Citation Nr: 21015355
Decision Date: 03/17/21	Archive Date: 03/17/21

DOCKET NO. 13-22 023A
DATE: March 17, 2021

ORDER

The petition to reopen the claim for service connection for shortening of the left leg is dismissed.

Entitlement to an initial rating higher than 10 percent for herpes zoster is dismissed.

Service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), is denied.

Service connection for memory loss, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), is denied. 

A rating higher than 10 percent for residuals of squamous cell carcinoma of the left vocal cord prior to July 27, 2017 is denied. 

A rating of 30 percent for residuals of squamous cell carcinoma of the left vocal cord from July 27, 2017 through October 18, 2019 is granted. 

A rating higher than 10 percent for kidney stones, left kidney, with uteropelvic junction obstruction, is denied. 

An initial rating higher than 10 percent for restless leg syndrome of the right leg is denied.

An initial rating higher than 10 percent for restless leg syndrome of the left leg is denied.

An effective date of May 4, 2008 for the 50-percent rating for obstructive sleep apnea is granted. 

An effective date earlier than May 4, 2008 for the 50-percent rating for obstructive sleep apnea, including on the basis of clear and unmistakable error (CUE) in the June 1996 rating decision, which assigned an initial 10 percent rating, is denied.

REMANDED

Entitlement to service connection for chronic fatigue, including as due to an undiagnosed illness or MUCMI, to include chronic fatigue syndrome, is remanded.

Entitlement to service connection for a gastrointestinal condition, including gastroesophageal reflux disease (GERD) and Barrett’s esophagus, or as due an undiagnosed illness or MUCMI, is remanded.

Entitlement to service connection for bilateral elbow conditions, including bilateral lateral epicondylitis, or as due an undiagnosed illness or MUCMI, is remanded.

Entitlement to service connection for bilateral knee conditions, including degenerative arthritis, or as due an undiagnosed illness or MUCMI, is remanded.  

Entitlement to service connection for actinic dermatitis is remanded. 

Entitlement to a rating higher than 10 percent for residuals of squamous cell carcinoma of the left vocal cord since October 18, 2019 is remanded.

Entitlement to a rating higher than 20 percent for degenerative disc disease of the thoracolumbar spine (low back disability) is remanded.

FINDINGS OF FACT

1. In August 2020, prior to issuance of a decision in the appeal, the Board received a written statement signed by the Veteran that he wished to withdraw the appeal of the denial of service connection for shortening of the left leg. 

2. In January 2020, prior to issuance of a decision in the appeal, the Board received a written statement signed by the Veteran that he wished to withdraw the appeal of the denial of an initial rating higher than 10 percent for herpes zoster.

3. The Veteran does not have a diagnosed psychiatric disorder. 

4. The Veteran does not have objective signs of memory loss or cognitive impairment; his cognitive functioning has been normal on examination. 

5. Prior to July 27, 2017, the Veteran’s residuals of squamous cell carcinoma of the left vocal cord were manifested by hoarseness, but without thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.

6. From July 27, 2017 to October 18, 2019, the Veteran’s residuals of squamous cell carcinoma of the left vocal cord were manifested by increased hoarseness, with a nodule or polyp of the right true vocal cord found on examination; the polyp was treated with a laser in June 2019, and the Veteran reported significant improvement in his voice on October 18, 2019. 

7. The Veteran’s kidney stone condition, diagnosed as nephrolithiasis, has been manifested by occasional attacks of colic, not infected and not requiring catheter drainage, and has required less than two invasive or non-invasive procedures per year. 

8. The Veteran’s restless leg syndrome has been manifested by symptoms akin to no more than mild incomplete paralysis of a peripheral nerve of the lower extremities.

9. A June 1996 rating decision granted service connection for sleep apnea, and assigned a 10 percent rating by rating it as analogous to stenosis of the larynx under the version of Diagnostic Code 6520 then in effect.  

10. At the time of the June 1996 rating decision, the rating schedule did not include a diagnostic code specific to sleep apnea.

11. Diagnostic Code 6847, which pertains to sleep apnea, was added to the rating schedule effective October 7, 1996, after the June 1996 rating decision was issued

12. The Veteran did not appeal the June 1996 rating decision, and new and material evidence was not added to the record within one year of the date of its mailing. 

13. The Veteran did not file a claim for an increased rating for his service-connected sleep apnea until October 15, 2009; however, the April 2010 rating decision, which granted a 50-percent rating, determined that a VA treatment record dated May 4, 2009 constituted an informal claim until then existing regulation.

14. A May 2014 rating decision granted an effective date of October 15, 2008 for the 50-percent rating for sleep apnea, one year prior to the October 15, 2009 informal claim, because the addition of DC 6847 to the rating schedule was a liberalizing law; however, it did not account for the previous finding that May 4, 2009 constitutes the effective date of filing of the claim. 

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal with regard to the claim for service connection for shortening of the left leg are met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal of an appeal with regard to the initial 10-percent rating assigned herpes zoster are met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. The criteria for service connection for a psychiatric disorder, including PTSD, have not been met.   38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  

4. The criteria for service connection for memory loss, include as due to an undiagnosed illness or MUCMI, have not been met.   38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317.

5. The criteria for a rating higher than 10 percent for residuals of squamous cell carcinoma of the left vocal cord prior to July 27, 2017 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.97, Diagnostic Code 6819-6516. 

6. The criteria for a rating of 30 percent for residuals of squamous cell carcinoma of the left vocal cord from July 27, 2017 to October 18, 2019 are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.97, Diagnostic Code 6819-6516. 

7. The criteria for a rating higher than 10 percent for kidney stones, left kidney, with uteropelvic junction obstruction have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.115b, Diagnostic Code 7508-7509.

8. The criteria for a rating higher than 10 percent for restless leg syndrome of the right leg have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8726.

9. The criteria for a rating higher than 10 percent for restless leg syndrome of the left leg have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8726.

10. The criteria for revision or reversal of the June 1996 rating decision on the basis of CUE in assigning an initial rating of 10 percent for obstructive sleep apnea are not met.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105. 

11. The criteria for an effective date of May 4, 2008, but no earlier, for the 50-percent rating for obstructive sleep apnea, are met.  38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1982 to January 1996.  

These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2010, July 2010, December 2011, May 2012, and July 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded the matters for further development in November 2019.

The Veteran testified at a hearing before the undersigned in January 2017.  A transcript of the hearing is of record. 

Withdrawal of Appeal

Under VA’s legacy appeal system, which applies here, an appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board issues a decision.  38 C.F.R. § 19.55(a).  Only an appellant, or an appellant’s authorized representative, may withdraw an appeal.  Id.

Appeal withdrawals must include the name of the veteran or the name of the claimant or appellant if other than the veteran, the applicable Department of Veterans Affairs (VA) file number, and a statement that the appeal is withdrawn.  38 C.F.R. § 19.55(b)(1).  If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.  Id.  

A withdrawal received by the Board after the Board issues a final decision will not be effective.  38 C.F.R. § 19.55(b)(3).  

Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies  38 C.F.R. § 19.55(c).

Here, prior to issuing a final decision in these matters, the Board received a January 2020 written statement signed by the Veteran stating that he wished to withdraw the appeal regarding the rating assigned his service-connected herpes zoster.  In August 2020, the Board received a written statement signed by the Veteran indicating that he wished to withdraw the appeal regarding service connection for shortening of the left leg.  These statements contain his name and VA file number.   Accordingly, the criteria for withdrawal of an appeal are satisfied with respect to the rating assigned his herpes zoster and the issue of service connection for shortening of the left leg.  See id.

As there remain no allegations of errors of fact or law respecting these issues, which have been withdrawn, the appeal is dismissed.  See 38 U.S.C. § 7105.

Service Connection

Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element).  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted).  

Psychiatric Disorder Including PTSD

The Veteran has filed a claim for service connection for PTSD.  See March 2010 VA Form 21-4138.  For the following reasons, the Board finds that service connection for a psychiatric disorder, including PTSD, is not established. 

The record shows that the Veteran has not been diagnosed with a psychiatric disorder, including PTSD.  The VA treatment records do not reflect diagnoses or treatment for a psychiatric disorder.  They do show a prescription for bupropion (i.e. Wellbutrin), which is prescribed for depression, but also to help stop cigarette smoking.  In the Veteran’s case, while the lists of his prescribed medications sometimes state that the medication is for depression, it is readily apparent that it has in fact been prescribed to help him with cessation of cigarette smoking.  In this regard, a December 2008 VA treatment record states that he was offered medication to assist with quitting smoking, including nicotine patches or bupropion.  A May 2013 VA treatment record notes that the Veteran is “already prescribed medication to assist with tobacco cessation,” and then lists Wellbutrin.  

The records do not otherwise indicate that the Veteran’s prescription for bupropion has been to treat depression.  The fact that lists of his prescription medication sometimes state that it is for depression is almost certainly owing to an automated generation of data associated with the electronic records system (i.e. due to Wellbutrin’s being frequently prescribed for depression), rather than a clinician’s notes specific to the Veteran.  

In this regard, the Board has considered a March 2019 VA treatment record which, in the list of the Veteran’s diagnoses, states: “depression  - continue with [W]ellbutrin; some improvement with meds [sic].”  The record in question does not reflect treatment or complaint of psychiatric symptoms.  Rather, the Veteran was being seen in part for medication refills.  As noted, the Wellbutrin (bupropion) was prescribed to help with smoking cessation.  Thus, the reference to depression in connection with the prescription for Wellbutrin was almost certainly owing to a mistake as to why the medication was prescribed, since that medication is frequently prescribed for depression, but also—as in the Veteran’s case—for smoking cessation.  Again, the purpose of this visit was to renew the Veteran’s prescriptions, and thus the clinician had to provide a reason for the renewal.  Accordingly, the Board does not find that this notation represents a diagnosis or finding of depression, but instead was a more or less automatically generated statement for purposes of justifying the prescription renewal.  

A VA PTSD examination was performed in April 2012.  The examiner found based on examination of the Veteran and review of his medical history that his symptoms did not meet the criteria for a diagnosis of PTSD under the DSM-IV criteria, or another mental disorder that conforms with the DSM-IV criteria.   

An April 2020 VA “Environmental Exposure Gulf War” examination report reflects that the Veteran denied issues with anxiety or depression.  He stated that he gets angry quickly, and is “jumpy” at loud noises.  He felt frustrated easily.  He had low interest and energy.  

As noted, the medical evidence, including VA treatment records dated through July 2020, does not show diagnoses of a psychiatric disorder, or treatment or complaints of psychiatric symptoms. 

To establish service connection for PTSD, there must be medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DMM-V). The Board notes that the DSM-IV was formerly applicable to the Veteran’s claim. 79 Fed. Reg. 45093, 45094  (Aug. 4, 2014).  Thus, the April 2012 VA examiner referenced the DSM-IV in finding that the Veteran’s symptoms did not meet the criteria for a diagnosis.  Nevertheless, the requirement that the PTSD diagnosis must conform to the DSM criteria has not altered; previously, it had to conform to the DSM-IV criteria.  See 38 C.F.R. § 3.304(f) (2012); Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997).

As the record does not show a DSM diagnosis of PTSD, the criteria for service connection are not satisfied.  See 38 C.F.R. § 3.304(f). 

Similarly, for VA compensation purposes, to establish service connection for a psychiatric disability other than PTSD, there must be a diagnosis of a psychiatric disorder in accordance with the DSM-V to satisfy the current disability requirement.  Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020) (citing 38 C.F.R. § 4.125, 4.130).  Although the DSM-IV was formerly applicable to the Veteran’s case, the Board finds that a diagnosis in accordance with the DSM-IV criteria for the period when that edition applied is still required to establish service connection.  In this case, there has been no diagnosis of a psychiatric disorder based on the fourth or fifth editions of the DSM during the period under review. 

The Veteran has not stated that he has been diagnosed with a psychiatric disorder during the pendency of this claim.  While he may have some psychiatric symptoms, such as feeling anxiety, low interest and energy, and being easily frustrated and quick to anger, a psychiatric disorder has not been diagnosed, including on the basis of such symptoms.  In the absence of a diagnosis of a psychiatric disorder, the criteria for service connection are not satisfied.  See id.; Holton, 557 F.3d at 1366. 

Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Memory Loss

The Veteran claims service connection for memory loss.  See October 2009 VA Form 21-4138.  For the following reasons, the Board finds that service connection is not established. 

The Veteran’s service records show that he served in the Persian Gulf from January 1991 to April 1991, and also for several weeks in October 1994, including in Saudi Arabia, Iraq, and Kuwait.  Therefore, because he had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War, he is recognized as a Persian Gulf Veteran under VA law.  38 C.F.R. § 3.317(e); 38 C.F.R. § 3.2(i) (providing that the Persian Gulf War began on August 2, 1990 and will continue until the date prescribed by Presidential proclamation or law); 38 U.S.C. §§ 1117, 1119.  

Compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses (MUCMI) to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability: (i) became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 C.F.R. § 3.317(a)(1).

A qualifying chronic disability for purposes of 38 C.F.R. § 3.317 means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; or (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders.  38 C.F.R. § 3.317(a)(2)(i).  

The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  38 C.F.R. § 3.317(a)(2)(ii).  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  Id.  

“Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non- medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).

The Board finds that while the Veteran may experience subjective memory loss, as he perceives it, the record shows that there are no objective signs of memory loss or cognitive impairment.  

A November 2009 letter from a private family doctor, A. Herbke, M.D., states that the Veteran had “pronounced concentration disorders” and had been prescribed medication (Axura) and concentration training. 

A VA psychiatric examination was performed in June 2010 to assess the Veteran’s reported memory loss.  According to the examination report, the Veteran stated that he had experienced memory problems since 1991.  More specifically, he forgot names a lot and had to keep frequent notes so as not to forget things.  He added that his wife complained about his memory loss.  The examiner noted that psychological testing was needed to determine whether the Veteran had a cognitive disorder.  The examiner found that the Veteran’s recent and immediate memory was mildly impaired based on his reported history.  In this regard, the examiner stated that the Veteran was able to recall three out of three words after 10 minutes, but related a history of memory problems.  

A May 2012 VA examination report reflects that the Veteran reported problems with attention/concentration, memory, and executive functions.  Specifically, he reported forgetting recent conversations and events, forgetting to pay bills, forgetting the plot of books he had just read, misplacing things, being easily distracted, and having problems with planning, organizing, and problem solving.  He denied any other cognitive difficulties.  He estimated that his neurocognitive functioning declined from 100 percent in 1991 to 45 percent currently.  He stated that he was able to independently manage all activities of daily living.  However, he stated that he had left the keys to his house in the door six times in the past year.  He was able to independently manage his own medications and the family finances, but stated he began forgetting to pay bills approximately six to eight months earlier.  He explained that his wife informed him of late notices and incurred fees, but he denied any services being turned off or other negative consequences.  

Based on examination and testing, the examiner found no objective evidence of mental status impairments, intellectual impairments, language impairments, visuospatial impairments, attention/working memory impairments, information processing speed impairments, verbal memory impairment, or executive functioning impairment that would be expected to result in functional impairment.   The examiner noted that the Veteran’s responses to a brief screening questionnaire of anxiety symptoms suggested he is experiencing clinically significant symptoms of anxiety (mild to moderate).  

In sum, the examiner found that the Veteran’s performance on objective neuropsychological testing suggested that his neurocognitive functions are fully intact.  The results did not show a cognitive disorder.  The examiner found that the Veteran’s subjective experience of cognitive problems is likely due to variable levels of stress.  The examiner added that the Veteran’s sleep apnea, insomnia, and resultant fatigue may also contribute to his subjective experience of memory problems.  The examiner reiterated that the Veteran does not have a cognitive disorder, and summarized that there is no objective evidence of any neurocognitive deficits that would be expected to result in functional impairment. 

The April 2020 VA Environmental Exposure Gulf War examination report reflects that the Veteran related having short-term memory issues.   He forgot what he needed when he walked into a room, was forgetful of names and phone numbers, and lost things or did not know where he left things, such as grocery lists.  He stated that he writes things down a lot or sets an alarm to remember things.  He related that his wife told him his memory had been steadily declining.  The examiner acknowledged the Veteran’s statements, but noted that the May 2012 cognitive testing was normal, and that the current interview coincided with the same level of memory deficits cited in the 2012 examination.  The Veteran “answered well to recall of words.”  There was no new evidence that the Veteran had “significant memory deficits in the range of a true neurocognitive disorder.”  The examiner found that no diagnosis was warranted.

Based on the evidence reviewed above, the Board finds that a current disability is not established.  The criteria for memory loss as an undiagnosed illness or MUCMI are not met, as the medical evidence shows that there have been no “signs” of memory loss as defined in § 3.317(a)(3), that is, there has been no “objective evidence perceptible to an examining physician” of memory loss.  Rather, neurocognitive testing showed normal neurocognitive functioning, and the Veteran demonstrated clinically normal memory on gross examination, such as by recalling words after ten minutes had elapsed.  The medical evidence does not otherwise show objective clinical findings of memory impairment or a cognitive disorder.  The June 2010 VA examiner stated that the Veteran’s immediate and recent memory were mildly impaired, but that finding was based solely on the Veteran’s reported history.  The same examiner authored the April 2020 VA examination report, which states that the Veteran’s subjective memory loss did not amount to a true neurocognitive disorder.   

The finding in the November 2009 letter by Dr. Herbke that the Veteran had “pronounced concentration disorders” is outweighed by the May 2012 VA examination report, in which the examiner found based on testing, including of attention, that the Veteran did not have a cognitive disorder, and that there was no objective evidence of any neurocognitive deficits that would be expected to result in functional impairment. 

The Board notes that memory impairment can also be a symptom of a psychiatric disorder.  See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.  As discussed above, the Veteran has not been diagnosed with a psychiatric disorder, and service connection for a psychiatric disorder has been denied.  Service connection for memory impairment as a potential psychiatric symptom therefore cannot be established, as that would improperly circumvent the requirement that there be a DSM diagnosis of an underlying psychiatric disorder.  See Martinez-Bodon, 32 Vet. App. at 401.  

Finally, as stated in the May 2012 VA examination report, the Veteran’s subjective memory loss does not cause functional impairment.  The April 2020 VA examiner found that the Veteran had the “same level of memory deficits” cited in the 2012 examination, meaning, in the context of the discussion in the April 2020 examination report, that there did not appear to be worsening memory on examination as compared with the earlier examination. 

The U.S. Court of Appeals for the Federal Circuit defines the term “disability” for VA compensation purposes as functional impairment of earning capacity.  Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).   To the extent that definition may apply here, as the Veteran’s subjective memory loss is not shown to cause functional impairment, it does not constitute a disability.  

In sum, in the absence of a current disability, the criteria for service connection for subjective memory loss are not satisfied.  See Holton, 557 F.3d at 1366.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Increased Ratings

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  

Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Squamous Cell Carcinoma of Left Vocal Cord

The Veteran seeks a rating higher than 10 percent for his service-connected residuals of squamous cell carcinoma of the left vocal cord.  See October 2009 VA Form 21-4138.  For the reasons that follow, the Board finds that the criteria for a rating higher than 10 percent prior to July 27, 2017 have not been met.  For the period from July 27, 2017 to October 18, 2019, a 30 percent rating is warranted.  The issue of whether a 30 percent rating may be assigned since October 18, 2019 will be remanded for further development. 

The Veteran’s residuals of squamous cell carcinoma of the left vocal cord are rated under 38 C.F.R. § 4.97, Diagnostic Code 6819-6516.  Diagnostic Code 6819 pertains to malignant neoplasms of any specific part of the respiratory system.  It instructs, in pertinent part, that if there has been no local recurrence of metastasis of the neoplasm, the condition is to be rated on residuals. 

Diagnostic Code 6516 pertains to chronic laryngitis.  Under DC 6516, a 10 percent rating is assigned for hoarseness, with inflammation of cords or mucus membrane.  A maximum 30 percent rating is assigned for hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.  38 C.F.R. §  4.97.  

The Veteran has a history of squamous cell carcinoma of the left vocal cord in service, during which he underwent vocal fold scrapings and radiation therapy.  He has not had a recurrence of the carcinoma, but has experienced chronic hoarseness since his in-service radiation therapy. 

A VA examination was performed in December 2009.   The examination report reflects that the Veteran continued to have problems with his voice during periods of maximal voice use.  He had very mild dysphagia.  On examination, the oropharynx had normal oral mucosa.  The posterior pharynx was without lesions and with normal hydration.  The pharynx was normal with no stricture, obstruction, or absence of soft palate.  The larynx was normal, with no hoarseness, submucosal infiltration, inflammation of the mucous membranes, stenosis, inflammation, or thickening or nodules on the cords.  There were no polyps present.  There was postcricoid and posterior vocal fold erythema with mild edema.  A speech examination was normal.  The examiner found that residuals of the Veteran’s squamous cell carcinoma of the left vocal cord consisted of mild problems with dysphagia and hoarseness. 

A July 2010 VA Gulf War examination report states that residuals of the Veteran’s left vocal cord carcinoma consisted of hoarseness and dry mouth and throat. 

An August 2010 VA treatment record reflects that the Veteran was seen as a new patient in the ear, note, and throat department for ongoing surveillance of his carcinoma residuals.  He had no current complaints.  He had baseline dysphonia and dry mouth which had been stable for years.  He denied otalgia, dysphagia, or odynophagia. 

A March 2011 VA treatment record similarly reflects that the Veteran had baseline hoarseness and a small amount of xerostomia (dry mouth).  There were no new complaints. 

The VA treatment records show that in July 2017, the Veteran reported dysphonia for the past four to five months, which was worse in the mornings.  It was noted that he had a history of laryngeal cancer which resulted in persistent dysphonia, but this represented a further decline from the usual degree of dysphonia he experienced.  An endoscope examination of the right true vocal fold showed an irregular excrescence.  A stroboscopic examination was significant for right true vocal fold lesions.  The Veteran was noted to have a mild to moderate breath voice with reduced volume. 

An August 2017 VA treatment record reflects the Veteran’s complaint of a five-month history of hoarseness that was much worse than his baseline, and intermittent sore throat.   A fiberoptic indirect laryngoscopy showed no masses or lesions.  Mild edema or erythema was observed.

In August 2017, a biopsy of the vocal fold lesion was performed, which showed a benign hyalinization of the right true vocal cord.  A flexible laryngoscopy revealed that the nasal cavity and nasopharynx were clear with normal adenoid pad and no masses or lesions in the fossa of Rosenmuller, oropharynx or hypopharynx. No masses, lesions or exudates were seen within the supraglottis.  The glottis had mobile vocal cords and a small mid-membranous patch of thickened epithelium that did not markedly restrict mucosal wave.   There was a small amount of right arytenoid restriction

In September 2017, the Veteran was noted to have a chronic sore throat, with a pain level of 2 out of 10 in severity.  The record states that he had a recent biopsy of the nodules on his vocal cord, in reference to the August 2017 biopsy. 

The Veteran began a course of speech therapy at VA in September 2017.  At the initial session, mild abnormalities were noted with regard to various aspects of voice quality, including pitch, loudness, strain, breathiness, and roughness.   

An October 2017 VA speech pathology record reflects that the Veteran experienced significant improvement in his voice following voice therapy.  A flexible laryngoscopy showed no masses or lesions.  A videostroboscopy showed that the mucosal wave was moderately restricted with mild underlying glottal insufficiency. 

Another October 2017 VA treatment record reflects that the Veteran’s voice was hoarse and scratchy.

A July 2018 VA speech pathology treatment record states that the Veteran’s voice had been doing well, and so he would be discharged from speech pathology.  

In January 2019, the Veteran reported that he noticed a sore throat and worsening hoarseness about two weeks earlier.  His throat was doing better, but he was still hoarse.  A fiber optic indirect laryngoscopy showed a small glottic gap.  There was mild erythema of the right true vocal cord.  He was to return in three months for evaluation.  

In February 2019, the Veteran complained of a sore throat and odynophagia (painful swallowing) that had worsened over the past month.  A flexible laryngoscopy showed tenacious secretions in the pyriform sinus and post-cricoid. 

An April 2019 fiberoptic laryngoscopy showed a “new mass” with a benign appearance. 

A May 2019 videostrobolaryngoscopy study showed a decreased right mucosal wave as well as a right mid membranous raised polypoid lesion with a posterior hemorrhagic portion.  The Veteran was assessed with a right true vocal cord mid-membranous lesion consistent with a polyp.  He was to undergo a brief trial of voice therapy.  If not improved, a biopsy and/or excision were advised. 

In June 2019, the Veteran underwent laser treatment of the vocal cord polyp. 

In July 2019, he reported significant improvement in his voice over the last week. 

In October 2019, the Veteran was seen for follow up of laser treatment of the right true vocal cord polyp.  He reported significant improvement in his voice, which was “back at baseline” after the procedure.  He denied otalgia, hemoptysis, a sore throat, epistaxis, or sudden changes in hearing.  A fiberoptic direct laryngoscopy examination was performed.  No lesions or masses were noted.  The right true vocal cord showed post laser changes, with no active bleeding or ulceration.  The cords were bilaterally mobile.  The Veteran was assessed with hoarseness which had improved, status post laser treatment.   

In January 2020, the Veteran was seen for follow up of the laser treatment of his right vocal cord polyp.  He reported some vocal fatigue with voicing.  He denied other symptoms, including a sore throat or dysphagia.  He had some mild improvement in his voice, but not “dramatic.”  

A VA examination was performed in March 2020.  The Veteran reported chronic hoarseness and problems with prolonged talking.  He lost his voice sometimes.  The examiner found that the Veteran had chronic laryngitis.  It was not manifested by inflammation of the vocal cords or mucous membrane, thickening of cords, nodules of cords, submucous infiltration of vocal cords, vocal cord polyps, or other symptoms.  He did not have laryngeal stenosis.  The examiner indicated that the Veteran had incomplete organic aphonia, which the examiner specified as constant hoarseness.  The examiner found that the Veteran’s vocal cord condition did not affect his ability to work.  

A June 2020 VA treatment record reflects that the Veteran reported worsening of hoarseness that began in February 2020.  The hoarseness had not worsened since then, but there was no improvement. A fiberoptic direct laryngoscopy examination showed a right true vocal cord mid-membranous lesion that was minimal.  The Veteran continued to have a tan colored lesion overlying the right arytenoid, which did not appear to obstruct function.  The Veteran was assessed with a stable membranous lesion of the right arytenoid. 

Based on the evidence reviewed above, the Board finds that prior to July 27, 2017, the criteria for a rating higher than 10 percent under DC 6516 were not met.  The Veteran’s residuals of squamous cell carcinoma of the vocal cord consisted of hoarseness and a dry mouth; these symptoms had been stable for years, as stated in the August 2010 VA treatment record.  The December 2009 VA examination report states that the Veteran also had problems with mild dysphagia.  However, less than a year later, the July 2010 VA Gulf War examination report only notes hoarseness and dryness of the mouth and throat, and the August 2010 VA treatment record states that the Veteran denied dysphagia, and stated that his symptoms had been stable for years.  Thus, the “very mild” dysphagia noted in the December 2009 VA examination report, and which the Veteran denied less than a year later and has not been mentioned in subsequent records, is not shown to be a manifestation of the Veteran’s squamous cell carcinoma residuals or an ongoing condition.  The Board also notes that the rating schedule does not recognize dysphagia in itself as a ratable disability.  As the evidence does not show that the very mild dysphagia noted in the December 2009 VA examination report caused any functional impairment, or affected the Veteran’s gastrointestinal functioning, a temporary separate compensable rating is not warranted. 

From July 27, 2017 through October 18, 2019, a staged rating of 30 percent is warranted.  That date range coincides with the period of time when the Veteran reported increased hoarseness, and examination showed a lesion or nodule of the right vocal cord and then, by April 2019, a polyp of the right vocal cord.  To the extent the findings prior to April 2019 are indeterminate in terms of whether the Veteran had a nodule sufficient to satisfy the criteria for a 30 percent rating under DC 6516, the Board resolves reasonable doubt in favor of the Veteran.  See 38 C.F.R. §§ 3.102, 4.3.  He reported significantly increased hoarseness during this period, as well as a sore throat, and examinations consistently showed abnormal findings.  The Board thus finds that the Veteran’s vocal cord condition met or more nearly approximated the criteria for a 30 percent rating under DC 6516 during that period, again resolving any reasonable doubt in his favor as to whether the abnormal findings during this period were manifestations of his squamous cell carcinoma residuals.  

The Board finds that July 27, 2017 represents the earliest ascertainable increase in the Veteran’s vocal cord condition, which is the date when he first sought treatment for his increased dysphonia, and when endoscopic examination showed a lesion or nodule of the right true vocal cord.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992).  Although the Veteran reported at that time that his increased hoarseness had begun four or five months earlier, that reported history is too open-ended to establish an ascertainable increase in disability that would satisfy or more nearly approximate the criteria for a 30 percent rating prior to July 27, 2017.  Moreover, there were no findings prior to July 27, 2017 of a nodule, polyp, or other manifestations that would satisfy the criteria for a 30 percent rating.  Thus, July 27, 2017 is the proper effective date for the increased rating. 

The present end date of October 18, 2019 for the staged 30-percent rating is based on the VA treatment record of that date showing that the Veteran’s voice was “back at baseline” after the laser procedure to treat his vocal cord polyp, and that he denied any other symptoms.  That record also shows that no lesions or masses were found on a fiberoptic direct laryngoscopy examination.  As discussed in more detail in the remand section below, the Board is remanding the issue of whether a 30-percent rating may be assigned based on the findings of a stable lesion on the right arytenoid in the June 2020 VA fiberoptic direct laryngoscopy examination.

The March 2020 VA examiner indicated that the Veteran had incomplete organic aphonia, and specified that this was in reference to his constant hoarseness.  Thus, his incomplete aphonia does not represent a distinct condition.  In this regard, DC 6519 pertains to complete organic aphonia, and provides that incomplete aphonia is to be evaluated as chronic laryngitis under DC 6516.  Therefore, DC 6516 is the appropriate diagnostic code to rate the Veteran’s residual hoarseness. 

The VA treatment records and examination reports show that there has not been a recurrence of the malignancy that was treated during active service.  The “malignant neoplasm of [the] glottis” in the Veteran’s “computerized problem list” that appears in some of VA treatment records in 2019 is clearly in reference to the April 2019 finding of a vocal cord polyp, which was expressly found to be benign in that record.  The medical records no not otherwise show clinical findings of a malignancy.  Therefore, a 100 percent rating under DC 6819 for a malignant neoplasm is not warranted; rather, the Veteran’s squamous cell carcinoma is now appropriately rated based on residuals, as discussed above. 

In sum, the criteria for a rating higher than 10 percent prior to July 27, 2017 for residuals of squamous cell carcinoma of the left vocal cord have not been met.  Because the preponderance of the evidence weighs against a higher rating for that period, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102   A 30 percent rating is assigned from July 27, 2017 through October 18, 2019.  The issue of whether a rating of 30 percent may be assigned since October 18, 2019 is being remanded.  

Kidney Stones

The Veteran seeks a rating higher than 10 percent for his service-connected kidney stones.  See May 2010 VA Form 21-526b (Veteran Supplemental Claim).  For the following reasons, the Board finds that the criteria for a higher rating have not been met. 

The Veteran’s recurring kidney stone condition is rated under 38 C.F.R. § 4.115b, DC 7508-7509.  Diagnostic Code 7508 pertains to nephrolithiasis.  Under DC 7508, nephrolithiasis is to be rated as hydronephrosis, except for recurrent stone formation requiring one or more of the following: (1) diet therapy; (2) drug therapy; (3) invasive or non-invasive procedures more than two times per year.  In any of those circumstances, a 30-percent rating is assigned under DC 7508.  

Diagnostic Code 7509 pertains to hydronephrosis.  Under DC 7509, a 10 percent rating is assigned when there is only an occasional attack of colic, not infected and not requiring catheter drainage.  A 20 percent rating is assigned for frequent attacks of colic, requiring catheter drainage.  A 30 percent rating is assigned for frequent attacks of colic with infection (pyonephrosis), kidney function impaired.  Severe hydronephrosis is rated as renal dysfunction.  

Turning to the evidence, a VA examination was performed in August 2010.  The examiner found that the Veteran’s kidney stones were manifested by “subjective factors” of recurrent renal colic, “frequent urine infection,” and frequency of urination.  An abdominal examination was benign.  The examiner also diagnosed benign prostatic hypertrophy, but did not indicate that this diagnosis was related to the kidney condition. 

With regard to the Veteran’s urinary frequency and infection, a VA medical opinion was obtained in March 2011 to address whether these symptoms were likely due to the Veteran’s enlarged prostate rather than his service-connected kidney condition.  The examiner reviewed the claims file and the August 2010 VA examination report, and opined that the most likely cause of the Veteran’s urinary frequency was a benign enlargement of the prostate.  The examiner explained that the enlargement of the Veteran’s prostate caused the bladder to not empty completely at the time of urination; therefore, the urine accumulated more rapidly and caused urinary frequency.  The examiner stated that kidney stones are not likely to cause urinary frequency. 

The VA treatment records reflect that in June 2013, the Veteran developed a kidney stone.  He was referred to a military treatment facility (MTF) for further evaluation.  The MTF records reflect that in September 2013, the Veteran was found to have nephrolithiasis presenting with kidney stones.  He reported left groin pain and occasional gross hematuria.  In October 2013, he was admitted to the hospital at the MTF facility, where he underwent surgery consisting of a left percutaneous nephrolithotomy with placement of a ureteral catheter or stent.  About two weeks later, the stent was removed.  A December 2013 MTF record reflects that the Veteran was doing well, and denied renal colic.  He was emptying well.  An ultrasound study conducted in January 2014 showed no hydronephrosis or stones.  The pelvicaliectasis seen on a November 2013 renal ultrasound had resolved.  A February 2014 MTF record reflects that the Veteran reported feeling much better than he did before the surgery.  

Subsequent medical records do not show further treatment of kidney stones. 

A VA examination was most recently performed in March 2020.  The examination report reflects that the Veteran related that since the 2013 surgical treatment for a kidney stone, he had episodes of renal colic pain and passed smaller kidney stones intermittently, which usually did not require medical treatment.  His last colic episode and passing of a stone occurred about six to eight months prior to the examination.  The examiner noted that the Veteran also had benign prostatic hyperplasia, which caused him to have urinary frequency and nocturia.  The examiner stated that this condition was not related to the kidney condition.  The examiner found that the Veteran’s recurrent kidney stone formation had required invasive or non-invasive procedures 0 to 1 times per year, with the most recent procedure occurring in 2013 (i.e. the surgical treatment at the MTF facility discussed above).  The examiner indicated that the Veteran had signs or symptoms due to urolithiasis which were characterized as occasional attacks of colic.  The examiner diagnosed the Veteran with nephrolithiasis.  The examiner found that the Veteran’s kidney condition did not have an impact on his ability to work. 

Based on the evidence reviewed above, the Board finds that the criteria for a rating higher than 10 percent have not been met.  With regard to DC 7508, the Veteran’s recurrent kidney stones have not required diet therapy, drug therapy, or invasive or non-invasive procedures more than two times per year.  The record shows he had one invasive procedure performed in October 2013, which is not sufficient to satisfy the criteria for a 30 percent rating under DC 7508.  Accordingly, the criteria for a 30 percent rating under DC 7508 have not been met or more nearly approximated.

The Veteran’s nephrolithiasis disability picture most closely corresponds to the criteria for a 10 percent rating under DC 7509, which is assigned for occasional attacks of colic without infection and not requiring catheter drainage.  Thus, the 10 percent rating currently assigned is appropriate.  As the Veteran has not had frequent attacks of colic that require catheter drainage, or frequent attacks of colic with infection and impairment of kidney function, the criteria for a rating higher than 10 percent under DC 7509 have not been met or more nearly approximated.  Finally, as the Veteran is not shown to have severe hydronephrosis, a rating based on renal dysfunction is not warranted.  See 38 C.F.R. § 4.115b, DC 7509. 

The Veteran has stated that a higher rating for his kidney condition should be assigned based on urinary frequency.  See July 2010 VA Form 21-4138.  Because he is a lay person in the field of medicine, his belief that his kidney condition causes urinary frequency is not competent evidence, as this is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  In this regard, there is no cause-and-effect relationship between the Veteran’s kidney condition and his urinary frequency that can be perceived solely through the senses.  Thus, his statement on that issue is not probative.  By contrast, the VA examiners found that the Veteran’s kidney condition did not cause urinary frequency, which instead was due to his benign prostatic hypertrophy.  These findings by medical professionals are competent and probative.  Accordingly, the Board finds that the Veteran’s kidney condition is not manifested by urinary frequency; therefore, a rating based on urinary frequency is not applicable. 

In an August 2020 statement, the Veteran wrote that at the time of the 2013 surgical removal of a kidney stone, he was told that his kidney is “misshaped,” with a depression adjacent to the ureter that caused his stones to accumulate in that depression rather than to pass, which could lead to the pain he frequently complained of in that area.  The MTF records do not reflect such findings.  Moreover, the record does not show the accumulation of kidney stones.  Rather, the Veteran had surgical removal of a kidney stone in 2013; otherwise, the MTF and VA treatment records do not show treatment or complaints related to his kidney.  According to the March 2020 VA examination report, the Veteran stated that he passed his kidney stones.  The Veteran’s episodes of colic pain and passing of stones are contemplated by the 10 percent rating assigned under DC 7509 for occasional attacks of colic without infection and not requiring catheter drainage.

Finally, the Board notes that service connection has been established for kidney stones with uteropelvic junction obstruction.  The medical evidence does not show that the Veteran’s kidney condition has been manifested by symptoms or pathology other than what is described above.

Because the preponderance of the evidence is against a higher rating for the Veteran’s kidney stone condition, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Restless Leg Syndrome

The Veteran seeks a higher rating for his service-connected restless leg syndrome.  See March 2010 VA Form 21-4138.  His restless leg syndrome has been rated by analogy to neuralgia of the anterior crural nerve (femoral) under 38 C.F.R. § 4.124a, DC 8526.  See 38 C.F.R. § 4.20 (providing for analogous ratings when a disability is not listed in the rating schedule).  His left and right lower extremities have each been assigned 10-percent ratings under DC 8526.  For the following reasons, the Board finds that higher ratings are not warranted. 

Under DC 8526, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; and a 30 percent rating for severe incomplete paralysis.  A maximum 40 percent rating is assigned for complete paralysis, with paralysis of quadriceps extensor muscles.  

The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a; Note prefacing DC’s 8510 through 8730.

Neuralgia, cranial or peripheral, is characterized usually by a dull and intermittent pain, of typical distribution to as to identify the nerve, and is to be rated on the same scale as the nerve involved, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124.

Turning to the evidence, a VA examination was performed in November 2010.  The examination report reflects that the Veteran reported tingling and numbness in his legs, abnormal sensation, pain, and pins/needles sensation.  There was no anesthesia, weakness of the affected parts, or paralysis of the affected parts.  The symptoms were painful sensations causing the legs to jerk around and which sometimes felt like an itching sensation or a pins/needles sensation.  The symptoms occurred intermittently, up to two times per week.   Each occurrence lasted one week.  The number of attacks within the past year was four.  During flare-ups, his restless leg syndrome resulted in functional impairment by causing loss of sleep leading to fatigue and reduced ability to work.  A neurological examination of the lower extremities showed that motor function was within normal limits.  Sensory testing with regard to pinprick/pain, touch, position, vibration and temperature was intact in the right and left lower extremities.  Reflex testing of the right and left lower extremities was 2+.  Peripheral nerve involvement was not evidence during examination.  The examiner noted that review of a sleep study conducted in January 1995 (during the Veteran’s service) showed frequent periodic nocturnal leg movement average 10 an hour during sleep. 

In a July 2012 addendum to the November 2010 VA examination report, the examiner who conducted that examination confirmed the finding that neurological examination of the Veteran’s lower extremities was within normal limits at the time, with no peripheral nerve involvement evident.  The examiner explained that restless leg syndrome can be either primary (idiopathic) or secondary to other conditions including iron deficiency, uremia, diabetes mellitus, Parkinson’s disease, pregnancy, peripheral neuropathies, rheumatic disease, and venous insufficiency.  The diagnosis of primary restless leg syndrome is made based on the presence of typical symptoms associated with restless leg syndrome “and in the presence of a normal neurologic examination.”  In context, the Board finds that statement to mean that absent an apparent underlying cause for the restless leg syndrome, such as a neurological condition, it is characterized as primary.  The examiner concluded that a specific nerve involved could not be identified as the Veteran’s restless leg syndrome was primary. 

The medical evidence, including VA treatment records dated through July 2020, does not show complaints of restless leg syndrome or diagnoses or treatment of restless leg syndrome. 

The Board finds that ratings higher than 10 percent for restless leg syndrome are not warranted for either lower extremity.  No neurological abnormality has been identified as causing or underlying the Veteran’s restless leg syndrome, which the July 2012 VA medical opinion explains is primary or idiopathic in nature.  Thus, to the extent the Veteran’s restless leg syndrome can be analogized to a peripheral nerve injury, it would most closely correspond to mild incomplete paralysis.  In this regard, the involvement is wholly sensory, and the Veteran’s lower extremities have had normal motor function and reflexes.  Indeed, apart from reduced sleep, which will be addressed below, the Veteran’s restless leg syndrome is not shown to cause functional impairment.  The Board further observes that even if the Veteran were subsequently to develop neurological impairment of the lower extremities, including motor impairment, that in itself would not support a higher rating, since the Veteran’s restless leg syndrome is not in fact a neurological condition or a result of such, as discussed above. 

With regard to the application of DC 8526, which pertains to the anterior crural nerve (femoral), the Board finds that because the Veteran’s restless leg syndrome does not meet or more nearly approximate the criteria for moderate incomplete paralysis or a more severe level of paralysis, no other diagnostic code applicable to peripheral nerve injuries would afford a higher rating.  See 38 C.F.R. § 4.124a.  That is because none of those diagnostic codes provides for a rating higher than 10 percent for mild incomplete paralysis.  

With regard to sleep impairment due to restless leg syndrome, the rating schedule does not recognize sleep impairment in itself as a ratable disability.  However, the Board notes that a 50-percent rating has been assigned the Veteran’s sleep apnea under 38 C.F.R. § 4.97, DC 6847.  Diagnostic Code 6847 assigns a 30 percent rating for sleep apnea manifested by persistent day-time hypersomnolence.  Thus, to the extent the Veteran’s restless leg syndrome causes sleep impairment resulting in daytime fatigue, that symptom is already effectively compensated by the 50-percent rating assigned for his sleep apnea.  To be clear, the Board does not mean to suggest a finding that the Veteran’s restless leg syndrome causes persistent daytime hypersomnolence or can be analogized to sleep apnea, but it is clear in this case that to assign a separate rating based on sleep impairment would amount to compensating for the same symptom under various diagnoses, in violation of the rule against pyramiding.  See 38 C.F.R. § 4.14.

The Board has also considered the fact that sleep impairment is a symptom contemplated under General Rating Formula for Mental Disorders (General Rating Formula).  See 38 C.F.R. § 4.130.  However, and purely for the sake of argument, even if a rating by analogy could be assigned through applying that formula, the record does not show that any sleep impairment due to restless leg syndrome causes more than mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  Under the General Rating Formula, a 10 percent rating is assigned for that disability picture.  Thus, application of the General Rating Formula would not result in a higher rating, as the Veteran has effectively been assigned a 20-percent rating for his restless leg syndrome via assignment of separate 10-percent ratings for the right and left lower extremities.  The record does not show 

occupational and social impairment with intermittent periods of inability to perform occupational tasks due to chronic sleep impairment, for which a 30 percent rating is assigned under the General Rating Formula.  Moreover, and in the alternative, the 50-percent rating assigned the Veteran’s sleep apnea already contemplates the effects of sleep impairment, since, under DC 6847, a 30-percent rating is assigned for persistent day-time hypersomnolence.  The higher 50-percent rating thus necessarily already compensates for that symptom. 

The Board has also considered DC 8103, which pertains to a convulsive tic.  38 C.F.R. § 4.124a.  Under DC 8103, a 0 percent rating is assigned for a mild convulsive tic; a 10 percent rating is assigned for a moderate convulsive tic; and a 30 percent rating is assigned for a severe convulsive tic.  The rating to be assigned under DC 8103 depends upon the frequency, severity, and muscle groups involved.  38 C.F.R. § 4.124a, DC 8103, NOTE.  

Here, if the Veteran’s restless leg syndrome can be analogized to a convulsive tic, the Board finds that his intermittent symptoms, which generally do not result in functional impairment and only manifest when he is asleep, equate to no more than a moderate convulsive tic; therefore, the criteria for a rating higher than 10 percent are not met under DC 8103 for either lower extremity.  It is also not clear that more than one 10-percent rating could be assigned under DC 8103 for the Veteran’s restless leg syndrome.  A separate rating under DC 8103 may not be assigned.  As explained above, the Veteran’s restless leg syndrome has been rated by the AOJ as analogous to incomplete paralysis of a peripheral nerve.  The record does not show that his restless leg syndrome is manifested both by symptoms akin to a peripheral neuropathy and a convulsive tic.  Rather, the AOJ chose DC 8526 as the diagnostic code most closely analogous to the Veteran’s restless leg syndrome.  That diagnostic code is just as, if not more, favorable than DC 8103 in this case. 

In sum, the Board finds that ratings higher than 10 percent for restless leg syndrome of each lower extremity are not warranted.  Because the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400. In claims for direct service connection, if the claim is received within one year after separation from active service, the effective date of the award is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).  Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o).  Thus, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period.  Id.; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Hazan v. Gober, 10 Vet. App. 511, 519 (1992). 

Where pension, compensation, or disability and indemnity compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue.  38 U.S.C. § 5110(g).  In no event shall such award or increase be retroactive for more than one year from the date of the application for such award or the date of administrative determination of entitlement, whichever is earlier.  Id.  

With respect to the date of claim, a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151.  

Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim.  38 C.F.R. § 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  Such informal claims must identify the benefit sought.  38 C.F.R. § 3.155(a) (2014).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim.  Id. 

Also effective prior to March 2015, VA regulation provided, in relevant part, that a report of examination, treatment, or hospital admission by VA will be accepted as the date of receipt of claim for increased benefits when it pertains to a disability for which service connection has previously been established.  38 C.F.R. § 3.157.  In order to qualify as an informal claim under § 3.157, the VA report in question must (1) identify a specific, particular examination and the date of such examination, and (2) must indicate that the disability has worsened since the last time it was evaluated.  Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d, Massie v. Shinseki, 724 F.3d 1325 (Fed. Cir. 2013).  Unlike other informal claims, there is no requirement that an intent to file a claim be shown under § 3.157.  Further, the provisions of 38 C.F.R. § 3.400(o), whereby a rating increase can be granted up to one year prior to the date of claim, also apply to claims submitted under § 3.157.  Massie, 25 Vet. App. at 132.  

Effective Date of 50 Percent Rating for Obstructive Sleep Apnea

The Veteran seeks to establish an effective date prior to October 15, 2008 for the 50 percent rating for his service-connected obstructive sleep apnea, including on the basis of CUE in the June 1996 rating decision that granted service connection for sleep apnea.  More specifically, he states that he was using a continuous airway pressure (CPAP) machine since active service, and therefore a 50 percent rating should have been assigned at the time of the June 1996 rating decision.  See January 2017 Hearing Transcript.  Under current DC 6847, a 50-percent rating is assigned for sleep apnea that requires use of a breathing assistance device such as a CPAP machine.  38 C.F.R. § 4.97.  He also states that he should have been timely notified of the amendment to the rating schedule that added DC 6847 effective October 7, 1996.  See July 2014 Statement.  

As explained below, the Board finds that an effective date of May 4, 2008 is warranted for the assignment of the 50-percent rating based on the RO’s initial finding as to the date of claim for an increased rating, and pursuant to the effective date provisions of 38 C.F.R. § 3.114 concerning liberalizing laws.  The Board also finds that CUE was not committed in the June 1996 rating decision, and that the criteria for an effective date earlier than May 4, 2008 based on date of claim are not satisfied.

At the time of the June 1996 rating decision, the rating schedule did not contain a diagnostic code specific to sleep apnea.  See 38 C.F.R. § Part IV (1996). Consequently, the Veteran’s sleep apnea was rated by analogy to a listed disability.  See 38 C.F.R. § 4.20 (providing for analogous ratings when a disability is not listed in the rating schedule).  More specifically, the RO rated it under DC 6520, which pertained to stenosis of the larynx, and assigned a 10 percent rating under that diagnostic code.  Under the version of DC 6520 then in effect, a 10 percent rating was assigned for mild stenosis of the larynx, with dyspnea on heavy exertion. 

The Veteran does not argue that there was CUE in the application of the version of DC 6520 then in effect, or in the selection of that diagnostic code to rate his sleep apnea.  Instead, he makes the general assertion that as his sleep apnea required use of a CPAP machine at the time of that decision, a 50 percent rating should have been assigned. 

As an initial matter, the Board finds that the June 1996 rating decision is final.  In this regard, the Veteran was notified of the decision and his appellate rights in a July 1996 letter.  See 38 U.S.C § 5104; 38 C.F.R. §§ 3.103, 19.25.  He did not file a Notice of Disagreement (NOD) with respect to the initial rating of his sleep apnea.  See 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal).  Moreover, he did not submit new and material evidence within one year of the date of mailing of the June 1996 rating decision with respect to the evaluation of his sleep apnea.  See 38 C.F.R. § 3.156; Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  Accordingly, the June 1996 rating decision is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 

Previous determinations which are final and binding will be accepted as correct in the absence of CUE.  38 C.F.R. § 3.105(a).  Where evidence establishes such error, the prior decision will be reversed or amended.  38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a).  For the purpose of authorizing benefits, a rating decision or other decision that constitutes a reversal or revision of a prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the reversed decision.  Id.

The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994).  Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred.  See Porter v. Brown, 5 Vet. App. 233 (1993).

CUE is the kind of error that “when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff’d on reconsideration, 6 Vet. App. 162, 163 (1994).

Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE.  Fugo, 6 Vet. App. at 44.  Similarly, general and unspecified allegations of error based on the failure to follow regulations, failure to satisfy due process requirements, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of “error” are too broad to show CUE.  Fugo, 6 Vet. App. at 44.  

There is a three-part test to determine whether a decision must be revised or reversed based on CUE: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied;” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made;” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel, 6 Vet. App. at 245; Wilson v. West, 11 Vet. App. 383, 386 (1998).

The Board finds that the June 1996 rating decision did not commit a clear and unmistakable error of fact or law.  As discussed above, there was no diagnostic code applicable to sleep apnea at the time of the June 1996 rating decision, or a diagnostic code that assigned a rating based on use of a breathing assistance device such as a CPAP machine.  Indeed, the rating decision notes that the Veteran used a CPAP machine to control his sleep apnea.  As there was no diagnostic code applicable to sleep apnea at the time, or a provision for assigning a rating higher than 10 percent based on use of a CPAP machine, the Board finds that the June 1996 rating decision did not commit an undebatable error of law in not assigning a rating of 50 percent based on use of a CPAP machine, or in applying DC 6520 to rate the Veteran’s sleep apnea at the time.  The Veteran has not argued that there was an error of fact in that decision.  

Accordingly, the motion to revise the June 1996 rating decision on the basis of CUE with respect to the initial 10-percent rating assigned the Veteran’s sleep apnea is denied.

VA’s rating schedule applicable to respiratory disorders was amended effective October 7, 1996.  See 61 Fed. Reg. 46,720 (September 5, 1996).  That amendment included the addition of DC 6847, which pertains to sleep apnea syndromes and, as noted, assigns a 50 percent rating when sleep apnea requires use of a CPAP.  Id. at 46,730.  The final rule was published in the Federal Register on September 5, 1996.  

Unfortunately, there is no provision of law that allows for an earlier effective date solely because DC 6847 was added to the rating schedule a few months after the June 1996 rating decision was issued.  The Veteran did not appeal that decision, as discussed above, and there was no pending formal or informal claim for an increased rating, including by way of a report of examination, treatment, or hospital admission under 38 C.F.R. § 3.157, at the time that the addition of DC 6847 went into effect.  He does not state otherwise. 

The Veteran states that VA made no attempt to notify him regarding the amendment to the rating schedule adding DC 6847, and that VA had a duty to do so.  See July 2014 Statement.  He stated that he immediately filed a claim for an increased rating when he became aware of the change in the rating schedule, indicating that he would have filed the claim back in 1996 had he been notified of the change.  See id.

The Board understands the Veteran’s frustration.  At the same time, it finds no basis in law for assigning an earlier effective date due to lack of notice of the regulatory change.  The Board notes that when DC 6847 was added to the rating schedule in October 1996, 38 U.S.C. § 7722(c)(1) was in effect, which provided, in pertinent part, that “[t]he Secretary [of VA] shall distribute full information to eligible veterans . . . regarding all benefits and services to which they may be entitled . . .” Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003) (quoting 38 U.S.C. § 7722).  Section 7722 of the statute has since been repealed.  For the reasons that follow, the Board finds that any error committed by VA with respect to section 7222 in failing to notify the Veteran of the addition of DC 6847 to the rating schedule is not a basis for assigning an earlier effective date. 

The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the provisions of section 7722 “appear to be hortatory rather than to impose enforceable legal obligations upon the Secretary.”  Rodriguez v. West, 189 F.3d 1351, 1355 (Fed. Cir. 1999).  The Federal Circuit further held that any failure to notify under section 7722 is not a basis for assigning an effective date earlier than permitted by the provisions of section 5110 of the statute.  Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003).  

There is also no basis in law for finding that any failure to comply with section 7722 vitiated the finality of the June 1996 rating decision.  See id. (noting that section 7722 did not prescribe any remedy for its breach) (citing Rodriguez, 189 F.3d. at 1355); cf. Gattis v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 492 (nonprecedential memorandum decision finding that the Board’s failure to discuss section 7722 was not prejudicial, since any section 7722 error could not vitiate the finality of a prior rating decision so as to provide a basis for assigning an earlier effective date).  

Accordingly, the Board finds that the issue of whether VA had a duty under 38 U.S.C. § 7222 to notify the Veteran of the addition of DC 6847 to the rating schedule is moot in terms of whether an earlier effective date may be assigned, since any failure to comply with such duty is not a basis for assigning an earlier effective date or rendering the June 1996 rating decision nonfinal.  See Andrews, 351 F.3d at 1137. 

The Veteran did not file a claim for an increased rating for his sleep apnea until October 15, 2009.  See October 15, 2009 VA Form 21-4138.  Nevertheless, the April 2010 rating decision granted a 50 percent rating for his sleep apnea effective May 4, 2009.  While he submitted an express informal claim for an increased rating on October 15, 2009, the April 2010 rating decision found that May 4, 2009 was the effective date of claim pursuant to § 3.157 based on a VA treatment record of that date showing that a new CPAP machine had been ordered for him.  

In a May 2014 rating decision, the RO found that the April 2010 rating decision committed CUE in assigning an effective date of May 4, 2009 because it did not apply the effective date provisions of 38 C.F.R. § 3.114 with respect to liberalizing laws.  The May 2014 rating decision determined that, pursuant to 38 C.F.R. § 3.114, an effective date of October 15, 2008 was warranted for the increased rating, which is one year prior to October 15, 2009, the date of the Veteran’s express informal claim filed via the VA Form 21-4138.  

Preliminarily, the Board observes that, contrary to the May 2014 rating decision’s finding, there is no need to determine that there was CUE in the April 2010 rating decision in order to assign an earlier effective date for the award of the 50-percent rating for the Veteran’s sleep apnea, because the Veteran has timely appealed that decision with respect to that issue.  See April 2010 Notice of Disagreement; July 2014 Correspondence (accepted by agency of original jurisdiction as substantive appeal in lieu of VA Form 9). 

While the Veteran filed a claim for an increased rating for his sleep apnea on October 15, 2009, the April 2010 rating decision determined that the May 4, 2009 VA treatment record constituted an informal claim under then extant § 3.157.  The agency of original jurisdiction (AOJ) has not altered its finding as to whether that record constitutes an informal claim.  As it is favorable to the Veteran, the Board will not second guess the AOJ’s conclusion that the VA treatment record satisfied the provisions of section 3.157.  Therefore, pursuant to 38 C.F.R. § 3.114, an effective date of May 4, 2008 is warranted for the 50-percent rating, which is one year prior to the May 4, 2009 date of claim.  

The Board finds that an effective date earlier than May 4, 2008 may not be assigned based on the date of claim, for the following reasons. 

Where compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA or by the Secretary’s direction, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114.  If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue.  Id.  If a claim is reviewed on the initiative of VA more than one year after the effective date of the liberalizing VA law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement.  Id.  If a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing VA law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request.  Id. 

In order for a claimant to be eligible for a retroactive payment under section 3.114, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.  Id.  The retroactive provisions section 3.114 apply both to original and reopened claims, as well as to claims for increase. Id. 

Here, the record does not show a formal or informal claim prior to May 4, 2009.  The Board has accepted that date as the date of claim based on the AOJ’s favorable finding on that issue in its April 2010 rating decision.  Its subsequent determination that an effective data of October 15, 2008 is warranted under the provisions of section 3.114 did not account for its earlier finding that the date of claim is May 4, 2009 rather than October 15, 2009.  As section 3.114 does not allow for an effective date earlier than one year prior to the date of claim or administrative determination of entitlement, the Board finds that May 4, 2008 is the proper effective date for the increased rating.

There is no other basis in the statue or regulations for assigning an earlier effective date based on date of claim.  An award of a higher rating based on a claim for an increased rating may not be earlier than one year prior to the date of claim, or the administrative determination of entitlement.  38 U.S.C. § 5110(a), (b)(2), (g).  As there was no formal or informal claim for an increased rating prior to May 4, 2009, and as the rating decision that granted the 50-percent rating was issued in April 2010, an effective date earlier than May 4, 2008 may not be assigned under these provisions.  There is no other provision that affords a basis for the assignment of an effective date earlier than May 4, 2008 based on the date of claim. 

In sum, the Board finds that the criteria for an effective date of May 4, 2008 for the 50-percent rating for the Veteran’s sleep apnea have been met.  An effective date earlier than May 4, 2008 must be denied as a matter of law based on the date of claim.  See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400. 

 

REASONS FOR REMAND

Chronic Fatigue

The Board finds that a new VA medical opinion is warranted as to whether the Veteran has chronic fatigue syndrome.  

In the March 2020 opinion, the examiner stated that the Veteran’s symptoms do not satisfy the Center for Disease Control (CDC) criteria for a diagnosis of chronic fatigue syndrome.  However, the examiner did not address whether VA’s criteria for establishing chronic fatigue syndrome under 38 C.F.R. § 4.88a have been met.  The examiner did not otherwise provide an explanation as to why the criteria are not met apart from noting that fatigue in itself is not considered an undiagnosed illness or MUCMI.   The examiner also did not address whether the Veteran’s other symptoms, when considered in conjunction with his fatigue, may establish the diagnosis.  Finally, the examiner stated that review of the claims file and available medical records does not show a previous diagnosis of chronic fatigue syndrome.  However, a January 2010 VA Gulf War examination report shows a diagnosis of chronic fatigue syndrome.  The Board explained in its prior remand why that diagnosis was not sufficient to make an informed decision, but the VA medical opinion is inaccurate in stating that there is no previous diagnosis of chronic fatigue syndrome.  

Accordingly, the claim is remanded for a new VA medical opinion that addresses the issues discussed above. 

Gastrointestinal Condition 

The Board finds that a new VA medical opinion is warranted as to whether the Veteran’s gastrointestinal conditions are related to active service.  

In the March 2020 VA medical opinion, the examiner determined that the Veteran’s gastrointestinal conditions were not manifestations of an undiagnosed illness or MUCMI; rather, they were diagnosed, in pertinent part, as gastroesophageal reflux disease (GERD) and diverticulosis of the colon.  The examiner opined that these conditions are less likely than not related to the Veteran’s service because the service treatment records do not show a diagnosis of such, and the initial diagnoses were in 2010 and 2016, years after the Veteran’s separation.  

VA law does not require that there be a diagnosis of the condition during service to establish service connection.  See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(d).  Moreover, the examiner’s opinion does not account for the fact that the Veteran reported gastric pain, heartburn, and belching during service.  Indeed, a January 1995 service treatment record states that GERD would need to be ruled out.  An April 1996 VA examination report,  which is dated only a few months after the Veteran’s separation from service—which was in January 1996—reflects that he continued to have gastrointestinal complaints.  He has stated that his gastrointestinal symptoms have been a constant problem since active service.  See May 2010 VA Form 21-4138.  

Accordingly, a new VA medical opinion must be obtained that takes the above history into account, and is not merely based on the absence of a diagnosis until several years after service.  

Bilateral Elbow Conditions

The Board finds that a new VA medical opinion is warranted as to whether the Veteran’s bilateral elbow conditions are related to his active service.  

In the March 2020 VA medical opinion, the examiner determined that the Veteran’s bilateral elbow conditions were not manifestations of an undiagnosed illness or MUCMI; rather, the examiner diagnosed lateral epicondylitis.  The examiner opined that the Veteran’s bilateral elbow conditions were less likely than not related to service because the service treatment records are silent for a diagnosis, “with initial evidence of [a] diagnosis of the claimed condition [in] 2020,” presumably in reference to examiner’s own diagnosis.  

As with the opinion regarding the Veteran’s gastrointestinal conditions, the March 2020 VA opinion is impermissibly based on an absence of an in-service diagnosis, and indeed illogically relies on its own diagnosis to somehow suggest that because epicondylitis was not diagnosed until the examiner rendered that diagnosis, it therefore is not related to service because it first came into existence when it was given a clinical name.  The opinion ignores the fact that the service treatment records show a complaint of elbow pain in November 1993, and the November 1995 report of medical history shows that the Veteran had arthralgia in the elbows and knees.  He states that he has experienced recurring elbow pain ever since service.  The opinion also does not account for an April 1996 VA examination report, dated a few months after separation, showing complaints of joint pain (although the specific joints are not specified), or the report of a January 1997 VA orthopedic examination (conducted by an outside clinic) which states that the Veteran had recurrent joint pain in the elbows and knees bilaterally since his final radiation therapy for larynx cancer in service.  

On remand, a new VA medical opinion must be obtained that considers the Veteran’s recurring elbow pain during and since service, and which does not rely solely on the absence of a diagnosis during service. 

Bilateral Knee Conditions 

The Board finds that a new VA medical opinion is warranted as to whether the Veteran’s bilateral knee conditions are related to his active service.  

In the March 2020 VA medical opinion, the examiner determined that the Veteran’s bilateral knee conditions were not manifestations of an undiagnosed illness or MUCMI; rather, the examiner diagnosed degenerative arthritis. The examiner opined that the Veteran’s bilateral knee degenerative arthritis is less likely than not related to service because it was not diagnosed in service or until 2015.  

The March 2020 opinion does not account for the Veteran’s in-service complaint of joint pain in the knees in January 1995, or the November 1995 report of medical history reflecting a notation of arthralgia in the elbows and knees.  It also does not account for an April 1996 VA examination report, dated a few months after separation, showing complaints of joint pain (although the specific joints are not specified), or the report of a January 1997 VA orthopedic examination (conducted by an outside clinic) which states that the Veteran had recurrent joint pain in the elbows and knees bilaterally since his final radiation therapy for larynx cancer in service.  It is also impermissibly based on the absence of an in-service diagnosis. 

Accordingly, a new VA medical opinion must be obtained that considers the Veteran’s recurring knee pain during and since service, and which does not rely solely on the absence of a diagnosis during service. 

Actinic Dermatitis

The Board finds that a new VA medical opinion is warranted on the issue of whether the Veteran’s actinic dermatitis is related to service.                                                      

The Veteran claims service connection for skin rashes as due to in-service radiation treatment for his service-connected squamous cell carcinoma, or as a result of his Persian Gulf service.  See October 2009 VA Form 21-4138.  The medical evidence shows that, in addition to service-connected herpes zoster, he has a sun allergy diagnosed as actinic dermatitis.  A September 2005 private treatment record states that the Veteran has a prominent skin allergy which requires frequent use of corticosteroids.  A November 2009 letter from a private treating physician, Dr. Herbke, states that the Veteran has severe actinic dermatitis, and that this skin condition was unusual for the Veteran’s type of skin.  The March 2020 VA examination also reflects a diagnosis of actinic dermatitis.  

The March 2020 VA examination report states that the Veteran related that after returning from service in the Persian Gulf, he noticed an intermittent skin rash over his upper torso, upper arms, and neck.  He stated that he complained of the rash while in service, but did not recall any “medical work up done.”  After he separated from service, he was treated for a skin condition triggered by prolonged (more than one to two hours) sun exposure.  The treatment consisted of steroid injections.  The examiner opined that the Veteran’s actinic dermatitis is less likely than not related to service because the service treatment records are silent for actinic dermatitis, and there is no documentation of this condition until “2001-2006,” more than twelve months after the Veteran’s separation from service. 

The March 2020 VA medical opinion is not adequate to make an informed decision, as it does not account for the Veteran’s reported history, and is based exclusively on an absence of documentation of actinic dermatitis until several years after his service separation.  Such documentation is not required to establish service connection.  The Veteran’s statement at the March 2020 VA examination that he experienced a rash on his upper body is competent.  The rash diagnosed as herpes zoster in July 1985 involved his legs and inner thighs.  While it is not clear whether the rash he noticed after returning from the Persian Gulf was distinct in appearance or symptoms from his herpes zoster, the Board finds that such a distinction would likely be readily observable, unless both conditions have a substantially similar presentation.

On remand, a new VA medical opinion must be obtained that addresses the Veteran’s reported history that he experienced a rash involving his torso, upper arms, and neck after he returned from the Persian Gulf.  He may have been referring to the same rash that was subsequently diagnosed as actinic dermatitis, rather than herpes zoster.  Unless the distinction between these skin conditions is subtle in terms of their appearance or symptomatology, medical expertise would not be required to realize that they are in fact distinct, and that the rash he experienced after his Persian Gulf service was the same as that which, when it subsequently manifested after separation, was later diagnosed as actinic dermatitis.  

The fact that there is no documentation of actinic dermatitis until after service is not a basis in itself for concluding that it is not related to service.  As just stated, although the Veteran may not have been able to diagnose the rash that affected his upper body as actinic dermatitis at the time, he may be competent to determine that it was the same type of rash that was subsequently identified as actinic dermatitis.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  

Accordingly, a new medical opinion is warranted that considers the Veteran’s report of an in-service manifestation of a skin rash, and which is not based solely on an absence of documentation of actinic dermatitis during service. 

Residuals of Squamous Cell Carcinoma of Left Vocal Cord Since October 18, 2019

A VA medical opinion is warranted to determine whether the Veteran’s residuals of squamous cell carcinoma of the left vocal cord satisfy the criteria for a 30 percent rating under DC 6516 since October 18, 2019.  In this regard, a June 2020 VA treatment record reflects that the Veteran reported worsening of hoarseness that began in February 2020.  A fiberoptic direct laryngoscopy examination showed a right true vocal cord mid-membranous lesion that was minimal.  He was assessed with a stable membranous lesion of the right arytenoid. 

The Board finds that a VA medical opinion is needed to determine whether the lesion found in the June 2020 examination is tantamount to thickening or nodules of cords, polyps, or submucous infiltration, so as to satisfy or more nearly approximate the criteria for a 30 percent rating under DC 6516.  As discussed above in the body of this decision, the Veteran underwent laser treatment for the polyp diagnosed in April 2019, which presumably was removed or substantially diminished through that treatment.  A fiberoptic direct laryngoscopy conducted in October 2019 showed no lesions or masses, and he reported significant improvement in his voice at that time.  It is thus unclear whether the lesion noted in the June 2020 examination is a new finding, and what its significance is vis-à-vis the above-mentioned rating criteria.  Accordingly, a VA medical opinion must be obtained to make an informed decision on this issue. 

Low Back Disability 

The Board finds that the March 2020 VA examination report does not satisfy the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) regarding flare ups of symptoms.  The examiner noted that the Veteran experienced flare ups of low back symptoms about six times per year, but says nothing more regarding their severity, impact on functioning, or duration.  The examiner also stated that there is no additional functional loss during flare ups, without providing an explanation.  

Accordingly, a new VA examination is warranted that adequately describes the frequency, severity, and duration of any flare ups of back pain, precipitating and alleviating factors, and their impact on functioning, including, if possible, an estimate of additional loss of range of motion.  See id.

The matters are REMANDED for the following action:

1. Obtain a new VA medical opinion as to whether a diagnosis of chronic fatigue syndrome is warranted under the criteria set forth in 38 C.F.R. § 4.88a.  The opinion must specifically address that criteria, and be supported by a complete explanation.  

2. Obtain a new VA medical opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a gastrointestinal condition, including GERD, Barrett’s esophagus, and/or diverticulosis of the colon related to active service, including his in-service gastrointestinal symptoms. 

The examiner must address the fact that in January 1995, after his deployment to the Persian Gulf, the Veteran complained of stomach pain, soft stools for the past year, gastric pain, heartburn, and frequent belching.  It was noted that GERD would need to be ruled out on examination.  A September 1995 entry reflects that the Veteran complained of an occasional upset stomach.  An April 1996 VA examination report, which is dated only a few months after the Veteran’s separation from service, reflects that he continued to have gastrointestinal complaints.  He has stated that his gastrointestinal symptoms have been a constant problem since active service.  See May 2010 VA Form 21-4138.  

The examiner is advised that the sole fact that GERD was not diagnosed until some time after service is not a valid basis in itself for finding against a link to the Veteran’s in-service symptoms.  

The examiner must provide a complete explanation in support of the conclusion reached.

3. Obtain a new VA medical opinion as to whether it is at least as likely as not that the Veteran’s bilateral elbow conditions, including epicondylitis, are related to his service, including the in-service elbow pain.  

The examiner must consider the Veteran’s complaint of elbow pain in November 1993, and the November 1995 report of medical history showing that he had arthralgia in the elbows and knees.  The examiner must also consider the January 1997 VA orthopedic examination report (issued by an outside clinic) which states that the Veteran had recurrent joint pain in the elbows and knees bilaterally since his final radiation therapy for larynx cancer in service. 

The examiner is advised that the sole fact that a specific elbow condition was not diagnosed until some time after service is not a valid basis in itself for finding against a link to the Veteran’s in-service symptoms.  

The examiner must provide a complete explanation in support of the conclusion reached

4. Obtain a new VA medical opinion as to whether it is at least as likely as not that the Veteran’s bilateral knee conditions, including degenerative arthritis, are related to his service, including his in-service knee pain.  

The examiner must consider the Veteran’s complaint of joint pain in the knees in January 1995, and the November 1995 report of medical history showing that he had arthralgia in the elbows and knees.  The examiner must also consider the January 1997 VA orthopedic examination report (issued by an outside clinic) which states that the Veteran had recurrent joint pain in the elbows and knees bilaterally since his final radiation therapy for larynx cancer in service. 

The examiner is advised that the sole fact that a specific knee condition was not diagnosed until some time after service is not a valid basis in itself for finding against a link to the Veteran’s in-service symptoms.  

The examiner must provide a complete explanation in support of the conclusion reached

5. Obtain a new VA medical opinion as to whether it is at least as likely as not that the Veteran’s actinic dermatitis is related to service, including an in-service skin rash. 

The examiner must consider the fact that while actinic dermatitis is not documented in the service treatment records, the Veteran related at the March 2020 VA examination that he experienced an intermittent rash over his upper torso, upper arms, and neck after returning from service in the Persian Gulf.  The examiner should consider whether that rash may be distinct from the herpes zoster, and whether it is medically linked to the actinic dermatitis diagnosed after service based on subsequent rashes.  Although the Veteran may not have been able to diagnose the rash that affected his upper body as actinic dermatitis at the time, he may be competent to determine that it was the same type of rash that was subsequently identified as actinic dermatitis.

The examiner is advised that the sole fact that actinic dermatitis is not documented in the service treatment records is not a valid basis in itself for finding against a link to the Veteran’s in-service symptoms. 

The examiner must provide a complete explanation in support of the conclusion reached.

6. Obtain a VA medical opinion as to whether, since October 2019, the Veteran has had a vocal cord condition tantamount to thickening or nodules of cords, polyps, or submucous infiltration based on the findings in the June 2020 VA otolaryngology record.  See 38 C.F.R. § 4.97, DC 6516.  That record states that a fiberoptic direct laryngoscopy showed a right true vocal cord mid-membranous lesion that was minimal.  The Veteran was assessed with a stable membranous lesion of the right arytenoid.  The examiner is asked to address whether that lesion is akin to thickening or nodules of cords, polyps, or submucous infiltration.  In this regard, the examiner should consider the fact that in April 2019, the Veteran was diagnosed with a polyp of the right true vocal cord, and underwent laser treatment in June 2019.  

The examiner must provide a complete explanation in support of the conclusion reached. 

7. Arrange for a new examination to assess the severity of the Veteran’s low back disability.  A thorough examination, including any indicated tests and studies (as determined within the discretion of the examiner) should be conducted, and all pertinent clinical findings recorded. 

In addition to all other pertinent findings, the examiner must obtain from the Veteran, to the extent possible, a full description of the severity, frequency, and duration of any flare-ups, their effect on functioning, and precipitating and alleviating factors.  

The examiner is asked to provide an estimate of additional loss of range of motion, if any, during a flare-up or on repeated use over time.  In this regard, the examiner should state, if possible, whether during flare-ups or with repeated use over time, forward flexion of the thoracolumbar spine would be limited to 30 degrees or less.  A more exact estimate need not be provided.  If the examiner is unable to provide such an estimate, the examiner must explain why the available information, including the Veteran’s statements, medical history, and the examination findings, is not sufficient for that purpose.

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Rutkin, 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.