Citation Nr: 1829773	
Decision Date: 08/01/18    Archive Date: 08/17/18

DOCKET NO.  02-13 177	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy affecting the right and left upper extremities.  

2.  Entitlement to service connection for peripheral neuropathy affecting the right and left lower extremities.  

3.   Entitlement to an effective date earlier than July 11, 2000 for the award of a 40 percent rating for a chronic lumbar strain.  

4.  Entitlement to an effective date earlier than October 14, 2008, for the award of service connection for diabetes mellitus.  

5.  Entitlement to an earlier effective date earlier than December 1, 1991 for the award of service connection for myofascial and vascular cephalgia.

6.  Entitlement to an effective date earlier than June 19, 2014 for the award of service connection for right upper extremity peripheral neuropathy.

7.  Entitlement to an effective date earlier than June 19, 2014 for the award of service connection for left upper extremity peripheral neuropathy.

8.  Entitlement to an effective date earlier than June 19, 2014 for the award of service connection for right lower extremity peripheral neuropathy.

9.  Entitlement to an effective date earlier than June 19, 2014 for the award of service connection for left lower extremity peripheral neuropathy.

10.  Entitlement to an increased rating for a chronic lumbar strain, to include a rating in excess of 10 percent prior to July 11, 2000, and a rating in excess of 40 percent for the period beginning July 11, 2000.  

11.  Entitlement to an increased rating for a history of cervical strain with C5-C6 degenerative disc disease, rated as 10 percent disabling prior to December 11, 2008, and 30 percent disabling thereafter.  

12.  Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD).

13.  Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status.

14.  Whether new and material evidence has been submitted to reopen a claim of service connection for carpal tunnel syndrome affecting the right hand and, if so, whether the reopened claim may be granted.  

15.  Entitlement to service connection for coronary artery disease, to include as secondary to service-connected diabetes mellitus.

16.  Entitlement to service connection for a skin rash, to include as due to herbicide exposure.  

17.  Entitlement to service connection for a liver condition, including hemochromatosis compound heterozygote and cirrhosis of the liver, to include as secondary to medications used to treat the service-connected lumbar spine disability.  

18.  Entitlement to service connection for degenerative arthritis.  

19.  Entitlement to service connection for fibromyalgia.  


REPRESENTATION

Veteran represented by:	Robert Walsh, Attorney


WITNESS AT HEARINGS ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from February 1970 to December 1972, June 1975 to September 1974, and from March 1978 to November 1991.  The Veteran's active service included service in Vietnam from August 1971 to June 1972 and in the Persian Gulf War during Operation Desert Storm from August to October 1990.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from several rating decisions issued by various Regional Offices (RO) of the Department of Veterans Affairs (VA).  The Detroit, Michigan RO maintains jurisdiction of this appeal.  

In August 2004, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing conducted at his local RO in Detroit Michigan.  In August 2015, he also testified before a Decision Review Officer at his local RO.  Transcripts for both hearings are associated with the claims file.  

This appeal has been remanded on several previous occasions, including most recently in August 2013, at which time the Board, inter alia, directed the agency of original jurisdiction (AOJ) schedule the Veteran for a Travel Board hearing for the issues of service connection for a liver condition, skin disability, degenerative arthritis, and fibromyalgia, as well as the claims for an increased rating for GERD and special monthly compensation.  However, the Veteran's attorney has indicated that the Veteran no longer desires a hearing on these issues.  Therefore, the hearing request is considered withdrawn and those claims will be addressed below.   

In August 2013, the Board referred the issues of entitlement to service connection for vision changes and a heat injury, which were submitted by the Veteran in July 2000.  While the evidentiary record contains a deferred rating decision dated September 2015 that details the proposed actions to be taken on the referred claims, the record does not contain any documentation showing that those actions were, in fact, taken.  Therefore, those issues are again referred to the AOJ for appropriate action, which should be properly documented in the claims file.  

Similarly, in March 2014, the Veteran submitted a formal claim seeking service connection for osteopenia, histoplasmosis, pain affecting his right shoulder and clavicle, and obstructive sleep apnea.  See also August 2015 statement from Veteran's attorney, submitted via VA form 21-0958.  Those issues have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to service connection for service connection for a liver condition, right carpal tunnel syndrome, degenerative arthritis and fibromyalgia are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  


FINDINGS OF FACT

1.  In March 2017, prior to the promulgation of an appellate decision, service connection was granted for radiculopathy affecting the right and left upper and lower extremities, as secondary to the Veteran's service-connected lumbar and cervical strain disabilities, which represented a full grant of the benefit sought with respect to the Veteran's claim of service connection for a neurologic disability affecting the upper and lower extremities. 

2.  An October 1994 rating decision denied a rating in excess of 10 percent for chronic lumbar strain; this decision was not appealed.

3.  The Veteran filed a claim for an increased rating for a chronic lumbar strain on October 13, 1999 and it was factually ascertainable that an increase in the chronic lumbar strain meeting the criteria for a 40 percent was met at that time, but no earlier.

4.  The evidence of record shows that a competent and credible diagnosis of diabetes mellitus related to service was factually ascertainable no earlier than July 19, 2006.  

5.  The September 2000 correspondence represents a freestanding claim for an earlier effective date for the grant of service connection for myofascial and vascular cephalgia.  

6.   In a final July 1992 rating decision, the AOJ denied entitlement to service connection for carpal tunnel syndrome and foot-leg problems.

7.  No further communication from the Veteran or any representative seeking service connection for peripheral neuropathy of the extremities was received prior to June 19, 2014.

8.  The evidence of record demonstrates that, prior to October 13, 1999, the Veteran's chronic lumbar strain was characterized by low back pain, spasms, and stiffness, which resulted in no more than slight limitation of motion and overall functional impairment.
  
9.  The evidence of record demonstrates that, since October 13, 1999, the Veteran's chronic lumbar strain has been characterized by severe limitation of motion and intervertebral disc syndrome (IVDS); however, there is no lay or medical evidence of fractured vertebra or ankylosis of any portion of the spine; nor is there evidence of pronounced IVDS manifested by sciatic neuropathy, absent ankle jerk, or other neurologic findings, incapacitating episodes for at least six weeks in a 12-month period, or chronic orthopedic and neurologic manifestations that are not otherwise contemplated.  

10.  The evidence of record demonstrates that, throughout the course of the appeal, the Veteran's history of cervical strain was manifested by severe limitation of motion, without evidence of unfavorable ankylosis of the cervical spine or entire spine; nor is there evidence that his IVDS is severe with recurring attacks and intermittent relief or manifested by the requisite amount of incapacitating attacks.  

11.  The evidence of record shows the Veteran's GERD has been manifested by nausea, regurgitation, dysphagia, and pyrosis throughout the appeal period; however, these symptoms have been intermittent and are not shown to be consistently chronic or concurrent with each other; nor have his symptoms been severe enough to be productive of considerable impairment of health.

12.  The Veteran, as a result of his service-connected conditions, is not institutionalized and is not shown to be permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person, nor is he substantially confined to his dwelling and its immediate premises.
13.  The Veteran is currently in receipt of a total disability rating (TDIU) due to the combined effects of his service connected disabilities, but does not have additional service-connected disability or disabilities independently ratable at 60 percent, and is not confined to his home or its immediate premises by reason of his service-connected disabilities. 

14.  In a final July 1992 rating decision, the AOJ denied entitlement to service connection for carpal tunnel syndrome.  

15.  Evidence received since the final July 1992 rating decision is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim for service connection for right hand carpal tunnel syndrome, and raises a reasonable possibility of substantiating the claim.

16.  Resolving all reasonable doubt in favor of the Veteran, his coronary artery disease was caused or aggravated by his service-connected diabetes mellitus, type II.   

17.  Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed macular rash had its onset during service.


CONCLUSIONS OF LAW

1.  There remains for appellate consideration no case or controversy with respect to the claims for service connection for peripheral neuropathy affecting the right and left upper and lower extremities affecting the provision of benefits by VA over which the Board may exercise jurisdiction.  38 U.S.C. §§ 511, 5107, 7104 (West 2012); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2017).

2.  The criteria for an effective date effective date of October 13, 1999, but no earlier, for the assignment of a 40 percent rating for chronic lumbar strain have been met.  38 U.S.C. §§ 5110, 7104 (West 2012); 38 C.F.R. §§ 3.102, 3.400 (2017).
3.  The criteria for an effective date effective date of July 19, 2006, but no earlier, for the grant of service connection for diabetes mellitus have been met.  38 U.S.C. §§ 5110, 7104 (West 2012); 38 C.F.R. §§ 3.102, 3.400 (2017).

4.  The Veteran's freestanding claim for an earlier effective date for the award of service connection for myofascial and vascular cephalgia is not authorized by law.  38 U.S.C. §§ 5101, 5110, 7105 (West 2012); 38 C.F.R. §§ 20.204, 20.302, 20.1103, 20.1104 (2017).

5.  The criteria for an effective date earlier than June 19, 2014 for the grant of service connection for right upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.114, 3.151, 3.400 (2017).

6.  The criteria for an effective date earlier than June 19, 2014 for the grant of service connection for left upper extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.114, 3.151, 3.400 (2017).

7.  The criteria for an effective date earlier than June 19, 2014 for the grant of service connection for right lower extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.114, 3.151, 3.400 (2017).

8.  The criteria for an effective date earlier than June 19, 2014 for the grant of service connection for left lower extremity peripheral neuropathy have not been met.  38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.114, 3.151, 3.400 (2017).

9.  The criteria for a rating in excess of 10 percent for chronic lumbar strain have not been met prior to October 13, 1999.  38 U.S.C. § 1155 (West 2002); 38 C.F.R.              §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295 (2000).  

10.  The criteria for a rating of 40 percent for chronic lumbar strain have been met since October 13, 1999, but no higher.  38 U.S.C. § 1155 (West 2002 & 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295 (2000 & 2016); Diagnostic Code 5293 (effective prior to and after September 2002); Diagnostic Code DC 5243 (effective since September 2003).  

11.  The criteria for a 30 percent rating, but no higher, for a history of a cervical strain with C5-C6 degenerative disc disease have been met.  38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5290 (2000 & 2008).  

12.  The criteria for a rating in excess of 30 percent for a history of cervical strain with C5-C6 degenerative disc disease have not been met.  38 U.S.C. § 1155 (West 2002 & 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5290 (2000 & 2008); Diagnostic Code 5293 (effective prior to and after September 2002); Diagnostic Code 5237 (2017); Diagnostic Code DC 5243 (effective since September 2003).  

13.  The criteria for an initial 10 percent rating, but no higher, for GERD have been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.114, Diagnostic Code (DC) 7346 (2017).

14.  The criteria for an award of special monthly compensation based on the need for regular aid and attendance or housebound status are not met.  38 U.S.C.                §§ 1114(s), 5101, 5107, 5121 (2012); 38 C.F.R. § 3.350 (2017). 

15.  The July 1992 rating decision denying service connection for right hand carpal tunnel syndrome is final.  38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

16.  New and material evidence has been received to reopen the claim of entitlement to service connection for a right hand carpal tunnel syndrome.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).

17.  Coronary artery disease was caused by the service-connected diabetes mellitus, type II.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017)

18.  Resolving all reasonable doubt in the Veteran's favor, a macular rash had its onset during in service.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Dismissed Appeals

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.  38 U.S.C. § 511(a) (West 2012); 38 C.F.R. § 20.101(a) (2017).

One of the principal functions of the Board is to make determinations of appellate jurisdiction.  38 C.F.R. § 19.4.  The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue.  38 C.F.R. § 20.101(d). 

By way of historical background, the RO denied a claim of service connection for foot and leg problems, which were diagnosed as sciatica during service, in a July 1992 rating decision.  While the Veteran did not appeal the July 1992 rating decision, he has consistently argued that he has radiculopathy affecting his upper and lower extremities that are a result of his lumbar and cervical spine disabilities.  See e.g., July 2012 Veteran statement.

In November 2015, the RO readjudicated the Veteran's claim pursuant to the Nehmer line of cases, as the Veteran was presumed exposed to herbicides in Vietnam and peripheral neuropathy had been added as a disability for which presumptive service connection could be awarded based on herbicide exposure.  See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).  However, the RO denied service connection on the basis that the evidence did not show peripheral neuropathy was manifested to a compensable degree within one year of his exposure to herbicides.  See November 2015 rating decision.  The Veteran later perfected an appeal with regards to the denial of service connection for peripheral neuropathy affecting the right and left upper and lower extremities.  

However, in August 2016 and again in March 2017, the RO granted service connection for radiculopathy affecting all extremities, which the Board considers a full grant of the benefit sought with respect to the claimed neurologic disability affecting the Veteran's extremities.  Indeed, the Veteran has not alleged and the evidence does not show that he has a neurologic disability separate and distinct from radiculopathy that was incurred in or as a result of his military service or secondary to any service-connected disability, including diabetes mellitus.  

Under these circumstances, the Board finds that the claims for service connection for peripheral neuropathy affecting the bilateral upper and lower extremities, which were formerly in appellate status, have been granted by the decision of a lower adjudicative body, fully resolving the Veteran's appeal as to those claims.  Therefore, there no longer remains any case or controversy with respect to those issues pending before the Board as contemplated by 38 U.S.C. §§ 7104, 7105 and 38 C.F.R. § 19.4.  In the absence of any justiciable question, the appeal as to each of these claims must be dismissed.

II.  Due Process Considerations

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).



III. Earlier Effective Date

A. Pertinent Statutes and Regulations

The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later.  38 U.S.C. § 5110 (b)(1); 38 C.F.R.§ 3.400(b)(2)(i). 

A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought.  38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999).   Treatment records do not constitute informal claims when service connection has not yet been established for the condition.  38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002).   While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised.   Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

The Board observes that VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs.  See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). 

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  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.  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.  38 C.F.R. § 3.155(a).

Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement.  However, there must first be a prior allowance or disallowance of a claim.  See 38 C.F.R. § 3.157(b). 

B.  Chronic Lumbar Strain

The Veteran contends that an effective date earlier than July 11, 2000 is warranted for his chronic lumbar strain.  Specific argument in support of this appeal has not been provided.

In the present case, the record reflects that the 10 percent rating for a chronic lumbar strain was continued in an October 1994 rating decision.  The Veteran did not appeal this rating decision.

Thereafter, there is no indication in the record of any intent to file a claim for an increased rating for the Veteran's service connected chronic lumbar strain until October 12, 1999.

In this regard, the Board has considered the provisions of former 38 C.F.R.                      § 3.157(b) (effective prior to March 25, 2015), which stated that, once a formal claim for compensation had been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions would be accepted as an informal claim for increased benefits or an informal claim to reopen.  If the report was generated by VA, the date of the examination or treatment was to be accepted as the date of receipt of the informal claim.  If the report was privately generated, the date of receipt of the report was to be accepted as the date of receipt of the informal claim.  Id.  See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) (rescinding the provisions of 38 C.F.R. § 3.157 with respect to claims and appeals filed on or after March 25, 2015). 

In the present case, no pertinent evidence or lay statements were received prior to October 13, 1999, so as to establish a date of claim prior to that date. 

As for VA medical records, the Board notes that a November 1996 VA treatment note reflect, among other things, that the Veteran sought treatment for his lumbar spine.  Such reports were constructively of record as of the dates that they were generated.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).  The Board notes, however, that such report does not contain any indication that the Veteran's chronic lumbar strain was more disabling than rated at that time.  The November 1996 VA treatment note reflects the Veteran's complaints of mid-back pain.  As such, they cannot be construed as informal claims for increased benefits.  See Massie v. Shinseki, 25 Vet. App. 123 (2011) (any interpretation of 38 C.F.R.           § 3.157(b)(1) that does not require a report of examination or treatment to indicate a service-connected disability has worsened would produce an absurd result). Therefore, the Board finds that VA first received the Veteran's claim for an increased rating for his service connected chronic lumbar strain on October 13, 1999.

Moreover, the Board finds it factually ascertainable that the Veteran satisfied the criteria for assignment of a 40 percent rating for his service connected chronic lumbar strain as of the October 13, 1999 informal claim.  Specifically, the record documents that the Veteran had chronic back pain and soreness and that the back pain radiated into his extremities.

Therefore, a 40 percent rating for the Veteran's service connected a chronic lumbar strain is warranted from October 13, 1999, the date of the Veteran's informal claim for increase demonstrating a factually ascertainable increase in his chronic lumbar strain.  Massie, supra; 38 C.F.R. § 3.157(b)(1). 

Having determined that October 13, 1999, is the date of receipt of the claim for purposes of assigning an effective date, the Board is obliged to review the evidence of record to determine whether an ascertainable increase in disability occurred during the preceding year.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  In this case, there is no evidence between October 13, 1998 and October 13, 1999 showing an increase in the disability.  As such, there is no evidentiary basis for assigning an effective date for the current 40 percent rating at any time during the period from October 13, 1998 to October 13, 1999.

For all the foregoing reasons, the Board concludes that the Veteran filed an informal claim for increase for his chronic lumbar strain on October 13, 1999.  However, there is no legal basis for assignment of an effective date prior to October 13, 1999 for the award of a 40 percent rating for chronic lumbar strain.  To that extent, an effective date of October 13, 1999 for the award of a 40 percent rating for chronic lumbar strain is granted.

C.  Diabetes Mellitus

The Veteran is seeking an effective date prior to October 14, 2008, for the grant of service connection for diabetes mellitus, which was awarded in the April 2010 rating decision. 

Review of the record reveals that the Veteran filed a claim seeking service connection for diabetes mellitus as secondary to herbicide exposure that was received by VA on May 1, 2002.  In support of his claim, the Veteran identified various VA treatment records that contained lab reports which he believed showed a diagnosis of diabetes mellitus.  See November 2002 Veteran statement.  During a November 2002 VA examination, the Veteran reported that he was diagnosed with borderline diabetes six to eight months ago and that he was advised to follow a low-sugar and fat diet.  After examining the Veteran and conducting various laboratory tests, the VA examiner stated there was no evidence of diabetes mellitus II at that examination.  As a result, the RO denied the Veteran's claim of service connection for diabetes mellitus on the basis that there was no evidence of the claimed disability.  See September 2003 rating decision.  

The Veteran perfected an appeal as to that issue and, in August 2004, submitted a statement dated October 7, 2003 from a private physician, Dr.B.P., which states that the Veteran was seen in the office that day and satisfied the criteria for diabetes mellitus type 2.  However, additional findings and treatment records from Dr. Phillips in support of the reported diabetes diagnosis were not provided at that time, although the Veteran was requested to provide VA authorization to obtain records from Dr. Phillips on his behalf.  See September 2007 Board remand; October 2007 Duty to Assist letter.  

Nevertheless, on October 4, 2008, the Veteran was afforded another VA examination wherein the examiner noted the Veteran had diabetes mellitus.  In reviewing the record, the VA examiner noted that the Veteran had high glucose tests in April 2002 but that a random blood glucose conducted that same day was normal.  In this regard, the examiner noted that the Veteran may have been borderline at that time, but was not classified as a diabetic per National Standards.  Given the findings of the October 2008 VA examination, the RO issued a rating decision in April 2010 that granted service connection for diabetes mellitus as secondary to herbicide exposure, effective October 14, 2008, which it noted was the date he was shown to have the disability.  

As noted, the Veteran is seeking entitlement to an earlier effective date for the grant of service connection for diabetes mellitus.  Specifically, he asserts that the effective date should be the date he filed his claim of service connection for diabetes mellitus in May 2002 or, in the alternative, October 7, 2003, the date he was first diagnosed with diabetes mellitus.  See June 2011 Notice of Disagreement; VA Form 9 submitted in March and October 2016.  

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later.  38 U.S.C.               § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). 

While the Veteran did not initially respond to VA's request for treatment records from Dr. B.P. in support of the diabetes diagnosis, review of the record reveals that private treatment records from that physician were submitted in February 2008 and contain a diagnosis of diabetes mellitus as early as July 19, 2006.  Notably, an October 7, 2003 treatment record reflects that the Veteran sought to establish care as a new patient and that diabetes mellitus was not noted in his past medical history or final assessment.  This treatment record appears to contradict Dr. B.P.'s October 2003 statement that the Veteran met the criteria for diabetes mellitus at that time, as there is no clinical evidence or notation supporting the diagnosis.  

Nevertheless, the next treatment record is dated July 19, 2006 and reflects that the Veteran presented for a scheduled follow-up visit for his diabetes mellitus, type II.  The July 2006 treatment record does not reflect that the Veteran was prescribed medication for diabetes at that time but, instead, that his diabetes was entirely controlled by diet, although the Veteran was not following his recommended dietary regimen.  Dr. B. P.'s noted the Veteran was checking his sugars once a day and that his fasting sugars were running 100 to 120.  The final assessment included a diagnosis of "diabetes mellitus, without mention of complication, type II or specified type, not stated as uncontrolled," and the diagnosis was continued thereafter.  See private medical records from Dr. B. P. dated October 2003 to December 2007.  

Given this evidence, it appears that it was factually ascertainable that the Veteran was diagnosed with diabetes mellitus in July 2006.  The private treatment records from Dr. B. P. show that the Veteran had been diagnosed with and was receiving treatment diabetes mellitus from July 2006 and thereafter.  The other evidence of record, including the October 2008 VA examination report, does not question the validity of the diagnosis rendered as early as July 2006 and, thus, the Board finds the private treatment records from Dr. B. P. dated from July 2006 and thereafter are competent and credible medical evidence.  Therefore, after resolving all doubt in favor of the Veteran, the Board finds that an effective date of July 19, 2006, but no earlier, for the grant of service connection for diabetes mellitus is warranted.  

Indeed, while the Veteran filed his claim seeking service connection for diabetes mellitus in May 2002, the evidence of record shows that a competent and credible diagnosis of diabetes mellitus was factually ascertainable no earlier than July 19, 2006.  See e.g., McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in the context of a service connection claim, the Board must determine when the service-connected disability manifested itself under all of the facts found).  In making this determination, all reasonable doubt has been resolved in favor of the Veteran.  

D. Myofascial and Vascular Cephalgia

By way of background, the Board notes that, in July 1992, the AOJ awarded service connection for headaches and assigned an initial 10 percent rating, effective December 1, 1991.  The Veteran was notified of the AOJ's determination but he did not submit a statement reflecting disagreement with the effective date assigned for the award of service connection for headaches within one year of the July 1992 rating decision.  

In this context, the Board has considered the provisions of 38 C.F.R. § 3.156(b) and (c).  However, no evidence relevant to the proper effective date for the grant of service connection for headaches was received prior to the expiration of the one year appeal period.  Additionally, while additional service treatment and personnel records have been added to the evidentiary record since the July 1992 rating decision, these records do not contain any information or evidence relevant to the proper effective date assignable for the grant of service connection for headaches.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).  Therefore, no pertinent exception to finality applies in this case and, as a result, the July 1992 rating decision became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.

Thereafter, in September 2002, the Veteran submitted a statement requesting entitlement to an earlier effective date for service-connected headaches/migraines (which had been re-characterized as myofascial and vascular cephalgia in a March 2002 rating decision).  In February 2008, the AOJ denied entitlement to an earlier effective date for service connection for myofascial and vascular cephalgia, after which the Veteran perfected an appeal by submitting a timely NOD and substantive appeal.  See February 2009 NOD, February 2010 statement of the case (SOC), April 2010 VA Form 9.  This issue was certified to the Board in March 2012.  See March 2012 VA Form 8.

The Veteran's current claim represents a freestanding earlier effective date claim that is challenging a prior final decision.  The United States Court of Appeals for Veterans Claims (Court) has held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed RO decision.  See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  The Court reasoned that allowing such claims would vitiate the rule of finality and held that, when such a freestanding claim is raised, such an appeal should be dismissed.  Id. at 299-300.  
In this case, the Veteran's current claim for entitlement to an earlier effective date for the grant of service connection for myofascial and vascular cephalgia (headaches) was filed more than nine years after the July 1992 rating decision became final, and the Veteran has not alleged there was clear and unmistakable error in the July 1992 rating decision.  Accordingly, the Veteran's current claim for an earlier effective date for the award of service connection for myofascial and vascular cephalgia is a freestanding earlier effective date claim that must be dismissed.  See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under law).

E.  Peripheral Neuropathy of the Extremities

The Veteran's attorney generally contends that an earlier effective date is warranted for the award of service connection for peripheral neuropathy of the extremities.  Specific argument in support of these appeals was not provided.

A review of the record reveals that the Veteran had filed a claim for numbness and weakness in the legs and arms on December 9, 1991.  By rating action dated in July 1992, the RO denied service connection for foot-leg problems and carpal tunnel syndrome.  He did not appeal the decision and no new and material evidence was received within the appeal period.  Thus the decision is final.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 

An August 2016 rating decision awarded service connection for right and left upper extremity radiculopathy as secondary to service connected history of cervical strain as well as right and left lower extremity radiculopathy as secondary to service connected chronic lumbar strain.  The award of service connection for each extremity was assigned to be effective June 19, 2014, the date of a VA examination report.  The basis for the grant was that the peripheral neuropathy of the upper extremities was secondary to the service connected history of a cervical strain and the peripheral neuropathy of the lower extremities was secondary to service connected chronic lumbar strain.  The record contains no earlier statements that could be construed as an informal claim. 

After careful consideration of the evidence, to include written communications from the Veteran and the medical record, the Board finds that there is no basis for an effective date prior to June 19, 20014 for peripheral neuropathy of the bilateral upper and lower extremities.  Again, a claim of service connection for-leg problems and carpal tunnel syndrome was denied in a July 1992 rating decision.
There is no indication that the Veteran appealed the previous denial or that new and material evidence was received within the appeals period.  Therefore, the rating decision denying the claim is final.  Moreover, neither the Veteran nor his representative submitted any written correspondence which could be construed as a formal or informal claim to reopen the previously denied claim of entitlement to service connection for peripheral neuropathy prior to June 14, 2010.

The Board notes that Nehmer is not applicable to this case because the peripheral neuropathies at issue are associated with a cervical strain and a chronic lumbar strain, and are not of the type contemplated by 38 C.F.R. § 3.309(e). 
There is simply no authority in law which would permit a grant of an earlier effective date.  Therefore, the Board finds that an effective date prior to June 19, 2014, for the award of service connection for peripheral neuropathy of the upper and lower bilateral extremities, is not warranted. 

IV.  Increased Rating Claims

A. Lumbar Spine

In July 2000, the Veteran filed a claim seeking an increased rating for his service-connected chronic lumbar strain disability which, at that time, was rated 10 percent disabling under DC 5295.  In the March 2002 rating decision on appeal, the AOJ increased the Veteran's disability rating to 40 percent, effective July 11, 2000, the date of receipt of his increased rating claim.  The Veteran appealed the RO's determination as to the rating assigned, as well as the effective date of the increased rating, which is the basis of the current appeal.  The Board's decision awarded an earlier effective date of October 13, 1999 for the award of a 40 percent rating for the chronic lumbar strain.  

The Board notes that the rating criteria for evaluating the spine remained unchanged from 1972 to 2002.  However, in 2003, during the pendency of the Veteran's claim and appeal, amendments were made to the rating criteria evaluating disabilities of the spine, including lumbosacral strain.  See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2004)).  This amendment and subsequent correction were made effective from September 26, 2003.  The rating criteria for evaluating intervertebral disc syndrome were also revised previously, effective from September 23, 2002.  See 67 Fed. Reg. 54,345-49 (Aug. 22, 2002); (codified at 38 C.F.R. § 4.71a, DC 5293 (2003)).

Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change.  See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. 

Accordingly, the Board will review the disability rating under the former and revised criteria.  The RO evaluated the Veteran's claim under the former regulations in making its rating decision dated March 2002 (issued in April 2002), while the RO evaluated the claim using both the former and revised criteria in the April 2010 SSOC.  It is clear, therefore, that the RO considered the former and revised rating criteria, and that the Veteran was made aware of the changes.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

Prior to October 13, 1999, the Veteran's lumbar spine disability was rated 10 percent disabling under DC 5295, which provided the criteria for lumbosacral strain.  Prior to September 26, 2003, a noncompensable rating was warranted for lumbosacral strain with only slight subjective symptoms; a 10 percent rating was warranted for lumbosacral strain with characteristic pain on motion; a 20 percent rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position; and a 40 percent rating was warranted for severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.

Since October 13, 1999, the Veteran's lumbar spine disability has been rated 40 percent disabling under DC 5295-5292.  The hyphenated diagnostic code in this case reveals that DC 5295 was assigned for lumbosacral strain, while DC 5292 was assigned for limitation of motion of the lumbar spine as a residual condition.  See 38 C.F.R. § 4.27.

Prior to September 2003, DC 5292 limitation of motion of the lumbar spine warranted a 10 percent evaluation if slight, a 20 percent evaluation if moderate, and a 40 percent evaluation if severe. 

The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just."  See 38 C.F.R. § 4.6.  It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

Under the amendment to the Rating Schedule that became effective in September 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine.  See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003); 69 Fed. Reg. 32,449, 32,450 (June 10, 2004) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5343 (2016).  The criteria for the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) are as follows, in part: 

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

Additionally, as indicated previously, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes.  Id. at Note (1).  Note (2) also provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral flexion and lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation, which, for the thoracolumbar spine is 240 degrees.

With respect to the rating assignable prior to October 13, 1999, VA and private treatment records dated from November 1996 to January 2000 reflect that the Veteran's lumbar spine disability was manifested by low back pain, spasms, and stiffness, which increased with activity.  With respect to limitation of motion, the pertinent evidence shows that, in October 1999, the Veteran could demonstrate forward flexion with his hands outstretched to his thighs.  There was no indication or allegation of painful motion.  The records do not, otherwise, document the Veteran's lumbar spine range of motion prior to October 1999 and the record does not contain any VA examinations or other comprehensive musculoskeletal examinations, conducted prior to October 1999.  

Based on the foregoing, the Board finds that a rating higher than 10 percent is not warranted for the Veteran's lumbar spine disability.  As noted, the evidence shows the Veteran's disability was variously manifested by pain, stiffness, and muscle spasms; however, the evidence does not reflect that the disability resulted in any more than slight functional impairment.  Indeed, the Veteran was able to demonstrate forward flexion to his thighs, without evidence of painful motion or any further or more severe limitation of motion or other functional impairment, including severely limited forward bending, listing of the spine, loss of lateral motion with osteoarthritic changes, or abnormal mobility on forced motion.  Therefore, the Board finds that a rating in excess of 10 percent is not warranted under either DC 5295 or DC 5292 (in effect prior to September 2003), as the symptoms of the Veteran's lumbosacral strain, including limitation of motion, are no more than slight.  

With respect to the Veteran's assertion that a 40 percent rating is warranted prior to October 1999, the evidence does not reflect symptoms that warrant or more nearly approximate the level of impairment needed to warrant a 40 percent rating under DCs 5295 or 5292.  As noted above, there is no lay or medical evidence of severe lumbosacral strain manifested by listing of the spine, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; nor is there evidence of severe limitation of motion prior to October 1999.  Therefore, a 40 percent rating is not warranted prior to October 1999.  

With respect to the rating assignable since October 13, 1999, the Board notes that the Veteran is assigned the highest possible disability rating under DCs 5292 and 5295 in effect prior to September 2003.  Therefore, the Board has evaluated the Veteran's chronic lumbar strain under all other potentially applicable diagnostic codes, effective prior to September 2003, to determine whether he can be rated higher than 40 percent.  In this context, the Board notes the only diagnostic codes that would assist the Veteran in obtaining a higher evaluation are DC 5285, for residuals of fractured vertebra; DC 5286, for complete bony fixation (ankylosis) of the spine; DC 5289, for ankylosis of the lumbar spine; and DC 5293, for intervertebral disc syndrome.  The Veteran has never been shown to have fractured vertebra or ankylosis of any portion of the spine.  Therefore, DCs 5285, 5286, and 5289 (2000) do not assist the Veteran in obtaining a higher evaluation and are not for application in this case.  The Board will discuss the application of DC 5293 (intervertebral disc syndrome) below.  

Under the current schedular criteria, the Board finds that an evaluation in excess of 40 percent is not warranted, as the evidence of record shows the Veteran has not demonstrated the symptoms or criteria necessary to warrant a higher evaluation under the current General Rating Schedule for Diseases and Injuries of the Spine.  

Specifically, the clinical evidence does not establish, and the Veteran has not alleged, that he has either unfavorable ankylosis of the thoracolumbar spine or the entire spine, which is when the spine is fixed in flexion or extension and is accompanied by other symptoms. In this regard, the Board notes that during the various VA examinations conducted throughout the appeal period, the Veteran demonstrated movement in all planes of excursion tested and, while his movement has been severely limited by pain and after repetitive movement, the evidence of movement in the spine clearly indicates he does not have ankylosis.  See VA examination reports dated August 2000, December 2008, June 2014, June 2015, and October 2015.  Therefore, a rating in excess of 40 percent cannot be awarded for the Veteran's chronic lumbar strain under the General Rating Formula.  

The December 2008 VA examiner noted the Veteran had IVDS in the lumbar spine which he stated was not manifested by a neurologic deficit and was unrelated to the service-connected lumbar spine disability.  However, subsequent VA examiners noted the Veteran's IVDS was manifested by incapacitating episodes of at least one week but less than two weeks during the previous year, without any evidence that such was noted related to his service-connected lumbar spine disability.  See VA examination reports dated June and October 2015.  Therefore, the Board will resolve such doubt in favor of the Veteran and consider whether the criteria for IVDS would assist him in obtaining a rating higher than 40 percent since October 1999.  

The diagnostic criteria for rating IVDS were revised two times during the appeal period, first effective September 23, 2002 and again in September 2003.  Prior to September 2002, DC 5293 provided that IVDS warranted a 10 percent rating when mild, 20 percent when moderate, with recurring attacks, and 40 percent when severe, with recurring attacks and intermittent relief.  A 60 percent rating required pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2000).

Effective September 23, 2002, DC 5293 was amended to provide for evaluation of IVDS either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  67 Fed. Reg. 54345-01 (August 22, 2002).  If rated based on incapacitating episodes, a 40 percent rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months, while a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5293 (2002).  Note 1 provides that for the purposes of evaluations under DC 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  

Chronic orthopedic and neurological manifestations are defined as orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes.  38 C.F.R. § 4.71a, DC 5293 (2002).

The regulation for rating intervertebral disc syndrome based on incapacitating episodes was slightly revised again in September 2003, during which DC 5293 was renumbered and amended as the current DC 5243.  The actual criteria for a 60 percent rating remained the same with minor re-phrasing in the explanatory terms of the regulation.  

After applying the foregoing schedular criteria to the evidence of record, the Board finds that a rating higher than 40 percent is not warranted since October 1999 based upon IVDS, regardless of which version of the diagnostic criteria is used.  In evaluating the Veteran's IVDS under DC 5293 in effect prior to September 2002, the Board notes the Veteran's disability has been manifested by pain and muscle spasms throughout the appeal, the preponderance of the evidence does not reflect that such was also manifested by sciatic neuropathy, absent ankle jerk, or other neurologic findings sufficient to be considered pronounced IVDS, as contemplated by the 60 percent rating.  

Likewise, the criteria used to evaluate IVDS in effect from September 2002 under DC 5293 and from September 2003 under DC 5243 does not assist the Veteran in obtaining a higher rating based upon the total duration of incapacitating episodes.  Indeed, while the Veteran is shown to have incapacitating episodes, VA examiners have noted that they lasted no more than one week during the relevant time period, without any lay or medical evidence of such lasting for at least six weeks in a 12-month period, which is needed to warrant a higher, 60 percent rating.  Additionally, the Board finds probative that the VA and private treatment records do not contain any indication that his treating physicians have prescribed bed rest for his lumbar spine disability.  

The Board has considered whether combining separate manifestations of the Veteran's chronic orthopedic and neurologic manifestations under 38 C.F.R. § 4.25, as directed by the IVDS criteria effective from September 2002.  However, the Board finds that the evidence does not specifically attribute the orthopedic manifestations of the Veteran's lumbar spine disability, specifically painful, limited motion, to IVDS, as opposed to lumbosacral strain.  Additionally, the Board finds that the orthopedic manifestations of his lumbar spine disability are adequately compensated by the current 40 percent rating.  

Moreover, the Board notes that separate ratings have been assigned for radiculopathy affecting the right and left lower extremities, as secondary to the service-connected lumbar spine disability.  See August 2016 and March 2017 rating decisions.  The Veteran has not appealed the ratings assigned to those disabilities; therefore, the propriety of those ratings will not be addressed herein.  

There is no lay or medical evidence showing the Veteran's chronic lumbar strain, including IVDS, has been manifested by any other separately ratable neurologic disability, to include bowel or bladder dysfunction.  Therefore, the Board finds the preponderance of the evidence does not reflect that the Veteran experiences any additional objective neurologic abnormalities as a result of his service-connected lumbar spine disability which would warrant a separate compensable rating at any point during the appeal period - including a rating which, when combined with the orthopedic manifestations of IVDS, would warrant a rating higher than 40 percent since October 1999.  

In summary, the Board finds the preponderance of the evidence is against assigning a disability rating in excess of 10 percent for service-connected chronic lumbar strain prior to October 13, 1999, or a rating in excess of 40 percent thereafter.  Accordingly, the benefit-of-the-doubt doctrine is not applicable in this case and the Veteran's claims are denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

B.  Cervical Spine

In July 2000, the Veteran filed a claim seeking an increased rating for several service-connected disabilities, including his cervical spine disability, which, at that time, was rated 10 percent disabling under DC 5290.  In the March 2002 rating decision on appeal, the RO continued the10 percent rating, after which the Veteran appealed the RO's determination as to his rating.  In April 2010, the RO increased the Veteran's rating to 30 percent, effective December 11, 2008, pursuant to the revised criteria of DC 5237, for a cervical strain.  

Therefore, the Board will consider whether the Veteran's history of cervical strain warrants a rating higher than 10 percent prior to December 11, 2008, and a rating higher than 30 percent thereafter.  

Prior to September 2003, DC 5290 provided ratings based on limitation of motion of the cervical spine.  A 10 percent rating was assigned for slight limitation of motion, while a 20 percent rating was assigned for moderate limitation of motion, and a 30 percent rating was assigned for severe limitation of motion of the cervical spine.  38 C.F.R. § 4.71a, DC 5290 (2003).

The criteria for the General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss.  A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine, while a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  

For VA compensation purposes, normal forward flexion of the cervical spine is from 0 to 45 degrees, extension from 0 to 45 degrees, left and right lateral flexion from 0 to 45 degrees, and left and right lateral rotation from 0 to 80 degrees.  C.F.R. § 4.71a.

VA and private treatment records dated since July 2000 reflect complaints of low neck pain and stiffness, with additional notations of painful movement.  The records do not, however, indicate the specific ranges of motion in the cervical spine during the appeal period.  However, the Veteran's cervical spine range of motion was noted during the various VA examinations of record.  

During the August 2000 VA examination, the Veteran had good muscle tone in the cervical spine without spasm.  He demonstrated resistance to movement, as evidenced by his limitation of motion and complaints of pain in all planes of excursion.  The Veteran was able to demonstrate flexion to 25 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees.  

During the December 2008 VA examination, the Veteran continued to demonstrate the Veteran had good muscle tone in the cervical spine without spasm.  His active and passive range of motion was as follows: extension to five degrees, flexion to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees, all with complaints of severe pain.  

During the June 2014 VA examination, the Veteran reported having difficulty twisting neck and his entire body.  He reported having flare-ups of pain with changes in the weather and increased activity.  He was able to demonstrate forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 40 degrees with pain at 35 degrees, right lateral flexion to 50 degrees with pain at 35 degrees, and left lateral flexion to 70 degrees with pain at 60 degrees.  There was no additional limitation of motion after repetitive testing but the examiner noted that pain limited range of motion during flare-ups and repetitive use.  The examiner noted there was evidence of IVDS without evidence of incapacitating episodes.  

During October 2015 VA examination, the Veteran was able to demonstrate forward flexion to 30 degrees, extension to five degrees, right lateral flexion to five degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees, all with complaints of pain.  There was no additional limitation of motion after repetitive use and, while there was evidence of guarding and muscle spasm, the examiner noted that such did not result in abnormal gait or spinal contour.  The examiner noted, however, that the Veteran's IVDS was manifested by incapacitating episodes of at least one week but less than two weeks during the previous year.  

With respect to the rating assignable prior to December 11, 2008, the evidence dated from July 2000 to December 2008 shows the Veteran has experienced decreased range of motion in all planes of excursion tested.  Specifically, the August 2000 VA examination report reflects that the Veteran's range of motion was limited to approximately half of the normal range in forward flexion (25 degrees out of 45 degrees) and extension (20 degrees out of 45 degrees).  Similarly, lateral flexion was severely limited (10 degrees out of 45 degrees) as was left and right lateral rotation (30 degrees out of 80 degrees).  In evaluating this evidence under the criteria of DC 5290, effective prior to September 2003, the Board finds that the Veteran's disability more nearly approximates severe limitation of motion, which warrants a 30 percent rating since July 11, 2000.  

Therefore, the Board will turn to the question of whether a rating higher than 30 percent is warranted any time during the course of the appeal.  

In evaluating the Veteran's cervical strain under DC 5290 effective prior to September 2003, the evidence shows he continued to demonstrate limited range of motion in all planes of excursion.  While his range of motion has varied, it has been limited to less than half of the normal range in forward flexion, extension, lateral flexion, and lateral rotation.  Indeed, forward flexion has been limited to 10 degrees (out of 45 degrees), extension limited to five degrees (out of 45 degrees), lateral flexion limited to between five and 10 degrees (out of 45 degrees), and lateral rotation limited to between 15 to 20 degrees (out of 80 degrees), which the Board finds is consistent with severe limitation of motion as contemplated by the maximum 30 percent rating under DC 5290.  See VA examination reports dated December 2008, June 2014, and October 2015.  

The Board has evaluated the Veteran's history of cervical strain under all other potentially applicable diagnostic codes effective prior to September 2003, to determine whether he can be rated higher than 30 percent since December 2008.  The Veteran's history of cervical strain is not shown to be manifested by fractured vertebra or ankylosis of any portion of the spine.  Therefore, DCs 5285, 5286, and 5289 (2002) do not assist the Veteran in obtaining a higher rating and are not for application in this case.  The Board will discuss the application of DC 5293 for intervertebral disc syndrome below.  

In evaluating the Veteran's history of cervical strain under the current schedular criteria effective since September 2003, the Board finds that a rating higher than 30 percent is not warranted, as there no evidence of unfavorable ankylosis of the cervical spine or the entire spine.  

The evidence dated prior to December 2008 does not reflect that the Veteran's cervical spine disability was manifested by IVDS; however, the June 2014 VA examiner noted there was evidence of IVDS without evidence of incapacitating episodes, while the October 2015 VA examiner noted that his IVDS was manifested by incapacitating episodes of at least one week but less than two weeks during the previous year.  

Despite the foregoing, the Board finds a rating higher than 30 percent is not warranted based upon IVDS.  Indeed, the evidence does not reflect that the Veteran's cervical spine IVDS has been severe with recurring attacks and intermittent relief or manifested by the requisite amount of incapacitating attacks.  Instead, the Veteran's IVDS has been manifested by no more than one week of symptoms in a 12-month period, as noted by the October 2015 VA examiner.  Therefore, a 40 percent, or even higher, rating is not warranted under DC 5293 in effect prior to or after September 2002 based upon incapacitating episodes.  

The Board has also considered combining separate manifestations of the Veteran's chronic orthopedic and neurologic manifestations under 38 C.F.R. § 4.25, as directed by the IVDS criteria effective from September 2002.  However, the orthopedic manifestations of the cervical spine disability are adequately compensated by the current 30 percent rating.  Moreover, the Board notes that separate ratings have been assigned for radiculopathy affecting the right and left upper extremities, as secondary to the service-connected cervical spine disability.  See August 2016 and March 2017 rating decisions.  The Veteran has not appealed the ratings assigned to those disabilities; therefore, the propriety of those ratings will not be addressed herein.  

There is no lay or medical evidence showing the Veteran's history of cervical strain including IVDS, has been manifested by any other separately ratable neurologic disability.  Therefore, the Board finds the preponderance of the evidence does not reflect that the Veteran experiences any additional objective neurologic abnormalities as a result of his service-connected cervical spine disability which would warrant a separate compensable rating at any point during the appeal period - including a rating which, when combined with the orthopedic manifestations of IVDS, would warrant a rating higher than 30 percent at any time during the course of the appeal.  

In summary, the Board finds the preponderance of the evidence supports the grant of a 30 percent rating, but no higher, for a history of cervical strain with C5-C6 degenerative disc disease from July 11, 2000 to December 11, 2008.  However, the preponderance of the evidence is against the grant of a rating in excess of 30 percent at any time during the course of the appeal.  In making these determinations, all reasonable doubt has been resolved in favor of the Veteran.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.


C.  GERD

In the February 2008 rating decision on appeal, the AOJ granted service connection for GERD and assigned an initial noncompensable (zero percent) rating pursuant to 38 C.F.R. § 4.114, DC 7399-7346, effective September 9, 2002. The Veteran perfected an appeal as to the propriety of the initial rating assigned to his disability, which is the basis of this appeal.  

The hyphenated diagnostic code assigned in this case indicates that a miscellaneous digestive disease is the service-connected disorder evaluated under DC 8199, while the residual condition (to which the Veteran's disability is rated by analogy) is hiatal hernia, which is evaluated under DC 7346.  

Under that code, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  A 30 percent rating is assigned if there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  With two or more of the symptoms for the 30 percent rating of less severity, a 10 percent rating in warranted.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R.
 § 4.7.  All benefit of the doubt will be resolved in the appellant's favor.  38 C.F.R. 
 § 4.3.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

In support of his claim, the Veteran has asserted that his GERD requires daily use of medication and limits his daily activity and diet.  See February 2009 Notice of Disagreement (NOD).  

VA treatment records show that the Veteran has reported that his GERD is occasionally manifested by nausea and vomiting that usually occurs in the morning.  See e.g., VA and private treatment records dated July 2001, March 2008, and October 2010.  In March 2008, he reported having mid-sternal chest pain but denied having constipation or diarrhea.  He has also experienced having difficulty swallowing.  See October 2010 VA treatment records.  

During the February 2008 VA examination, the Veteran reported that he did not get any relief from the use of proton pump inhibitors, although he stated that taking Lyrica (which he was given for neuropathy) helped relieve his vomiting.  Nevertheless, he still reported having occasional vomiting about two times a month, nausea less than once a week and heartburn/ pyrosis on a weekly basis.  The Veteran denied experiencing dysphagia, esophageal disturbance or dilation, regurgitation, or hematemesis/melena.  The examiner noted the Veteran had fair overall health, without any weight change or significant signs of malnutrition.  

After careful review of the evidence and after resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran's GERD symptoms more nearly approximate the level of disability contemplated by the 10 percent rating under DC 7346.  Indeed, the clinical evidence of records show that the Veteran's GERD is manifested by nausea, vomiting, difficulty swallowing (dysphagia), and chest pain or heartburn (pyrosis), all of which occur intermittently.  His symptoms are not, however, shown to be consistently chronic or concurrent with each other, as contemplated by the 30 percent rating.  The clinical evidence of record does not establish, and the Veteran has not alleged, material weight loss, hematemesis, melena and/or anemia.  Additionally, his symptoms have not been severe enough to be productive of considerable or severe impairment of health, which is also required for a higher rating.

Overall, the lay and medical evidence shows the Veteran's GERD is variously manifested by nausea, vomiting/regurgitation, pyrosis, dysphagia, and pain his in chest.  The evidence shows the Veteran's cluster of symptoms vary in frequency and severity and have been managed by various medications throughout the pendency of this claim and appeal.  As such, the Board finds that the preponderance of the evidence supports the grant of an initial 10 percent rating, but no higher, for the Veteran's GERD.  

The Board has considered whether the Veteran is entitled to a separate or higher rating under other potentially applicable diagnostic codes; however, 38 C.F.R.        § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14.  Additionally, 38 C.F.R. § 4.114 indicates that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other.  Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation.  Therefore, as the Veteran's GERD is evaluated under DC 7346, he is not entitled to a higher or separate rating under any other potentially applicable diagnostic code.

Finally, the Board finds there is no basis for staged rating of the GERD disability, pursuant to Hart, as the lay and medical evidence shows the Veteran's service-connected GERD has been consistently manifested by symptoms that more nearly approximate a 10 percent rating throughout the appeal period.  Indeed, as noted above, while the Veteran has manifested the symptoms contemplated by the 30 percent rating at different points during the appeal period, the evidence does not show concurrent symptoms which resulted in a considerable impairment of health at any point during the appeal to warrant a rating higher than 10 percent. 

In making this determination, the Board also has considered the Veteran's contentions with respect to the nature of his service-connected GERD disability and notes that he is competent to describe certain symptoms associated with his disability.  However, in evaluating this claim, the Board finds that the most competent, credible, and probative evidence regarding the severity of the GERD disability is the medical evidence of record which considers the Veteran's reported symptoms, including the frequency and severity thereof, but also provides clinical evaluation of the disability, as well as evaluation of functional impairment caused thereby.  Given the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for service-connected GERD.  As such, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

V.  SMC

The Veteran contends that the severity of his service-connected disabilities warrant the award of special monthly compensation based on the need for aid and attendance.  In a February 2013 claim, the Veteran's attorney stated that the Veteran was severely impaired and in need of aid and attendance on a daily basis.  The Veteran's attorney wrote in a March 2016 substantive appeal that the Veteran was confined to a wheelchair due to his service connected spinal disabilities and that he requires 24/7 assistance from his spouse.

SMC is payable to a Veteran for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person.  38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Determination of this need is subject to the criteria of 3.352.  Under 38 C.F.R.          § 3.352, the factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress, or to keep herself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a).

It is not required that all of the disabling conditions enumerated in 38 C.F.R.           § 3.352(a) be found to exist before a favorable decision is permissible.  Particular personal functions which the Veteran is unable to perform should be considered in connection with her condition as a whole.  It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present."  Turco, 9 Vet. App. at 224.  "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed.  The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient.  38 C.F.R. § 3.352 (a).

To establish entitlement to special monthly compensation based on housebound status under 38 U.S.C.A. § 1114 (s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises.  38 C.F.R. § 3.350(i).

The evidence does not show that the Veteran is permanently bedridden, blind in both eyes, or so helpless as to be in need of regular aid and attendance due to his service-connected PTSD, chronic lumbar strain, right upper extremity radiculopathy, myofascial and vascular cephalgia, a history of cervical strain, left upper extremity radiculopathy, diabetes mellitus, right lower extremity radiculopathy in the femoral and sciatic nerves, left lower extremity radiculopathy in the femoral and sciatic nerves, tinnitus, GERD and left ear hearing loss.  The February 2013 VA examination for housebound status or permanent need for regular aid and attendance, which was completed by the Veteran's private physician, indicates that the Veteran was not legally blind, did not require nursing home care, that he was not confined to his bed and that he walked with a cane.  The private physician found that the Veteran was able to feed himself, that he was able to prepare simple microwave meals for himself, that he required medication assistance in that his wife sets up his medication and reminds him to take the medication and that he was did not need assistance in bathing and tending to other hygiene needs but does need help shaving and reminders to wash his head in the shower.  The physician also found that the Veteran was able to do most of his personal activities of daily living but he was unable to shovel, do the laundry, dishwashing, vacuuming as he gets shortness of breath with minimal exertion and tires easily.  Although the Veteran's attorney has asserted that the Veteran was confined to a wheelchair, the February 2013 examination report and October 2015 VA back DBQ report indicates the Veteran ambulated using a cane.

Where a Veteran does not meet the qualifications for aid and attendance, housebound benefits may be applicable.   However, in this case, the Veteran was awarded a TDIU in March 2002 based upon the combined effects of his service-connected disabilities. He does not have any additional service-connected disability or disabilities independently ratable at 60 percent that are separate and distinct from his TDIU. The clinical evidence of record does not establish, and the Veteran has not alleged, that he was housebound as a result of his service-connected conditions. This requirement is met when a Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities will continue throughout his or her lifetime; circumstances not shown in this case.  38 C.F.R. § 3.350 (i).  In this case, the Veteran was not housebound as the February 2013 VA examiner found that the Veteran was able to leave his home with the assistance of others once or twice a day to go to medical appointments, visit with his family and friends and hang out with other veterans.

The Board recognizes the statements of the Veteran and his attorney to the effect that the Veteran's disabilities render him housebound and/or require the aid and attendance of another.  With respect to these contentions, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as ongoing physical problems and symptoms, and his attorney had attest to factual matters he has observed.  These assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, neither the Veteran nor his attorney have asserted that the Veteran's service-connected disabilities have rendered him housebound or in need of aid and attendance of another.

Accordingly, the preponderance of the evidence is against the claim; there is no doubt to be resolved; and the claim for aid and attendance compensation based on a need for the regular aid and attendance of another person and/or on being housebound is not warranted. 

VI.  Petition to Reopen and Service Connection Claims

A.  Pertinent Statutes and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R.                   § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R.
§ 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R.    § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a).
Generally, a claim which has been denied in a Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

B.  Right Carpal Tunnel Syndrome

In a July 1992 rating decision, the AOJ denied entitlement to service connection for carpal tunnel syndrome (CTS) on the basis that the disability was not shown in the service treatment records (STRs) or during a December 1991 VA neurologic examination.  

The Veteran was notified of the AOJ's determination in a July 1992 letter but he did not initiate an appeal or submit new and material evidence relevant to the any of the claim during the one year appeal period following the issuance of the July 1992 rating decision.  See 38 C.F.R. § 3.156(b). 

Review of the record reveals that additional service treatment and personnel records have been associated with the record since the July 1992 rating decision.  However, the new STRs, as well as the newly received service personnel records (SPRs), do not contain any information or evidence relevant to, or which would substantiate, the CTS claim.  Therefore, the newly received STRs and SPRs are not deemed relevant to the right-hand CTS claim and 38 C.F.R. § 3.156(c) is not applicable to this claim.

Accordingly, the July 1992 rating decision became final as to the carpal tunnel syndrome claim.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

However, since the July 1992 rating decision, the Veteran filed a claim seeking service connection for CTS affecting the right hand only and, in support of his claim, submitted evidence showing he has been diagnosed with mild CTS in his right hand.  See September 2002 informal claim; May 2002 EMG report; private treatment records dated October 2003 and October 2007.  This evidence is new, in that it was not of record at the time of the prior final decision.  Further, the evidence is material as it relates to an unestablished fact necessary to substantiate the Veteran's claim, namely, whether he has a current diagnosis.  See 38 C.F.R.             §§ 3.156, 4.125(a).

Therefore, as new and material evidence has been received, the claim of entitlement to service connection for a right-hand CTS is reopened.

B.  Coronary Artery Disease

In June 2015, the RO denied the Veteran's claim of service connection for coronary artery disease on the basis that the June 2015 VA examiner determined that his atherosclerotic heart disease was non-ischemic and that only ischemic heart disease is considered presumptive as due to herbicide exposure.  The RO also noted that a heart disability was not shown in the Veteran's service treatment records.  
In October 2016, the June 2015 VA examiner provided an addendum opinion wherein he noted that the Veteran's non-ischemic heart disease is at least as likely as not incurred in or caused by an in-service injury, event, or illness, noting that given his Vietnam service, service connection should be awarded for heart disease on a presumptive basis as due to herbicide exposure.  While this opinion appears to provide a basis on which to grant service connection, the Board notes that the RO correctly noted that only ischemic heart disease is considered presumptive as due to herbicide exposure, thereby rendering the October 2016 VA opinion inadequate.  
Nevertheless, while presumptive service connection based upon herbicide exposure is not available for the Veteran's non-ischemic heart disease, the Veteran has asserted that his heart disability may be secondary to his service-connected diabetes mellitus.  See October 2016 VA Form 9.  

After a careful review of the record, the Board finds that the probative evidence of record reveals that the Veteran's coronary artery disease was caused by his service-connected diabetes mellitus, type II.   In this regard, the VA examiner opined in an October 2016 addendum opinion that the Veteran's risk factors for developing coronary artery disease included his diabetes mellitus.  The VA examiner was unable to state to what degree his diabetes was more of a risk factor than the others.  
Although this opinion contains only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003).   There is no contrary opinion of record.

The Board also finds that the Veteran has competently and credibly provided lay evidence regarding the onset of symptomatology later associated with his coronary artery disease.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

In summary, the Board finds that service connection is warranted as the evidence regarding the relationship between the Veteran's coronary artery disease and his service-connected diabetes mellitus, type II, is at least in relative equipoise, and he has competently and credibly provided a lay account of the onset of symptoms associated with coronary artery disease after service.  Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection for coronary artery disease is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 ; Gilbert, supra.

 
C.  Macular Rash

The Veteran is seeking service connection for a macular rash which he has asserted was incurred as a result of his exposure to herbicides during service.  In support of his claim, the Veteran has asserted that he has had a chronic rash since his Vietnam service and his wife has stated that he has a permanent rash around his neck, which also appears on his face, scalp, and feet.  See February 2009 NOD; April 2002 statement from P.H.  

After a careful review of the record, the Board finds that the probative evidence of record reveals that the Veteran's macular rash had its onset during service.  Service treatment records show that he was seen for a rash on various parts of his body during service.  In July 1975, he was diagnosed with a rash on his neck and lower legs while he received treatment for a macular rash on his arms and trunk in March 1981.  While the Veteran's skin was normal on his June 1991 separation examination, the Veteran and his wife have reported having a chronic rash since his Vietnam service and their reports are considered competent.  Additionally, the medical evidence shows the Veteran sought treatment for dyshidrosis on his feet in 1996 and May 1998, and he also reported developing a rash and shaking while taking Penicillin in January 1998.  

Review of the record shows the Veteran complained of and sought treatment for a macular rash on his forehead.  See VA treatment records dated November 2000 and May and July 2001.  While more recent treatment records reflect that the Veteran's skin is normal, the evidence showing treatment for a forehead rash is considered evidence of a current disability.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (with regard to claims of service connection, the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim).

The Veteran was afforded a VA skin examination in February 2008 during which he and his wife reported that he intermittently experienced an itchy rash on his forehead, face and feet.  The examiner noted that a rash was not evident on evaluation but stated that the reported skin rash was not caused by or a residual of his herbicide exposure, as the reported rash did not sound like chloracne and no scarring was visible.  The examiner also noted that, while the Veteran was seen for a skin rash during service, there were no sequelae following the episodic treatment and no indication of skin problems on his retirement examination.  However, the examiner did not consider the reports of the Veteran and his wife that his current macular rash symptoms began during service and continued since that time and based his opinion entirely on the absence of a skin condition on the Veteran's retirement examination report.  See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion).  This opinion is therefore afforded little, if any, probative weight.

The Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case.  See Mariano v. Principi, 17 Vet. App. 305 (2003).  There is no contrary opinion of record. 

The Board also finds that the Veteran and his wife have competently and credibly provided lay evidence regarding the onset of symptomatology later associated with his macular rash.  See Jandreau, supra.

In summary, the Board finds that service connection is warranted as the evidence regarding the relationship between the Veteran's macular rash and service is at least in relative equipoise, and he has competently and credibly provided a lay account of the onset of symptoms associated with during service.  Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection for macular rash is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 


ORDER

The appeal as to the claim of service connection for peripheral neuropathy affecting the right and left upper extremities is dismissed.

The appeal as to the claim of service connection for peripheral neuropathy affecting the right and left lower extremities is dismissed.

An effective date of October 13, 1999, but no earlier, for the assignment of a 40 percent rating for a chronic lumbar strain is granted, subject to the laws and regulations governing the payment of monetary benefits.

An effective date of July 19, 2006, but no earlier, for the award of service connection for diabetes mellitus is granted, subject to the laws and regulations governing the payment of monetary benefits.

The issue of entitlement to an earlier effective date for the award of service connection for myofascial and vascular cephalgia is dismissed.

An effective date earlier than June 19, 2014 for the award of service connection for right upper extremity peripheral neuropathy is denied.

An effective date earlier than June 19, 2014 for the award of service connection for left upper extremity peripheral neuropathy is denied.

An effective date earlier than June 19, 2014 for the award of service connection for right lower extremity peripheral neuropathy is denied.

An effective date earlier than June 19, 2014 for the award of service connection for left lower extremity peripheral neuropathy is denied.

Prior to October 13, 1999, a rating in excess of 10 percent for lumbar strain is denied.  

Beginning on October 13, 1999, a rating in excess of 40 percent for lumbar strain is denied.  

From July 11, 2000, to December 11, 2008, a 30 percent rating, but no higher, for a history of cervical strain with degenerative disc disease is granted, subject to the laws and regulations governing the payment of monetary benefits.

A rating in excess of 30 percent for a history of cervical spine with degenerative disc disease is denied.  

An initial 10 percent rating, but no higher, for GERD is granted, subject to the laws and regulations governing the payment of monetary benefits.

SMC based on aid and attendance/housebound status is denied.

New and material evidence having been received, the claim for service connection for a right carpal tunnel syndrome is reopened; the appeal is granted to this extent only.

Service connection for coronary artery disease, as secondary to service-connected diabetes mellitus, is granted.

Service connection for a macular rash is granted.



REMAND

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69(1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  For below noted reasons, the Board finds that an opinion is necessary in order to determine the nature and etiology of the Veteran's claimed right carpal tunnel syndrome and degenerative arthritis and fibromyalgia and an addendum opinion is necessary to determine the nature and etiology of his claimed liver disability.

Right Carpal Tunnel Syndrome

The Veteran generally contends that his right carpal tunnel syndrome began during service.  Service treatment records show the Veteran was seen for problems with his left hand during service in March and September 1980 but are negative for complaints, treatments or diagnoses related to his right hand.  A May 2002 EMG report diagnosed the Veteran with

Liver Disability

The Veteran is seeking service connection for a liver disability, which he has asserted was incurred as a result of the medication he has taken for his service-connected lumbar and cervical spine disabilities over the years.  See September 2002 Veteran statement.  In support of his claim, the Veteran has submitted various articles which state that prolonged or repeated administration of acetaminophen in therapeutic doses appears to lead to the development of chronic hepatitis and cirrhosis.  In the alternative, the Veteran has argued that his liver disability may be related to his exposure to chemicals and herbicides during service in Vietnam.  See Id.  

The Veteran was afforded a VA liver examination in February 2008, at which time the examiner noted the Veteran had been diagnosed with a genetic disorder called hemochromatosis compound heterozygote, with iron deposits in the liver, which likely caused his liver cirrhosis.  While the VA examiner noted the Veteran was given large doses of Tylenol with Darvocet to manage his back pain, he opined that the liver disorder is less likely as not caused by or a result of the medications given for his chronic back pain because acetaminophen toxicity levels were not noted in the record.  The February 2008 VA examiner also stated that he was unable to find documentation of other clinicians stating that the Veteran's liver disorder was not due to his genetic disease.  

The February 2008 VA opinion is inadequate because it is based, at least partially, on an inaccurate factual basis, e.g., that the Veteran has been diagnosed with hemochromatosis.  In this regard, the record reflects that the Veteran was initially diagnosed with hemochromatosis; however, subsequent evaluation revealed that his liver findings were not consistent with hemochromatosis.  See August 2002 treatment record from Dr. G.; June 2002 CT report.  Furthermore, even if the Veteran's correct diagnosis of hemochromatosis, the record includes a statement from Dr. R. who indicates that the Veteran's liver disease may, in fact, be related to his long-term use of nonsteroidal anti-inflammatory drugs (NSAIDS).  See February 2002 treatment record from Dr. R.; see also various articles submitted by the Veteran in support of his claim.  

Additionally, a November 2000 consultation report reflects that the Veteran's "deranged LFTs "or liver function tests could be related to chemical exposure or chemical induced, while a July 2001 private treatment record indicates that the Veteran's liver disease may be chemical induced.  In this regard, while liver disorders are not diseases for which service connection may be presumed as due to the result of herbicide exposure, the law does not preclude a Veteran from establishing that his claimed disability is causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R.     § 3.303.

Given that the Veteran is presumed to have been exposed to herbicides while serving in Vietnam and there is evidence which indicates that his liver disorder maybe related to chemical exposure, a medical opinion is also needed that addresses whether there is likely a direct relationship between the Veteran's liver disability and his in-service herbicide exposure.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (when determining service connection, all applicable theories of entitlement must be considered).  

Given the foregoing, the Board finds this claim must be remanded to obtain an addendum opinion that addresses the foregoing inquiries.  

Degenerative Arthritis and Fibromyalgia

The Veteran is seeking service connection for degenerative arthritis which he has asserted is manifested in several joints and is systemically related to his military service, including any chemical exposure therein.  He has also asserted that service connection is warranted for fibromyalgia which he has asserted is related to his military service in Vietnam and the Persian Gulf.  See February 2009 NOD.  

The STRs show complaints of swollen and painful joints, with cramps and pain in his legs.  See e.g., STRs dated September 1990 and June 1991; June 1991 report of medical history.  Notably, during a Desert Storm screen, the Veteran reported having past and present joint pain in all of his joints at all times, as well as muscle pain, overall body stiffness and pain, and fatigue and weakness.  

Post-service treatment records show the Veteran has a history of fibromyalgia.  See August 2002 treatment record from Dr. G. and November 2002 private treatment record.  Post-service records also reflect that the Veteran has complained of fatigue, as well as joint and muscle stiffness and pain, that have been variously attributed to a generalized chronic arthritis problem and possibly hemochromatosis and anemia.  See treatment records dated January 1998, October 2001, October 2007, March 2008, October 2010, January 2011, and September 2012.  

Despite the foregoing, it does not appear that the AOJ has considered whether the Veteran's various complaints, while attributed to varying diagnoses, constitute a chronic multi-symptom illness, such as chronic fatigue syndrome or fibromyalgia.  In fact, the Veteran has not been afforded a VA examination in conjunction with these claims and, as a result, there remains a question as to the etiology of his claimed arthritis and fibromyalgia disabilities, including the various other complaints associated therewith.  Therefore, on remand, the Veteran should be afforded a VA Gulf War Protocol examination.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of any carpal tunnel syndrome affecting the right hand.  The examiner should offer an opinion as to whether any disability affecting the right hand, to include carpal tunnel syndrome is related to service, to include any incident of service.  The examiner should provide a complete rationale for the opinion given which should include a discussion of the Veteran's asserted symptoms he had in service.

2. Return the claims file to the VA examiner(s) who conducted the Veteran's February 2008 VA liver, examination.  The claims file and a copy of this Remand must be made available to the examiner(s) and the examiner(s) shall note in the examination report that the claims folder and the Remand have been reviewed.  If the February 2008 VA examiner(s) is/are not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. 

Liver Disability - after reviewing the record, the examiner should identify all liver disabilities that have been manifested and/or diagnosed during the appeal period, i.e., since March 2002.  See e.g., private medical records dated January and July 2001; February 2002 treatment record from Dr. R.; June 2002 CT report; August 2002 liver biopsy and treatment record from Dr. G.  

Then, for each liver disability identified, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent) that the disability (a) was caused by OR (b) is or has been aggravated (worsened beyond natural progression) by the medication taken for his service-connected lumbar and cervical spine disabilities.  

In answering the foregoing, the examiner should consider and address the February 2002 treatment record from Dr. R. and various articles submitted by the Veteran which state that prolonged or repeated administration of acetaminophen in therapeutic doses appears to lead to the development of liver disease.  

The examiner should also offer an opinion as to whether is it at least as likely as not (50 percent or greater probability) that disability is directly related to any chemical or herbicide exposure during service.  

In answering the foregoing, the examiner should consider and address the November 2000 consultation report and July 2001 private treatment record which indicate that the Veteran's liver disability may be related to chemical exposure or chemical induced.  

In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions.

A rationale must be provided for each opinion.

3. Schedule the Veteran for a VA Gulf War Protocol examination to address the etiology of his claimed arthritis and fibromyalgia disabilities.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

After reviewing the record, conducting a comprehensive general medical examination, and providing details about the onset, frequency, duration, and severity of all relevant symptoms, including fatigue, muscle pain, and joint pain, the examiner should specifically state whether the Veteran's muscle and joint aches or pain are attributed to a known clinical diagnosis.  The examiner should also specifically state whether the Veteran's fatigue or other relevant symptoms are attributed to a known clinical diagnosis.

If any identified symptoms of fatigue or joint and muscle aches and pains have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether any symptoms are part of an undiagnosed illness or a medically unexplained chronic multi symptom illness. 
In addition, the examiner should render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition is related to the Veteran's military service, to include exposure to environmental or chemical hazards during the Persian Gulf War.  

A complete rationale must accompany all opinions expressed.

4. After completing the above and any other development deemed necessary, readjudicate the claims remaining on appeal.  If any benefit sought on appeal is not granted, the Veteran and his representative should be provided an SSOC and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).

______________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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