withdrawn, today’s order will dismiss the appeal that was initiated by the October 2000 notice of disagreement.

In February 2002, the Veteran filed a service connection claim for “flash burns to eyes and face.”  A rating decision of October 2008 denied entitlement to service connection for residual flash burns to the eyes and face on the grounds that new and material evidence had not been received.  The Veteran filed a NOD in October 2008 and VA Form 9 in July 2011.

Effective October 6, 2006, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim.  38 C.F.R. § 3.156(c)(3); see also Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014).  When relevant service records are newly associated with a claimant’s file, VA has a duty to reconsider the claimant’s previously denied claim on the merits.  See George v. Shulkin, 29 Vet. App. 199 (2017).

In this case, an October 1990 service treatment record was added to the record in August 2010.  It was not of record when VA previously denied the claim in May 2000.  The record appears to show abnormal vision based on a current eye examination and notes the immersion heater accident some 9 years after it occurred.  It is relevant to the nature and extent of the in-service injury and to the unestablished element of a link between a current disorder and the in-service event/injury.  See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Kisor v. Wilkie, No. 2016-1929, 2020 U.S. App. LEXIS 25527 (Fed. Cir. Aug. 12, 2020).  Because the record contains a relevant service treatment record that existed and had not been associated with the claims file when VA previously decided the claim, there is no need to reopen the claim that was denied by the rating decision of May 2000.  38 C.F.R. § 3.156(c)(3).

The Veteran’s February 2002 claim references injury to both the face and the eyes.  The scope of the claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran has a current eye disorder.  A VA examination of March 1996 notes that the right optic disc appears enlarged.  The impression of a September 2017 VA treatment record (eye ophthalmology consult) was, in part, glaucoma suspect and cataracts OU.  An April 2018 VA treatment record notes an altered sensation in the eyelid.

In September 1994, the Veteran underwent a VA examination for scars.  There was no evidence of burns on the skin of his face.  The Veteran reported that he had a flash burn which caused first degree burns across his face and scarring of his eyes.  He stated that, because of his eye troubles, he currently wore glasses.  He reported having initial difficulty seeing when waking up in the morning, when he has blurry vision.  He stated that his glasses help at times, but that his “eyes becomes blurry” if he reads for a long time.

In September 1994, the Veteran underwent a VA examination for vision.  The diagnosis was latent hyperopia with resultant headaches when reading and early morning blurred vision.  The in-service explosion in 1981, with the resulting facial, eyelash, and eye burn, was noted.  The Veteran reported an approximately a 3-year history of blurred vision when first awakening.  He also complained of headaches when reading things up close for a prolonged period.  The service treatment records document that the Veteran had a flash burn to his face in July 1981 when an immersion heater blew up, and that he had blurred vision and a burning sensation of the eyebrows, cheeks, and lips with first-degree burns.

In a filing of November 2009, the Veteran also attributed his current vision problems to an incident in which sought shelter under a tank during a Scud missile attack and had burning and watering eyes when he emerged from underneath the tank following the attack.

The Board cannot make a fully informed decision on the issue of entitlement to service connection for eye injury, because no VA examiner has opined as to the likelihood that a current eye disorder of the Veteran, to include suspected glaucoma and cataracts OU, is caused or aggravated by a disease or injury of service, to include the 1981 injury to the eyes and noted symptoms.  The Board will remand for a VA medical examination and opinion.

A medical opinion is also needed as to the likelihood that the Veteran’s current hyperopia was subject to a superimposed disease or injury during service to create additional disability.  Hyperopia and astigmatism are defined as errors of refraction.  See Dorland’s Illustrated Medical Dictionary 170, 904 (30th ed. 2003). Refractive error of the eye is not considered a disease or injury for which service connection is available, absent superimposed disease or injury.  38 C.F.R. §§ 3.303(c), 4.9; see also Parker v. Derwinski, 1 Vet. App. 522 (1991).

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

In February 2002, the Veteran filed a service-connection claim for left knee injury.  A rating decision of July 2009 denied entitlement to service connection for left knee condition.  The Veteran filed a NOD in November 2009 and VA Form 9 in May 2011.

A VA treatment record of December 2017 notes the Veteran’s complaint of bilateral, recurrent knee pain with swelling.  He reported using a cane for ambulation.  The impression of the clinician was “bilat knee pain likely djd.”

The service treatment records document left knee injury.  A June 1982 record indicates a strain of the left knee from physical training.  There was slight edema and tenderness.  A September 1982 record notes a complaint of painful motion of the left knee after twisting the knee when playing basketball.  There was tenderness to touch.  The assessment was “contusion of left knee (sprain).”  A February 1983 record is mostly illegible cursive script but clearly indicates positive findings for tenderness, entrapment, percussion, and crepitation of the left knee.

The Veteran’s service-connected disabilities include degenerative arthritis of the spine, residuals of left ankle fracture with ORIF fusion and traumatic arthritis, and pes cavus.  The Veteran is competent to report his experienced knee symptoms both during and following service.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

The Board cannot make a fully informed decision as to entitlement to service for a left knee disorder, because no VA examiner has opined as to the likelihood that the Veteran’s current left knee disorder is related to service or caused/aggravated by a service- connected disability or a disorder for which service connection is sought.  Accordingly, the Board will remand for a VA examination and nexus opinion.

33.  Entitlement to service connection for headaches.

In April 1998, the Veteran filed a service-connection claim for headaches.  A rating decision of May 2000 denied entitlement to service connection for migraine headaches.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.

A June 1996 record of Dr. J. S. notes, under the heading of past medical history, migraine headaches one to two times a week, reportedly for years.  An April 2016 VA examination report for headaches diagnosed the Veteran as having chronic headaches.  The Veteran reported that his headaches had their onset “very soon after” his return from Gulf War service.  He denied a head injury and attributed his headaches to the inhalation of black smoke during service.

The Board remanded this issue in May 2012 and May 2018.  A further remand is required for full compliance with the May 2012 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

A VA examination report and nexus opinion for headaches was obtained in April 2016, with a further nexus opinion of August 2020 and an addendum of October 2020.  These reports failed to follow the Board’s remand directives in the following respects.  The Board required that the examiner perform all necessary studies, tests, and evaluations.  Although the VA addendum opinion determined that further, specific testing might provide useful information, it was not performed.  Specifically, the examiner stated that, while it is possible that the Veteran’s PTSD might cause more frequent headaches, quantifying such aggravation “would be virtually impossible, as there is no objective measure, with the exception of standardized widely accepted questionnaires,” and that “there is no evidence of such in the Veteran’s records” (emphasis added).  It is not clear why the examiner did not order such a questionnaire or explain why administering it would not be possible or of value in the Veteran’s case.

The Board’s May 2012 remand also directed the examiner to specifically consider the medical literature submitted by the Veteran.  The Board referenced the Veteran’s allegation that his headaches are caused or aggravated by his service-connected PTSD and his submission of purportedly supportive medical literature.  The April 2016 examiner did not specifically address submitted medical literature.  Rather, he made only a general reference to the failure of “information presented for consideration by the Veteran...  [to] provide compelling pathophysiological explanation of a direct service connection.”

In October 2007, the Veteran submitted an April 2000 medical article, “The Victor as Victim: Stress Syndromes of Operational Service,” which addresses Gulf War syndrome, defined by the article as a chronic fatigue syndrome complete (fatigue, non-specific rash, myalgia, headaches, memory loss), with disproportionate respiratory and gastrointestinal symptoms.  In the report, the VA examiner should have addressed the likelihood, in light of the information provided in the article, that the Veteran’s diagnosed headache disorder is an aspect of Gulf War syndrome.

A VA examination and nexus opinion must be adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The August 2020 medical opinion states that the “reported onset of headaches is 1995, per the DBQ.”  Yet the April 2016 VA examination report indicates 1995 as the date of diagnosis, not the date of onset, which is given as being very soon after return from Gulf War service.  The Veteran, as a layperson, is competent to report his experienced headache symptoms.  Because the examiner did not note the Veteran’s competent report of symptoms, and erroneously based his negative nexus opinion, in part, on the supposed fact of no evidence of an in-service onset, the opinion is inadequate.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Miller v. Wilkie, 32 Vet. App. 249, 257 (2020).

Furthermore, clarification is needed as to the likelihood of secondary causation or aggravation by service-connected PTSD.  The October 2020 addendum opinion determined that, while it is possible for the Veteran to have more frequent headaches “due in part to PTSD and related response to stress,” this was unlikely in the Veteran’s case, because the VA examination report of April 2016 indicates the Veteran’s report of reduced stress and the frequency of his headaches reducing from almost daily to 1 to 2 per week.  The October 2020 did not adequately explain whether he was referencing PTSD alone, stress alone, or PTSD-related stress.  The distinction potentially matters, because the Veteran is service-connected for PTSD and not for stress per se.

The April 2016 VA examination report for headaches, cited by the October 2020 examiner, did not refer to a reduction in stress caused by PTSD, but rather simply to the Veteran’s report of being “under less stress in the last couple of months.”  The October 2020 VA examiner did not make his own medical finding as to the Veteran’s reduced PTSD stress levels.  Instead, his rationale appears to rely on the Veteran’s own assessment, as a layperson, of his “stress” in a general sense.

Moreover, the October 2020 examiner did not explain why the reduced frequency of 1 to 2 headaches per week is not at least as likely as not a frequency that is higher than what would otherwise be the case in the absence of the Veteran’s PTSD-related stress.  In other words, if, as the examiner determined, the frequency of the headaches has lowered concomitantly with the Veteran’s perception of his reduced stress level, clarification is needed as to why did the examiner does not consider the now-reduced frequency to still be an elevated one on the basis of the PTSD or PTSD- related stress that yet remains.

The issue of entitlement to service connection for headaches should also be remanded as being inextricably intertwined with the remanded issue of entitlement to service connection for an eye disorder.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  In September 1994, the Veteran underwent a VA examination for vision.  The diagnosis was latent hyperopia with resultant headaches when reading and early morning blurred vision.  It was also noted in a VA examination of March 1996, in the context of an evaluation for headaches, that the right optic disc appeared to be enlarged.

34.  Entitlement to service connection for a sinus disorder.

In June 1998, the Veteran filed a service-connection claim for sinus problems.   A rating decision of May 2000 denied entitlement to service connection for sinus problems.  The Veteran filed a NOD in October 2000 and VA Form 9 in January 2001.

A May 2003 record of Dr. B. T. notes a diagnosis of chronic rhinitis (nasal congestion) and sinusitis.  At the February 2002 Board hearing, the Veteran testified that he first experienced sinus problems during service abroad during the Gulf War.  He specified that his current symptom of “choking” began during service.  He testified that he did not go on sick call for his sinus problem while aboard and that, when seen by a VA doctor shortly after returning to the United States, he was told that no sinus problem was detected.

In a statement of June 1998, the Veteran alleged that his sinus problems were caused, while stationed in Saudi Arabia, by bombs constantly dropping and blowing up, guns constantly firing, and the fumes and smoke from burning oil wells and diesel fuel.

The Board remanded this issue in May 2012 and May 2018.  A further remand is required for full compliance with the May 2012 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  A VA examination report and nexus opinion for headaches was obtained in March 2016, and an additional nexus opinion was received in August 2020.  These reports failed to follow the Board’s remand directives in the following respects.  The Board’s May 2012 remand required a medical opinion as to the likelihood of causation or aggravation by any service- connected disability including, but not limited to, PTSD.  Neither the March 2016 opinion nor the May 2020 opinion addressed secondary service connection.

The Board also required that a gastroenterological examination be performed in order to evaluate any interplay between sinusitis and a gastrointestinal reflux problem.  The April 2016 VA examination report and nexus opinion for sinusitis include no mention of a gastroenterological examination.  The April 2016 VA examination report of headaches addressed the Veteran’s gastroenterological diagnoses of GERD and pancreatitis contained in the file only in relation to the claimed headache disorder only.  The May 2020 opinion regarding sinusitis also does not address the question of any gastrointestinal interplay.

Following the Board’s remand of the issue in May 2018, a further VA nexus opinion was obtained in May 2020.  The VA examiner offered a negative nexus opinion for the following stated reasons: there is no record of an acute or chronic sinus condition while in service; in-service treatment for viral pharyngitis in 1986 was an acute and self-limited episode, as evidenced by a negative separation exam that noted no sinus complaints; the Veteran was noted to have had an onset of chronic sinusitis in 2003, per available records, including the March 2016 VA examination report; CT scans done in 1996 and 2016 were negative for any acute or chronic changes in the sinuses; and there is no evidence of rhinitis in service or until at least 1995 at the earliest.  The examiner considered the “more likely diagnosis” to be not chronic sinusitis but rather allergic rhinitis with episodic sinusitis, and he determined that the latter disorder was less likely than not connected or due to service or events in service.

In fact, the March 2016 VA examination report notes not a 2003 onset, but rather that the Veteran reported he had had constant nasal congestion and throat and sinus problems since the 1990s in the Middle East.  May 2003 is listed as the date of diagnosis, not the date of onset.  Because the examiner did not note the Veteran’s competent report of symptoms, and erroneously based his negative nexus opinion, in part, on the supposed fact of no evidence of an in-service onset, the opinion is inadequate.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Miller v. Wilkie, 32 Vet. App. 249, 257 (2020).  The Board will remand for a new VA examination and nexus opinion.

The matters are REMANDED for the following action:

1. Undertake appropriate development to associate with the record any outstanding and identified private medical records that are pertinent to the remanded issues and any outstanding VA treatment records.  All efforts to obtain such records should be documented in the record.

2. Undertake appropriate development as to evidence of the Veteran's claimed Gulf War chemical exposure, to include seeking information as to whether the Veteran's service-related duties likely involved being in the vicinity of toxic exposure in Southwest Asia during Gulf War service.

3. Schedule an examination by an appropriate clinician to determine the current severity of the Veteran’s service- connected PTSD with depression and insomnia.  The examiner must fully describe the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms.

The examiner must give specific consideration to:

a.	The diagnoses of PTSD, depression, and alcohol dependence made by the VA examination report for PTSD in May 2011; and

b.	Medical literature cited or provided by the Veteran, to include the filings of October 2007, October 2010, and December 2016 in relation to PTSD, depression, and insomnia, as applicable to the current severity of the service-connected psychiatric disability

If the Veteran’s medical history indicates that the diagnosis of any acquired psychiatric disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding likely represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected disability of left wrist arthritis, status post-fracture.  The examiner must fully describe the disability and report all signs and symptoms necessary for evaluating it under the rating criteria.

The examiner must estimate the effect of any functional losses during flare-ups and/or with repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, and fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically.  The additional functional impairment must be expressed in terms of the degree of additional loss of range of motion to the extent possible.

The examiner must give specific consideration in the report to the Veteran’s account of the severity, frequency, and duration of left wrist flare-ups, and the degree of functional loss during flare-ups and with repeated use over time, to include the Veteran’s statement in the April 2016 VA examination report that he loses 75 to 100 percent of the use of his left wrist during flare-ups.

The examiner must offer an opinion as to whether any limitation of motion during flare-ups and/or with repeated use over time may be expressed as a loss of range of motion of the joint.

The examiner must offer an opinion as to whether any limitation of motion during flare-ups and/or with repeated use over time may amount to a form of ankylosis, and, if so, the examiner must attempt to characterize the nature and severity of such ankylosis as defined under the relevant criteria of the Rating Schedule.

Notify the examiner that VA regulations anticipate that examiners, in providing an opinion as to any additional functional loss during flare-ups or with repetitive use over time, will make estimates based on information procured from relevant sources, including lay statements from a veteran.  The examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation.  This includes ascertaining by alternative means such information as the frequency, duration, characteristics, severity, or functional loss during flare-ups and/or with repetitive use over time.

Notify the examiner that, if it is not possible to provide a specific measurement or an opinion regarding flare-ups, repetitive use over time, functional impairment, or other symptoms without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

Notify the examiner that the fact that an examination did not occur during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate of functional loss during a flare-up or with repeated use over time.

5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected pes cavus.  The examiner should fully describe the foot or feet disability and report all signs and symptoms necessary for evaluating it under the rating criteria.

The examiner must make a specific finding as to whether the Veteran’s pes cavus is unilateral or bilateral.

If the Veteran’s medical history indicates that the diagnosis of any foot disorder has changed, including whether the pes cavus is unilateral or bilateral, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and to estimate the degree of functional loss during flare-ups and with repeated use over time.  The additional functional impairment must be expressed in terms of the degree of additional loss of range of motion to the extent possible

Notify the examiner that VA regulations anticipate that examiners, in providing an opinion as to any additional functional loss during flare-ups or with repetitive use over time, will make estimates based on information procured from relevant sources, including lay statements from a veteran.  The examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation.  This includes ascertaining by alternative means such information as the frequency, duration, characteristics, severity, or functional loss during flare-ups and/or with repetitive use over time.

If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

Notify the examiner that the fact that an examination did not occur during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate of functional loss during a flare-up or with repeated use over time.

6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s bowel incontinence, for which service connection was granted by a Board decision of May 2012 

The examiner should fully describe the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.

If the Veteran’s medical history indicates that the diagnosis associated with bowel incontinence symptoms has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding likely represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

7. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus.  The examiner must opine as to whether the Veteran’s diabetes at least as likely as not:

a.	Had its onset during service or is otherwise related a disease, injury, or event of service;

b.	Manifested within one year after discharge from service or was noted during service with continuity of the same symptomatology since service; or

c.	Is caused, or aggravated beyond its natural progression by, a service-connected disability, to include PTSD with depression and insomnia, or by any other disorder

Specific consideration must be given to relevant medical articles cited by the Veteran in support of his contention that his diabetes is caused or aggravated by his service-connected psychiatric disability, including Weisberg, et al, Nonpsychiatric Illness among Primary Care Patients with Trauma Histories and Posttraumatic Stress Disorder, www.Error! Hyperlink reference not valid. doi/10.1176/appi.ps.53.7.848.

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his muscle spasms of the legs, feet, back, and other parts of the body as he may report currently or in the record.

The examiner must opine as to whether any muscle spasm disorder at least as likely as not:

a.	Is related to an in-service injury, event, or disease, to include the in-service injury that caused the Veteran’s service-connected back injury, and the Veteran’s reports that he was exposed to toxic chemicals during service in Southwest Asia;

b.	Is a manifestation of an undiagnosed illness or a medically unexplained, chronic multi- symptom illness;

c.	Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service; or

d.	Is caused, or aggravated beyond its natural progression by, a service-connected disability, to include degenerative arthritis of the lumbar spine, sciatic radiculopathy of the left and right lower extremities, left ankle fracture with ORIF fusion and traumatic arthritis, and pes cavus, or by any other disorder.

The examiner must also specifically opine, from a medical perspective, as to whether any recurrent symptom of muscle spasm at least as likely as not:

a.	Is a distinct disorder, as opposed to a symptom of another diagnosed disorder(s); and

b.	If a distinct disorder, is an organic disease of the nervous system.

If the Veteran’s medical history indicates the diagnosis of muscle spasm symptoms has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that “aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease.  If aggravation is at least as likely as not, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation.

Notify the examiner that he Veteran, as a layperson, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck disorder, and any associated neurological symptoms, at any time since the Veteran’s claim was filed in August 2007, even if now resolved.

The examiner must opine as to whether any neck disorder, and any associated neurological symptoms, at least as likely as not:

a.	Is related to any in-service injury, event, or disease, to include injury from jumping from a truck as alleged by the Veteran;

b.	Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service; or

c.	Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include the service-connected back disability, or by any other disorder.

If the Veteran's medical history indicates that the diagnosis of any neck symptoms has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be offered.  In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

10. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any body numbness of the Veteran, to include numbness of the bilateral upper and lower extremities.  The examiner must opine as to whether any body numbness of the Veteran at least as likely as not:

a.	Is related to any in-service injury, event, or disease, to include jumping from a truck as alleged by the Veteran, and the Veteran’s reports that he was exposed to toxic substances during service in Southwest Asia;

b.	Is a manifestation of an undiagnosed illness or a medically unexplained, chronic multi- symptom illness;

c.	Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service; or

d.	Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability or by any other disorder.

The examiner must also specifically opine, from a medical perspective, as to whether any recurrent symptoms of numbness at least as likely as not:

e.	Represent a disorder distinct from the radiculopathy of the bilateral lower extremities from which the Veteran is service-connected and from any other diagnosed disorder(s); and

f.	If a distinct disorder, is an organic disease of the nervous system.

If the Veteran's medical history indicates that the diagnosis of any numbness symptoms has changed, the clinician must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

Notify the clinician that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the clinician that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should indicate this in the examination report and provide a rationale for that determination.

If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be offered.  In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

11. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of flash burns to the eyes and face, to include any eye/vision disorder, to include glaucoma and cataracts OU.

The examiner should identify all eye diagnoses since the Veteran’s claim was filed in February 2002 and should identify which, if any, of the diagnoses, to include hyperopia, represents a congenital defect versus a congenital disease.  For purposes of the requested opinion, the examiner should consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration.  A congenital disease, by comparison, is one that is progressive in nature, such that it can worsen over time.

If the Veteran’s medical history indicates that the diagnosis of any neck disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

The examiner must opine as to whether any eye disorder since the Veteran’s claim was filed in November 2012, even if now resolved, at least as likely as not:

a.	Is related to an in-service injury, disease, or event, to include the July 1981 injury caused by the exploded immersion heater;

b.	Is a manifestation of an undiagnosed illness or a medically unexplained, chronic multi- symptom illness;

c.	Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability or any other disorder, to include headaches.

If the Veteran has an eye disorder that is considered a defect, to include refractive error of the eye, the examiner should opine as to whether it was at least as likely as not that any additional disability was due to disease or injury superimposed upon such defect during service, to include the July 1981 injury caused by the exploded immersion heater.  If so, the examiner must identify the additional disability.

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must indicate this in the examination report and provide a rationale for that determination.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

12. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disorder.  The examiner must opine as to whether any left knee disorder of the Veteran at least as likely as not:

a.	Is related to an in-service injury, event, or disease, to include the left knee symptoms noted in the service treatment records;

b.	Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service; or

c.	Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability or any other disorder.

If the Veteran’s medical history indicates that the diagnosis of any left knee symptom(s) has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that the clinician has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that the Veteran, as a layperson, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination.

The examiner must offer a rationale for all opinions in the report.

13. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disorder of the Veteran.

All studies, tests, and evaluations (even if specialized) that are needed to make an informed determination as to the likelihood of causation by a disease or injury of service, or causation or aggravation by a service- connected disability, to include PTSD, should be performed or ordered by the examiner, or an explanation should be given as why such evaluation would not be medically appropriate as to the Veteran.

The examiner must opine as to whether any headache disorder at least as likely as not:

a.	Is related to an in-service injury, disease, or event of service, to include the Veteran’s reports that he was exposed to toxic substances during service in Southwest Asia;

b.	Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service;

c.	Is a manifestation of an undiagnosed illness or a medically unexplained, chronic multi- symptom illness;

d.	Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include PTSD with depression and insomnia, or any other disorder, to include an eye/vision disorder and a sinus disorder.

The examiner must specifically consider relevant medical literature submitted by the Veteran that is associated with the claims file, to include any citation to medical literature as to causation/aggravation of headaches by PTSD and as to headaches as an aspect of Gulf War syndrome.

If the medical record reflects that the diagnosis of the Veteran’s headache symptoms has changed, the examiner must opine as to whether the new diagnosis represents a progression of a prior diagnosis, correction of an error in a prior diagnosis, or the development of a new and separate condition.

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that “aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease.  If aggravation is at least as likely as not, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation.

Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report. 

14. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sinus disorder of the Veteran.

The examiner must opine as to whether any headache disorder at least as likely as not:

a.	Is related to an in-service injury, disease, or event of service, to include the Veteran’s reports that he was exposed to toxic substances during service in Southwest Asia;

b.	Began during active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service;

c.	Is a manifestation of an undiagnosed illness or a medically unexplained, chronic multi- symptom illness; or

d.	Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, or any other disorder.

The examiner must specifically consider relevant medical literature submitted by the Veteran that is associated with the claims file, to include any citation to medical literature as to causation/aggravation of headaches by PTSD and as to Gulf War syndrome.

If the medical record reflects that the diagnosis of the Veteran’s sinus symptoms has changed, the examiner must opine as to whether the new diagnosis represents a progression of a prior diagnosis, correction of an error in a prior diagnosis, or the development of a new and separate condition.

Notify the examiner that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that “aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease.  If aggravation is at least as likely as not, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation.

Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report. 

15. Following the above-ordered development and any additional warranted development, readjudicate the remanded issues.  If the claims are not granted in full, send the Veteran and his representative a supplemental statement of the case (SSOC), and provide the requisite opportunity to respond, before the case is returned to the Board for further appellate consideration.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Steven D. Najarian, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.