judge_norm: ANDREW J MULLEN

benefit: dic

benefit: pension

text:
Citation Nr: 0923000
Decision Date: 06/18/09    Archive Date: 06/23/09

DOCKET NO.  07-10 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines

THE ISSUES

1.  Entitlement to service connection for cause of death.

2.  Entitlement to accrued benefits.

3.  Basic eligibility for non-service-connected death pension
benefits.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel

INTRODUCTION

The appellant is seeking benefits as the surviving spouse of
an individual (hereinafter "the decedent") who had verified
service in the Philippine Commonwealth Army from November
1941 to April 1942, and in the Regular Philippine Army in
March 1945.

This matter comes before the Board of Veterans' Appeals
(Board) from a July 2006 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. � 20.900(c) (2008).  38 U.S.C.A. � 7107(a)(2)
(West 2002).

FINDINGS OF FACT

1.  According to the official certificate of death, the
decedent's death in December 2001 was caused by multiple
organ failure with widespread metastasis of renal cell
cancer.  No other cause of death was indicated.

2.  At the time of his death, the decedent had no service-
connected disabilities, and there were no claims for service
connection pending.  There is no documentation establishing
that he was ever a prisoner of war (POW).

3.  The competent and probative evidence of record
preponderates against a finding that the decedent's death was
caused by an illness or disease incurred in or aggravated by
service.

4.  The appellant did not file a claim for death pension or
dependency and indemnity compensation (DIC) benefits until
May 2005, which was more than one year after the decedent's
death.

5.  The decedent did not have qualifying service to be
eligible for VA pension benefits, and therefore the
appellant, as his surviving spouse, is not eligible for VA
death pension benefits.

CONCLUSIONS OF LAW

1.  The cause of the decedent's death was not related to an
injury or disease incurred in or aggravated by active
military service, nor may it be presumed that his death was
related to service.  38 U.S.C.A. �� 1101, 1102, 1110, 1112,
1131, 1310, 1311 (West 2002 & Supp. 2008); 38 C.F.R. ��
3.102, 3.303, 3.307, 3.309, 3.312 (2008).

2.  The requirements for entitlement to accrued benefits have
not been met, as the claim was not timely filed.  38 U.S.C.A.
� 5121 (West 2002 & Supp. 2008); 38 C.F.R. � 3.1000 (2008).

3.  The criteria for basic eligibility for VA non-service-
connected pension benefits have not been met.  38 U.S.C.A. ��
101(2), 107, 1521 (West 2002 & Supp. 2008); 38 C.F.R. �� 3.1,
3.2, 3.3, 3.6, 3.40, 3.41 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating
their claims for VA benefits, as codified in pertinent part
at 38 U.S.C.A. �� 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2008); 38 C.F.R. �� 3.102, 3.159, 3.326(a) (2008).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and her representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide.  38 C.F.R. �
3.159(b)(1) (2008).  This notice must be provided prior to an
initial unfavorable decision on a claim by the RO.  Mayfield
v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).  In addition, the decision
of the U.S. Court of Veterans Appeals (Court) in Dingess v.
Nicholson, 19 Vet. App. 473 (2006) requires more extensive
notice in claims for compensation, e.g., as to potential
downstream issues such as disability rating and effective
date.

If complete notice is not provided until after the initial
adjudication, such a timing error can be cured by subsequent
legally adequate VCAA notice, followed by readjudication of
the claim, as in a Statement of the Case (SOC) or
Supplemental SOC (SSOC).  Moreover, where there is an uncured
timing defect in the notice, subsequent action by the RO
which provides the claimant a meaningful opportunity

to participate in the processing of the claim can prevent any
such defect from being prejudicial.  Mayfield v. Nicholson,
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Court of Appeals for the Federal Circuit previously
held that any error in VCAA notice should be presumed
prejudicial, and that VA must bear the burden of proving that
such an error did not cause harm.  Sanders v. Nicholson, 487
F.3d 881 (2007).  However, the U.S. Supreme Court has
recently reversed that decision, finding it unlawful in light
of 38 U.S.C.A. � 7261(b)(2), which provides that, in
conducting review of decision of the Board, a court shall
take due account of rule of prejudicial error.  The Supreme
Court in essence held that - except for cases in which VA has
failed to meet the first requirement of 38 C.F.R. � 3.159(b)
by not informing the claimant of the information and evidence
necessary to substantiate the claim - the burden of proving
harmful error must rest with the party raising the issue, the
Federal Circuit's presumption of prejudicial error imposed an
unreasonable evidentiary burden upon VA and encouraged abuse
of the judicial process, and determinations on the issue of
harmless error should be made on a case-by-case basis.
Shinseki v. Sanders, No. 07-1209 (S. Ct. April 21, 2009).

In May 2005, VA sent the appellant a letter informing her of
the types of evidence needed to substantiate her claim and
its duty to assist her in substantiating her claim under the
VCAA.  The letter informed the appellant that VA would assist
her in obtaining evidence necessary to support her claim,
such as medical records, employment records, or records from
other Federal agencies.  The appellant was advised that it is
her responsibility to provide or identify, and furnish
authorization where necessary for the RO to obtain, any
supportive evidence pertinent to her claim.  See 38 C.F.R. �
3.159(b)(1).  Although no longer required, the appellant was
also asked to submit evidence and/or information in her
possession to the RO.  A February 2008 letter describes how
VA determines disability ratings and effective dates.

The Board acknowledges that the content of the May 2005
letter did not fully comply with the requirements of 38
U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b), as later
amended, regarding VA's duty to notify and assist.  However,
the Board finds that any error in notice is non-prejudicial.
Although the appellant did not receive Dingess notice until
after initial adjudication of the claim, it is clear that she
was provided with the opportunity to participate in the
processing of her claim so as to render any defect in notice
non-prejudicial.  For example, the July 2006 rating decision
and January 2007 SOC explained the basis for the RO's action,
and the SOC provided her with an additional 60-day period to
submit more evidence.  In addition, the appellant
demonstrated through submission of additional evidence that
she was aware of the types of evidence required to
substantiate her claim.  Moreover, the benefits being sought
are not being granted in this case, so the Board will not
reach the issue of effective date discussed by the Court in
Dingess.

In the context of a claim for dependency and indemnity
compensation (DIC) based upon service connection for the
cause of a veteran's death, VCAA notice must include (1) a
statement of the conditions, if any, for which a veteran was
service connected at the time of his or her death; (2) an
explanation of the evidence and information required to
substantiate such a claim based on a previously service-
connected condition; and (3) an explanation of the evidence
and information required to substantiate the claim based on a
condition not yet service connected.  Hupp v. Nicholson, 21
Vet. App. 342, 352-53 (2007).  While there are particularized
notice obligations with respect to a claim for DIC, there is
no preliminary obligation on the part of VA to conduct a pre-
decisional adjudication of the claim prior to providing a
section 5103(a)-compliant notice.  The Board finds that in
the present case, the requirements of the VCAA notice under
the Hupp decision have been fulfilled, because the decedent
did not have any service-connected disabilities at the time
of his death and the claimant has been given an explanation
of how to substantiate a DIC claim for a condition not yet
service connected.

It appears that all obtainable evidence identified by the
appellant relative to her claim has been obtained and
associated with the claims file, and that neither she nor her
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal.

It is the Board's conclusion that the appellant has been
provided with every opportunity to submit evidence and
argument in support of her claim, and to respond to VA
notices.  Moreover, the appellant has demonstrated knowledge
of, and has acted upon, the information and evidence
necessary to substantiate the pending claim.  See, e.g.,
Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was
convinced that the appellant and representative had
demonstrated actual knowledge of the information and evidence
necessary to establish the claim).  Moreover, the appellant
has not identified any evidence which she would have
submitted if Dingess notice had been provided earlier, nor
has she demonstrated any prejudicial or harmful error in VCAA
notice, and any presumption of error as to the first element
of VCAA notice has been rebutted in this case.  See Shinseki
v. Sanders, supra.

With regard to VA's duty to assist, VA obtained the
decedent's service records and requested verification of type
and dates of service, as well as the decedent's status as a
former prisoner of war (POW).  VA also requested the records
of Drs. A. P. I. O. and A. L. V., private physicians named by
the appellant as having treated the decedent for renal
cancer, but the requests for records were returned to VA for
an unexplained reason.

Accordingly, the Board finds that VA has satisfied its duty
to assist the appellant in apprising her as to the evidence
needed, and in obtaining evidence pertinent to her claim
under the VCAA.  Therefore no useful purpose would be served
in remanding this matter for yet more development.  Such a
remand would result in unnecessarily

imposing additional burdens on VA, with no additional
benefits flowing to the appellant.  The Court of Appeals for
Veteran Claims has held that such remands are to be avoided.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Service Connection for Cause of Death

A.  Applicable Law

Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131 (West 2002 & Supp. 2008);
38 C.F.R. � 3.303(a) (2008).

Where there is a chronic disease shown as such in service or
within the presumptive period under 38 C.F.R. � 3.307 so as
to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service connected, unless clearly
attributable to intercurrent causes.  This rule does not mean
that any manifestation in service will permit service
connection.  To show chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic."  When the disease identity is established, there
is no requirement of evidentiary showing of continuity.  When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim.  38 C.F.R. � 3.303(b).

Service connection may be granted for disease that is
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service.  38 U.S.C.A. � 1113(b); 38 C.F.R.
� 3.303(d).

The Court of Appeals for Veterans Claims has held that, in
order to prevail on the issue of service connection, there
must be:  (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999).

In order for service connection for the cause of a veteran's
death to be granted, it must be shown that a service-
connected disability caused the death, or substantially or
materially contributed to cause death.  A service-connected
disability is one that was incurred in or aggravated by
active service, one that may be presumed to have been
incurred during such service, or one that was proximately due
to or the result of a service-connected disability.  38
C.F.R. � 3.312.  When it is determined that a veteran's death
was service connected, his or her surviving spouse is
generally entitled to dependency and indemnity compensation
(DIC).  See 38 U.S.C.A. � 101.

The death of a veteran will be considered as having been due
to a service-connected disability when such disability was
either the principal or contributory cause of death. 38
C.F.R. � 3.312(a).  The service-connected disability will be
considered the principal (primary) cause of death when such
disability, either singly or jointly with some other
condition, was the immediate or underlying cause of death or
was etiologically related thereto.  38 C.F.R. � 3.312(b).
The service-connected disability will be considered a
contributory cause of death when it contributed so
substantially or materially to death that it combined to
cause death, or aided or lent assistance to the production of
death.  It is not sufficient to show that it casually shared
in producing death, but rather it must be shown that there
was a causal connection.  38 C.F.R. � 3.312(c)(1).  The
debilitating effects of a service-connected disability must
have made the decedent materially less capable of resisting
the fatal disease or must have had a material influence in
accelerating death.  See Lathan v. Brown, 7 Vet. App. 359
(1995).

There are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death.  In such a situation,
however, it would not generally be reasonable to hold that a
service connected disability accelerated death unless such
condition affected a vital organ and was of itself of a
progressive or debilitating nature.  38 C.F.R. � 3.312(c)(3),
(4).

The law also provides that, in cases where the veteran is a
former POW, the following diseases shall be service connected
if manifest to a degree of disability of 10 percent or more
at any time after discharge or release from military service
even though there is no record of such disease during
service, provided the rebuttable presumption provisions of 38
C.F.R. � 3.307 are also satisfied: psychosis; any of the
anxiety states; dysthymic disorder (or depressive neurosis);
organic residuals of frostbite, if it is determined that the
veteran was interned in climatic conditions consistent with
the occurrence of frostbite; post-traumatic osteoarthritis;
atherosclerotic heart disease or hypertensive vascular
disease (including hypertensive heart disease) and their
complications (including myocardial infarction, congestive
heart failure, arrhythmia); stroke and its complications.  38
C.F.R. � 3.309(c).

In addition, if the veteran is a former POW and was interned
or detained for not less than 30 days, the following diseases
shall be presumptively service connected, as above:
avitaminosis; beriberi (including beriberi heart disease);
chronic dysentery; helminthiasis; malnutrition (including
optic atrophy associated with malnutrition); pellagra; any
other nutritional deficiency; irritable bowel syndrome;
peptic ulcer disease; peripheral neuropathy except where
directly related to infectious causes; cirrhosis of the
liver.

It is the Board's responsibility to evaluate the entire
record on appeal.  See 38 U.S.C.A. � 7104(a).  When there is
an approximate balance in the evidence regarding the merits
of an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant.  38 U.S.C.A. � 5107(b); 38 C.F.R. �
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail.  The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.

B.  Facts and Analysis

In this case, the appellant contends that the decedent was a
POW and, as such, was exposed to many diseases, and that his
death was therefore related to active service.

The decedent died on December [redacted], 2001, and the Certificate
of Death lists the primary cause of death as multiple organ
failure with widespread metastasis of renal cell cancer.

A November 2005 response from the National Personnel Records
Center (NPRC) verifies that the Veteran had service in the
Philippine Commonwealth Army from November 1941 to April
1942, and in the Regular Philippine Army in March 1945.
However, VA determined that the Veteran did not have POW
status for reasons detailed in a December 2006 Administrative
Decision.  The Board acknowledges the November 2002
Certification from the Armed Forces of the Philippines that
states the decedent was a POW from April to July 1942.  It
further acknowledges the POW questionnaire completed by the
appellant and submitted in June 2005 providing additional
detail regarding her husband's POW experience.  However, the
record does not contain documentation which would
authoritatively verify the veteran's alleged POW status, such
as Philippine Red Cross records, a Guarantor's receipt for a
released POW, a Japanese Parole Certificate for a released
POW, or War Claim Commission record.  Moreover, the NPRC
response does not indicate any periods of POW status during
service.  Thus, the Board agrees with the December 2006
Administrative Decision that there is no probative
documentation establishing POW status, and the provisions of
38 C.F.R. � 3.309(c) allowing for presumptive service
connection do not apply.  Moreover, the Board notes that
renal cancer and multiple organ failure are not diseases
listed specifically under 3.309(c), and thus, even if the
Veteran had former POW status, the presumptive provision
would not apply.

Next, the Board has considered whether service connection for
the decedent's death can be granted on a direct basis.
However, there are no records from service that show
treatment for renal cancer, nor are there any post-service
records showing treatment for the condition.  The appellant
provided the names of two private physicians who treated the
decedent for renal cancer, one of whom began treating the
decedent in June 2000.  However, VA's requests for those
records were returned for an unknown reason.  Thus, no post-
service treatment records are available.

Thus, although the Board is sympathetic with the appellant's
loss of her husband, there is a lack of competent medical
evidence to warrant a favorable decision.  Here, the
appellant has failed to submit any competent medical evidence
to provide a nexus between any in-service injury or disease
and the conditions that caused or contributed to cause the
decedent's death.  The preponderance of the evidence is
therefore against the appellant's claim of entitlement to
service connection for the cause of the decedent's death, and
the benefit-of-the-doubt doctrine is inapplicable.  38
U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert, supra.

III.  Accrued Benefits

The pertinent law and regulations governing claims for
accrued benefits state that, upon the death of a veteran, his
lawful surviving spouse may be paid periodic monetary
benefits to which such veteran was entitled at the time of
death, and which were due and unpaid for a period not to
exceed two years, based on existing rating decisions or other
evidence that was on file when the veteran died.  38 U.S.C.A.
� 5121; 38 C.F.R. � 3.1000.

An application for accrued benefits must be filed within one
year of the date of death.  A claim for death pension or
dependency and indemnity compensation by a surviving spouse
shall include a claim for any accrued benefits.  38 C.F.R.
� 3.1000(c); see also 38 C.F.R. � 3.152(b).

In this case, the appellant's husband died in December 2001.
At the time of his death, the decedent did not have any
service-connected disabilities, nor was there any claim for
service connection pending.  A review of the file reveals the
appellant did not submit a claim for death pension or DIC
until more than one year after her husband's death.  In this
regard, the Board notes the appellant submitted her formal
claim in May 2005, which was more than three years after the
decedent's death.  Therefore, because the appellant's claim
for death benefits and/or accrued benefits was received in
excess of the one-year time requirement, she is not legally
entitled to accrued benefits.  38 C.F.R. � 3.1000(c); see 38
C.F.R. � 3.152(b).

The law pertaining to eligibility for accrued benefits is
dispositive of this issue; therefore the appellant's claim
must be denied because of the absence of legal entitlement
under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).

IV.  Death Pension

As noted above, the decedent had recognized service with the
Philippine Commonwealth Army from November 1941 to April
1942, and in the Regular Philippine Army in March 1945.  He
had no other recognized service and, as discussed above, is
not shown by the record to have been a former POW.

These categories of service do not qualify the decedent for
VA pension benefits.  In Cacalda v. Brown, 9 Vet. App. 261,
264 (1996), it was held that, under 38 U.S.C.A. � 107(a),
certain service by a decedent before July 1, 1946, in the
organized military forces of the Government of the
Commonwealth of the Philippines is deemed not to be active
service for the purpose of granting non-service-connected
benefits, including VA pension benefits, although such a
decedent may receive other types of VA benefits, e.g.,
disability compensation benefits, where supported by the
evidence.  See 38 C.F.R. �� 3.40, 3.41.  It was noted in
Cacalda, supra, that this law had been held not to violate
the United States Constitution, citing Quiban v. Veterans
Admin., 928 F.2d 1154, 1158 (D.C. Cir. 1991).

Here, as in Cacalda, supra, the decedent's recognized service
falls into service period categories which expressly have
been deemed not to be active military service for the purpose
of receiving VA non-service-connected pension benefits.
Thus, the appellant is not entitled to VA death pension
benefits, because such an award must be predicated upon the
decedent's eligibility.  With his eligibility lacking, so,
too, is hers.  Since the law is dispositive of her claim, as
in Cacalda, supra, her appeal as to this issue must be
terminated because of the absence of legal merit or the lack
of entitlement under the law, analogous to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a
claim upon which relief can be granted.  See, e.g., Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).

In order to establish basic eligibility for VA disability
pension benefits, it is required, in part, that the
individual with respect to whom pension is claimed be a
veteran who had active military, naval, or air service.  See
38 U.S.C.A. �� 101(2), (24), 1521(a), (j); 38 C.F.R. �� 3.1,
3.6.  That status being lacking under the law applicable to
this case, the claim must be denied.

ORDER

Service connection for cause of death is denied.

Entitlement to accrued benefits is denied, as a matter of
law.

Because the decedent did not have active military service for
purposes of entitlement to VA benefits, basic eligibility for
non-service-connected pension benefits is denied.

___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MICHAEL E KILCOYNE

disposition: denied

text:
Citation Nr: 0924000
Decision Date: 06/25/09    Archive Date: 07/01/09

DOCKET NO.  05-00 697	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas

THE ISSUE

Entitlement to an initial rating in excess of 30 percent for
post-traumatic stress disorder (PTSD) for the period prior to
August 27, 2004, and to a rating in excess of 50 percent for
PTSD for the period from August 27, 2004.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Carolyn Wiggins, Counsel

INTRODUCTION

The veteran served on active duty from September 1955 to
December 1958.

This appeal arises from a June 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas.

The Board of Veterans' Appeals (Board) remanded the Veteran's
claim in November 2006.  The development ordered has been
completed.  Stegall v. West, 11  Vet. App. 268 (1998).

FINDINGS OF FACT

1.  Prior to August 27, 2004, the Veteran's PTSD is not shown
to be productive of  occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory; impaired judgment; impaired
abstract thinking; and disturbances of motivation and mood.

2.  From August 27, 2004, the Veteran's PTSD is not shown to
be productive of occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation, obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control;
spatial disorientation; neglect of personal appearance and
hygiene; and difficulty in adapting to stressful
circumstances.

CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 30
percent for PTSD, for the period prior to August 27, 2004,
have not been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R.
� 4.130, Diagnostic Code 9411 (2008).

2.  The criteria for an initial rating in excess of 50
percent for PTSD, for the period from August 27, 2004, have
not been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R.
� 4.130, Diagnostic Code 9411 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board must first address VA's duty to notify and assist
claimants.  See 38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
2002 & Supp. 2005); 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a) (2008).

Since this was initially a claim for service connection,
which was granted, and the appeal concerns the downstream
disability evaluation element of the grant, 38 U.S.C.A.
� 5103(a) notice is no longer required because the purpose
that the notice is intended to serve has been fulfilled.

The record reflects that the available evidence relevant to
this appeal has been obtained, and the veteran was examined
for VA purposes in connection with the appeal.  The Veteran
appealed and gave testimony at a hearing before a Decision
Review Officer at the RO and a videoconference before the
undersigned.

Initial Rating for PTSD

Disability evaluations, in general, are intended to
compensate for the average impairment of earning capacity
resulting from service-connected disability.  They are
primarily determined by comparing objective clinical findings
with the criteria set forth in the rating schedule.
38 U.S.C.A. � 1155; 38 C.F.R. Part 4.

The veteran's PTSD is rated under Diagnostic Code 9411.

Under this code a 30 percent rating is assigned for
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as:  depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).  38 C.F.R.
� 4.130, Diagnostic Code 6411 (2008).

A 50 percent rating is to be assigned for occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.  38 C.F.R. � 4.130, Diagnostic Code 6411
(2008).

A 70 percent rating requires occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation, obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.  38 C.F.R. � 4.130, Diagnostic Code 9411
(2008).

The RO granted service connection for PTSD in the June 2003
rating decision.  Service connection was made effective as of
November 16, 2001 and a 30 percent rating was assigned.  The
Veteran appealed the initial rating assigned for his PTSD.
In a November 2004 rating decision, a 50 percent rating for
PTSD was granted, effective August 27, 2004.  See Fenderson
v. West, 12 Vet. App. 119 (1999).  The Veteran is seeking
higher initial ratings.  He contends his PTSD has resulted in
his being unable to work.

The evidence relevant to the severity of the Veteran's PTSD
prior to August 27, 2004 includes the following:

The Veteran and his spouse were married in October 1961.

November 2001 VA records reveal he was referred to VA from
the Vet Center.  The VA Social Worker noted his speech was
somewhat circumstantial.  He had recently had surgery for two
abdominal aneurysms.  He was unable to work in his job as a
long distance truck driver and was collecting disability,
related to his aneurysms.  He spent most of his time talking
to her about his medical problems.  She noted his mood was
quite anxious and dysthymic.  The Veteran as seen again in
December 2001 and the VA Social Worker concluded it would be
helpful for the Veteran to talk about his family and medical
problems.  She noted his mood was dysthymic.  In January
2002, his speech was still very pressured and somewhat
tangential.  He was very angry about an incident at the
airport involving the security screening.  He could not sleep
and could not stop from playing it over and over in his head.
He was planning to return to work in two weeks, but
anticipated that he would not have many long distance runs.
He kept most of his problems inside.  He also reported
checking his house every night to make sure it was safe.  In
February 2002, the Social Worker noted he was somewhat
disinhibited.  He also reported being quick to anger.  He had
not been medically cleared to return to work and would likely
file for Social Security retirement as he would be 65 on his
next birthday in June.

A January 2002 letter from the Veteran's spouse reported he
had nightmares and flashbacks.  She had seen him wake up
screaming and sweating.  He still had nightmares and his
personality was aloof.  He had problems working with people
and socializing.  He liked being alone.

The Veteran was seen initially for a VA psychiatric
evaluation in March 2002.  He gave a history of working
delivering auto parts, then construction, then worked in a
textile mill after his stint in the Marine Corp.  He was
working as a truck driver which he liked.  He had been
married for forty one years and had four children.  Two his
children lived with him.  He reported he had been getting
depressed since September 2001.

Mental status evaluation in March 2002 revealed he was alert,
oriented times three, somewhat hard of hearing, very concrete
and at times difficult to follow (thought due to limited [7th
grade] education).  There was no current suicidal or
homicidal ideation.  He enjoyed working, doing things with
his hands, yard work, gardening and painting, although the
Veteran had significant sleeping problems and reported severe
flashbacks.

A VA psychiatric examination of the Veteran was conducted in
May 2003.  The Veteran reported having intrusive thoughts.
He avoided situations he knew would be difficult for him.  He
was uncomfortable in crowds and this had led to somewhat
increasing social isolation.  He was emotionally walled off,
numb and detached.  He had ongoing difficulty with anxiety
and depression, and his sleep patterns were disturbed.  His
anger, irritability and short temper had reportedly caused
problems at home and at work, although he was not receiving
any psychiatric care.  Since moving to Arkansas (7 months
earlier) he had gotten a job as a truck driver, but had
increasing difficulty with his anger and irritability and had
gotten in trouble with his supervisor  and was not asked to
come back to that job.  Mental status evaluation found the
Veteran alert, oriented, and cooperative.  His mood appeared
to be neutral.  He was somewhat over detailed in his speech
but was not grossly disorganized.  There was no evidence of
delusions or hallucinations.  There was no suicidal ideation.
PTSD was diagnosed and a Global Assessment of Functioning
(GAF) of 68 was assigned, an indication of only mild
symptoms.

[GAF rating is a scale reflecting the psychological, social,
and occupational functioning on a hypothetical continuum of
mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267
(1996), citing Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1994). A GAF score of 41 to 50 is
reflective of serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). A GAF
score of 51 to 60 is indicative of moderate symptoms or
moderate difficulty in social, occupational or school
functioning.  A GAF score of 61 to 70 is reflective of some
mild symptoms or some difficulty in social, occupation, or
school functioning, but generally functioning pretty well,
has some meaningful interpersonal relationships.]

The Veteran's PTSD prior to August 21, 2004 caused symptoms
such a anger, nightmares, irritability and sleep impairment.
There is no evidence of flattened affect.  The Veteran's
speech patterns have been attributed to his educational
background and not to any psychiatric symptoms, and he did
not report having panic attacks, or complain of any memory
loss.  Likewise, no memory loss is noted in the record.
There are no comments on his judgment or ability to learn,
and as to his ability to establish relationships, the Veteran
and his spouse have been married since 1961.  As to his
relationship with employers, his lack of employment was
related in November 2001 to recent abdominal surgery for
aneurysm, and in March 2002 the Veteran reported he was
working as a truck driver.  It is not until May 2003 that he
reported being unemployed, but he nevertheless was assigned a
GAF at that time of 68, indicative of only mild symptoms.

Since the evidence does not show PTSD productive of
occupational and social impairment with reduced reliability
and productivity due to such symptoms as flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory;
impaired judgment; impaired abstract thinking; or much
difficulty in establishing and maintaining effective work and
social relationships, the Board concludes the criteria for an
initial rating in excess of 30 percent prior to August 27,
2004 are not met.

On August 27, 2004, the Veteran was again afforded a VA
psychiatric evaluation.  He reported his current problems
included depression, poor concentration, intrusive thoughts,
sleep disturbance, guilt, nightmares, nervousness,
irritability, panic and an inability to relax.  He had been
increasingly depressed because he was not working even though
he considered himself physically able to work.  He said that
people would not hire him because he was handicapped (had
hearing aids) and had PTSD.

The Veteran had worked primarily as a truck driver.  He had
worked for Allied Van Lines for 17 years, but after a heart
attack in 1985 he left that company and only drove locally.
He had been an owner operator.  He liked driving a truck
because he was by himself most of the time.  He had moved to
Arkansas in 2002 to be near his daughter.  Since then he
reported he had only worked 13 days in November and December
2003.

The examiner noted the Veteran was dressed casually and
demonstrated appropriate grooming and hygiene. His speech was
clear.  His affect was anxious and overall his mood was
anxious and irritated.  Orientation was appropriate.  His
thinking was spontaneous and logical, but circumstantial and
disorganized.  He was preoccupied with the touching incident
in service.  (This, apparently, is the basis for his PTSD,
where the Veteran believes a fellow Marine inappropriately
touched him.)  His relationships seemed fair in quality with
a tendency to be easily irritated.  Self esteem was low
because he had no job.  He was easily distracted.  His
reasoning skills were concrete.  Judgment was diminished due
to his anger, so that irritability affected many of his
decisions.

In summary the VA physician stated the Veteran's increased
depression was related to his not having a job rather than to
his traumatic experiences.  The current intensity of his
symptoms was moderate with impaired social relationships and
occupational functioning.  His unemployment had exacerbated
his condition.  Chronic PTSD was diagnosed and a GAF of 58
assigned.

Based on the August 2004 VA psychiatric evaluation the RO
granted a 50 percent rating, effective August 27, 2004.

In August 2004, the Veteran appeared and gave testimony
before a Hearing Officer at the RO.  The Veteran stated he
was not taking any medication for his PTSD and had not been
receiving any treatment.

The Veteran appeared and gave testimony at a videoconference
before the undersigned in February 2006.  His representative
indicated the Veteran had lost his job as a truck driver
primarily due to his PTSD.  The Veteran was receiving Social
Security and a basic pension.

In December 2004 the Veteran was seen at VA by his primary
care provider.  He was angry because he could no longer work
as a truck driver.  He had recently been diagnosed with
diabetes mellitus, had been hospitalized and put on insulin.
He blamed everyone for his diabetes, and he thought he had
nothing to live for.

The Veteran was seen in the VA Mental Hygiene Clinic in
September 2006.  Objectively the Veteran's mood was labile
and his affect was full range.  He was oriented times four.
He denied any suicidal or homicidal ideation.  His thought
processes were organized and goal directed and his speech was
clear and intelligent.  His dress was casual with good
personal hygiene, and it was recorded he had been unable to
work as a truck driver because of insulin dependent diabetes
since 2002.  A GAF of 65 was assigned.

The Veteran was seen again in November 2006 at the VA Mental
Hygiene Clinic.  He reported being very depressed.  His mood
was labile.  His affect was appropriate and he was oriented
times four.  He denied any suicidal or homicidal ideation,
and his thought processes were organized, with his speech
described as coherent.  His dress was casual and his personal
hygiene was good.  A GAF of 70 was assigned.

April 2007 VA psychiatric evaluation revealed the Veteran had
not driven a truck since November 2002.  He had lost his
commercial drivers license and had not been able to find a
job since that time.  However, he continued to go to
employment agencies looking for work.  He had been married
for the last 46 years.  He lived with his wife.  He was able
to drive and had driven himself to the evaluation.  He also
washed dishes and vacuumed.  He sometimes talked to his
neighbor if they were outside at the same time.  He and his
wife sometimes went to a casino or out to eat, but his wife
was the only one he would "hang around with."  Objectively
he was casually dressed and his hygiene was good.  Speech was
clear and productive.  Affect was sad and overall his mood
was depressed.  Orientation was appropriate and thinking was
spontaneous and logical, but disorganized and rambling.  His
thought content was notable for preoccupation with physical
problems.  He had difficulty remembering the names of people
in his life.  Reasoning skills indicated his thinking was
primarily concrete.  Judgment was considered diminished by
depression.

The examiner summarized that the Veteran's PTSD was
manifested by nightmares, distress when exposed to stimuli
that reminded him of trauma, detachment from others,
restricted affect, sleep disturbance, hypervigilance and an
exaggerated startle response.  It was chronic in nature and
mild in intensity.  He also had depression related to his
physical problems, manifested by sadness, worthlessness,
guilt and diminished pleasure.  His depression was moderate
in intensity.  PTSD and an Adjustment disorder with depressed
mood were diagnosed.  A GAF of 55 was assigned for PTSD and
52 for depression.

For the period beginning on August 27, 2004, the Board has
compared the Veteran' symptoms with those given as examples
for a 70 percent rating.  The Veteran has denied suicidal
ideation.  There is no evidence of obsessional rituals.  His
speech has been reported as clear.  Neither panic or
depression has impaired his ability to function
independently.  While the Veteran has reported being
irritable there is no history of violence or inability to
control himself during the rating period.  The Veteran has
been oriented to time, place and person.  His hygiene and
personal appearance were good.  The Veteran is able to
establish and maintain effective relationships.  He is a
partner in a long term marriage and has kept in touch with
his family and children.

The Board is aware that it is not the specific symptoms
listed in the rating criteria but the level of impairment of
social and occupational functioning that is the basis for
assigning a rating for PTSD.  In this regard, however, the VA
examiner in April 2007 characterized his symptoms of PTSD as
mild, and no record shows it considered worse than moderate,
under the GAF scale.  In these circumstances, the criteria
for an evaluation in excess of 50 percent for PTSD have not
been presented, and the appeal is denied.

ORDER

An initial rating in excess of 30 percent for PTSD, prior to
August 27, 2004, is denied.

An initial rating in excess of 50 percent for PTSD, from
August 27, 2004, is denied.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JOHN E ORMOND, JR

condition: knee

text:
Citation Nr: 0925000
Decision Date: 07/02/09    Archive Date: 07/14/09

DOCKET NO.  06-19 066	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma

THE ISSUE

Entitlement to service connection for a left knee disability.

REPRESENTATION

Appellant represented by:	Oklahoma Department of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Erin McGuire, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1962 to
August 1969.

This matter is before the Board of Veterans' Appeals (Board)
following a Board remand in June 2008.  The matter was
originally on appeal from an October 2004 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Muskogee, Oklahoma.

In March 2008, the Veteran testified at a videoconference
hearing before the undersigned Veterans Law Judge.  At the
hearing, the Veteran asserted that he wished for his claim of
service connection for a left knee disability to be
considered on a direct basis only and not as secondary to a
right foot disability, as originally claimed.

FINDING OF FACT

The Veteran's mild degenerative joint disease of the left
knee was not incurred in service.

CONCLUSION OF LAW

Entitlement to service connection for a left knee disability
is denied.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.303 (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

Stegall Considerations

The Board remanded this matter in June 2008 for the RO to (1)
obtain records from the VA medical center (VAMC) in Muskogee
from May 24, 2006 to the present; (2) make reasonable efforts
to secure records from the Orthopedic Center in Tulsa from
February 12, 2004 to the present; and (3) provide the Veteran
with a VA orthopedic examination.  A remand by the Board
confers upon the veteran, as a matter of law, the right to
compliance with remand orders.  Stegall v. West, 11 Vet. App.
268, 271 (1998).  When remand orders are not complied with,
the Board must ensure compliance.  However, only substantial
compliance, not strict compliance, is necessary.  D'Aries v.
Peake, 22 Vet. App. 97 (2008).  Here, the Board finds that
the RO obtained pertinent VAMC treatment records and
attempted to obtain a release for records from the Orthopedic
Center in Tulsa.  In August 2008, the Veteran stated that he
had no new evidence to submit.  The RO provided a VA
examination in October 2008.  The Board finds that the RO's
actions are in substantial compliance with the remand.

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA with respect to its duty to notify and
assist a claimant in developing a claim.  38 U.S.C.A. ��
5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. � 3.159
(2008). Under the VCAA, upon receipt of a complete or
substantially complete application for benefits, VA is
required to notify the Veteran and his representative, if
any, of any information and medical or lay evidence necessary
to substantiate the claim.  The United States Court of
Appeals for Veterans Claims (Court) has held that these
notice requirements apply to all five elements of a service
connection claim, which include: (1) Veteran status; (2)
existence of a disability; (3) a connection between the
Veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.  See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA law and regulations also indicate that part of notifying a
claimant of what is needed to substantiate a claim includes
notification as to what information and evidence VA will seek
to provide and what evidence the claimant is expected to
provide.  38 U.S.C.A. � 5103; 38 C.F.R. � 3.159(a)-(c).  VCAA
notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004).

The scope of VA's duty to assist will depend on the facts and
circumstances of an individual case, but typically, the duty
to assist requires VA to obtain relevant records from federal
agencies, to make reasonable efforts to obtain relevant
records not in the custody of federal agencies, and in
certain circumstances, to provide a medical examination or
obtain a medical opinion.  38 U.S.C.A. � 5103A; 38 C.F.R. �
3.159.

The Board finds that the requirements of the VCAA have been
met and that VA has no further duty prior to Board
adjudication.  The RO originally provided VCAA notice to the
Veteran in correspondence dated in July 2004.  In that letter
the RO advised the Veteran of VA's duties under the VCAA and
the delegation of responsibility between VA and the Veteran
in procuring the evidence relevant to the claim, including
which portion of the information and evidence necessary to
substantiate the claim was to be provided by the Veteran and
which portion VA would attempt to obtain on behalf of the
Veteran.  A July 2008 notice letter sent by the Appeals
Management Center (AMC) included much of the same
information, including what the evidence must show to
establish entitlement to service-connected compensation
benefits.

In the correspondence dated in July 2008, the AMC also
informed the Veteran that when service connection is granted,
a disability rating and effective date of the award is
assigned.  The AMC explained how the disability rating and
effective date are determined.  Although the AOJ did not
provide fully compliant notice until after initial
adjudication of the claim, it readjudicated the claim and
issued a supplemental statement of the case in February
2009.  The issuance of such notice followed by a
readjudication of the claim remedied any timing defect with
respect to issuance of compliant notice.  See Prickett v.
Nicholson, 20 Vet. App. 370, 376-77 (2006).  The Board finds
that in issuing this letter, the RO has satisfied the
requirements of Dingess/Hartman.

Finally, the Board finds that the RO has satisfied VA's duty
to assist.  The RO obtained the Veteran's service treatment
records, VAMC records and private medical records.  The RO
provided VA examinations in May 2005 and October 2008.  In
his VCAA response, dated in June 2006, the Veteran affirmed
that he had no other evidence to give to VA to substantiate
his claim.  The Veteran made a similar statement in August
2008.  The Veteran has not made the RO or the Board aware of
any other evidence relevant to his appeal and no further
development is required to comply with the duty to assist the
Veteran in developing the facts pertinent to his claim.
Accordingly, the Board will proceed with appellate review.

Legal Criteria

The Veteran filed a claim for service connection of a left
knee disability in January 2004.  The RO denied service
connection in an October 2004 rating decision; the Veteran
appeals that decision.  During his March 2008 Board hearing,
the Veteran testified that his left knee problem is the
result of an injury sustained in service during a parachute
jump at Fort Bragg, North Carolina.

Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred in or aggravated during active
military service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. �
3.303(a).  That an injury or disease occurred in service is
not enough; there must be chronic disability resulting from
that injury or disease.  If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity.  38 C.F.R. � 3.303(b).
Service connection may also be granted for any injury or
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease or injury was incurred in service.  38 C.F.R. �
3.303(d).

"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required.  The burden typically cannot be
met by lay testimony because laypersons are not competent to
offer medical opinions.  Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).

Where a Veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946, and
arthritis becomes manifest to a degree of 10 percent or more
within one year from the date of termination of such service,
such disease shall be presumed to have been incurred in
service, even though there is no evidence of such disease
during the period of service.  This presumption is rebuttable
by affirmative evidence to the contrary.  38 U.S.C.A. ��
1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

When an approximate balance of positive and negative evidence
regarding the merits of a claim exists, the benefit of the
doubt in resolving each issue shall be given to the claimant.
See 38 U.S.C.A. � 5107(b).

Analysis

In assessing whether the Veteran is entitled to service
connection for a left knee disability, the evidence of record
must show that the Veteran currently has that disability.
During his most recent VA examination, conducted in October
2008, the VA examiner diagnosed the Veteran with mild
degenerative joint disease of the left knee with zero to mild
loss of function.  VAMC and private medical records show that
the Veteran has complained of left knee pain on several
occasions.  The competent medical evidence indicates that the
Veteran has a current left knee disorder.

Nevertheless, the medical evidence does not show that the
Veteran's current left knee disorder is related to his active
military service or manifested to a compensable degree within
one year of discharge.  There is evidence that the Veteran
sustained a left knee injury in service.  A service treatment
record dated in April 1965 shows that the Veteran injured his
left knee during a parachute jump.  The knee was swollen and
large, and X-rays taken at the time were negative.  The
Veteran was prescribed light duty.  Subsequent treatment
records, however, show that the Veteran did not suffer from a
chronic left knee problem after the accident.  Notably, just
three months later, in a July 1964 report of medical history
prepared in conjunction with an examination, the Veteran
reported no arthritis, no bone, joint or other deformity and
no trick or locked knee.  In a report of medical history
prepared in conjunction with a June 1969 examination, the
Veteran reported that he had never suffered from a trick or
locked knee.  In the June 1969 examination report, the
military examiner noted normal lower extremities.  In sum,
there is no evidence that the Veteran complained of or
received treatment for his left knee after the April 1964
injury.

The earliest complaints of and treatment for left knee pain
of record were in February 2004.  A private treatment note by
Dr. Gray shows that the Veteran complained of left knee pain
for the past five to six months.  The Board notes that these
complaints occurred 35 years after military service.  In
addition, there is no other medical evidence linking the
Veteran's left knee disability to his active military service
or the year following his discharge.  To the contrary, the
October 2008 VA examiner opined that the Veteran's mild
degenerative joint disease of the left knee is less likely
related or attributable to service and is more likely due to
the age-related wear and tear process.  As the examiner
reviewed the claims file and compiled a detailed report
before offering his conclusions, the Board finds the October
2008 VA examination report and opinion to be highly
probative.

With regard to the Veteran's lay statements that his in-
service fall caused his current left knee problems, the
Veteran does not have medical training and is not competent
to comment on medical matters such as the etiology of a
disability.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
5 (1992); see also 38 C.F.R. � 3.159 (a)(1).  There are
circumstances where lay evidence may be competent and
sufficient to establish a diagnosis or medical etiology of a
condition.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77
(Fed. Cir. 2007).  Here, however, clinical testing and
expertise are required to determine the etiology of a left
knee disorder.  The Veteran's statements offered in support
of his claim are not competent medical evidence and do not
serve to establish that a left knee disability was incurred
in service.

The Board notes that during his March 2008 Board hearing, the
Veteran testified that he injured his left knee during a
"combat jump" that took place at Fort Bragg, North
Carolina.  As discussed above, service treatment records show
that the jump occurred in April 1965.  Service personnel
records, specifically a June 1969 disposition, indicate that
the Veteran served at Fort Bragg until June 1965, then served
in the Republic of Vietnam from July 1965 to May 1966.  Since
the evidence shows that the Veteran's injury occurred in a
non-combat situation in Fort Bragg prior to service in the
Republic of Vietnam, the Board finds that the combat
presumption provision under 38 U.S.C.A. � 1154 is
inapplicable here.

Since the Board has found the VA examination report to be
reliable, and since there is no competent medical evidence to
the contrary, the Board is unable to grant service connection
for a left knee disorder.  The preponderance of the evidence
is against the Veteran's claim, the benefit of the doubt
doctrine is not applicable, and the Board must deny the
claim.  38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet.
App. 49, 58 (1990).

ORDER

Entitlement to service connection for a left knee disability
is denied.

____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: C CRAWFORD

disposition: dismissed

condition: headache

condition: shoulder

condition: neck

disposition: remanded

text:
Citation Nr: 0926000
Decision Date: 07/13/09    Archive Date: 07/21/09

DOCKET NO.  06-29 405	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to an increased initial evaluation in excess
of 10 percent for sarcoidosis.

2.  Entitlement to an initial compensable evaluation for
hidradenitis, left axilla.

3.  Entitlement to service connection for pyelonephritis.

4.  Entitlement to an increased initial evaluation in excess
of 10 percent for left patella tendonitis.

5.  Entitlement to an increased initial evaluation in excess
of 30 percent for migraine headaches.

6.  Entitlement to service connection for right knee
retropatellar pain syndrome.

7.  Entitlement to an initial compensable evaluation for
anemia.

8.  Entitlement to an initial compensable evaluation for
gastroesophageal reflux disease (GERD).

9.  Entitlement to service connection for pityriasis rosea.

10.  Entitlement to an initial evaluation in excess of 10
percent for bilateral shoulder tendonitis, claimed as
bilateral shoulder arthritis.

11.  Entitlement to service connection for neck pain status
post motor vehicle accident, claimed as neck arthritis.

12.  Entitlement to an initial compensable evaluation for
onychomycosis, claimed as removal of toenail.

13.  Entitlement to service connection for
hypercholesterolemia.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Tabitha G. Macko, Associate Counsel

INTRODUCTION

The Veteran had active service from June 1995 to January 2000
(unconfirmed) and January 2003 to January 2005 (confirmed).

This matter is before the Board of Veterans' Appeals (Board)
on appeal from a November 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.

As discussed further below, in February 2007, the Veteran
withdrew the appeal for several issues.  Additionally, the
Board notes that in a rating decision mailed in August 2007,
the RO granted service connection with a noncompensable
evaluation for tinea versicolor, service connection for
uveitis, iritis, also with a noncompensable evaluation, and
service connection, with a 10 percent evaluation, for atopic
eczematous dermatitis.  These three issues are no longer on
appeal, as full relief has been granted.  The August 2007
rating decision also increased the evaluation to 10 percent
for sarcoidosis, effective January 6, 2005.  Since this
increase did not constitute a full grant of the benefits
sought, the sarcoidosis increased rating issue remains in
appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993);
Fenderson v. West, 12 Vet. App. 119 (1999) (separate ratings
can be assigned for separate periods of time based on facts
found -- a practice known as "staged" ratings).

The Board notes that both supplemental statements of the
case, dated August 2007 and October 2007, were confined to
only the sarcoidosis initial evaluation issue and the
hidradenitis initial evaluation issue.  Further, the
Veteran's Statement of Accredited Representative in Appealed
Case, February 2009, also discussed only these two issues.

The Veteran testified before the undersigned in February 2009
at the RO.  A transcript has been incorporated into the
record.  At the Veteran's request the record was held open
for 30 days so that the Veteran may submit additional
evidence.  No new evidence was submitted by the Veteran.

The issue of entitlement to an increased evaluation in excess
of ten percent for sarcoidosis is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  The competent and probative evidence of record
demonstrates that the Veteran's service-connected
hidradenitis scar of the left axilla does not cause any
limitation of function.

2.  By means of a February 2007 statement, and prior to the
promulgation of a decision in this case, the Veteran
requested withdrawal of the issues of entitlement to service
connection for pyelonephritis, right knee retropatellar pain
syndrome, pityriasis rosea, neck pain status post motor
vehicle accident (claimed as neck arthritis) and
hypercholesterolemia.  She also requested withdrawal of the
issues of entitlement to increased initial evaluations for
left knee patella tendonitis, migraine headaches, anemia,
GERD, bilateral shoulder tendonitis, claimed as bilateral
shoulder arthritis, and onychomycosis.

CONCLUSIONS OF LAW

1.  The criteria for the assignment of an initial compensable
evaluation for hidradenitis, left axilla, have not been met.
38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
�� 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 7899-7805 (2008).

2.  The criteria for withdrawal of the Veteran's Substantive
Appeal on the issues of entitlement to service connection for
pyelonephritis and right knee retropatellar pain syndrome,
pityriasis rosea, and neck pain status post motor vehicle
accident (claimed as neck arthritis) and
hypercholesterolemia, as well as the issues of entitlement to
increased initial evaluations for left knee patella
tendonitis, migraine headaches, anemia, GERD, bilateral
shoulder tendonitis, claimed as bilateral shoulder arthritis,
and onychomycosis, have been met.  38 U.S.C.A. �� 7105(b)(2),
(d)(5) (West 2002); 38 C.F.R. �� 20.202, 20.204(b)(c) (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Dismissal-Withdrawal

Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed.  A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision.  38 C.F.R. �� 20.202, 20.204(b).  Except for
appeals withdrawn on the record at a hearing, appeal
withdrawals must be in writing.  38 C.F.R. � 20.204(c).

In the case at hand, the Veteran submitted a July 2005 claim
listing fifteen issues: pyelonephritis, left knee patella
tendonitis, migraines, right "PFS" (patella femoral
syndrome), anemia, GERD, tinea versicolor, pityriasis rosea,
bilateral arthritis shoulder, neck arthritis, uveitis
(bilateral), eczema, hidradenitis, sarcoidosis, and removal
of a toenail.

Following an examination, the RO issued the November 2005
rating decision regarding sixteen disabilities.  This rating
decision denied service connection for pyelonephritis;
granted service connection at a 10 percent evaluation for
left knee patella tendonitis; granted service connection at a
30 percent evaluation for migraine headaches; denied service
connection for right knee retropatellar pain syndrome;
granted service connection for anemia with a noncompensable
evaluation; granted service connection also with a
noncompensable evaluation for GERD; denied service connection
for tinea versicolor; denied service connection for
pityriasis rosea; granted service connection with a 10
percent evaluation for each shoulder for bilateral shoulder
tendonitis, claimed as shoulder arthritis; denied service
connection for neck pain status post motor vehicle accident,
claimed as neck arthritis; denied service connection for
uveitis, bilateral; denied service connection for eczema;
granted service connection for hidradenitis, left axilla,
with a noncompensable evaluation; granted service connection
for sarcoidosis also with a noncompensable rating; granted
service connection for onychomycosis, claimed as removal of a
toenail, with a noncompensable evaluation; and denied service
connection for hypercholesterolemia.

The Veteran's June 2006 notice of disagreement pertained to
all sixteen issues listed in the rating decision.  The
September 2006 statement of the case also pertained to all
sixteen issues on appeal.  The Veteran's September 2006 VA
Form 9, Substantive Appeal, also indicated she was appealing
all issues given in the statement of the case.

By means of a statement submitted to the RO in February 2007,
and largely repeated in an April 2007 statement, the Veteran
indicated that she wished that her appeal be considered only
for the issues of sarcoidosis, "dermatitis fibrotosis," and
uveitis.  Her statement continued by describing symptoms from
which the Veteran suffered, to include a reference to her
armpits.  As the term "dermatitis fibrotosis" does not
appear in the Veteran's medical treatment reports, the RO
interpreted this statement to mean a withdrawal from appeal
all issues other than the sarcoidosis, hidradenitis of the
left axilla, bilateral uveitis, and the skin related
disabilities of tinea versicolor and eczema.  See April 2007
Examination Inquiry.  As noted above, service connection is
in effect for the Veteran's skin and eye disorders, and the
claims for increased ratings for sarcoidosis and hidradenitis
are addressed herein.

The Board finds that the Veteran's April 2007 statement
withdraws from appeal the following issues:  service
connection for pyelonephritis, increased rating for left knee
patella tendonitis, increased rating for migraines, service
connection for right knee retropatellar pain syndrome,
increased rating for anemia and GERD, service connection for
pityriasis rosea, increased rating for bilateral shoulder
tendonitis, service connection for neck pain, service
connection for onychomycosis, and service connection for
hypercholesterolemia.  As the Veteran has withdrawn her
appeal as to those issues, there remain no allegations of
fact or law for appellate consideration.  Accordingly, the
Board does not have jurisdiction to review the appeal on
those issues, and they are dismissed without prejudice.

II. Decision

Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability.  38 U.S.C.A. � 1155; 38
C.F.R. Part 4.  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 required for that rating.  Otherwise, the lower
rating will be assigned.  38 C.F.R. � 4.7.

This appeal arose from a disagreement as to the initial
evaluation that was assigned for hidradenitis, left axilla.
This matter therefore is to be distinguished from one in
which a claim for an increased rating of a disability has
been filed after a grant of service connection.  The United
States Court of Appeals for Veterans Claims (Court) has
observed that in the latter instance, evidence of the present
level of the disability is of primary concern, Fenderson v.
West, 12 Vet. App. 119, 126 (1999) (citing Francisco v.
Brown, 7 Vet. App. 55 (1994)), and that as to the original
assignment of a disability evaluation, VA must address all
evidence that was of record from the date the filing of the
claim on which service connection was granted (or from other
applicable effective date).  See Fenderson, 12 Vet. App. at
126-27.  Accordingly, the evidence pertaining to an original
evaluation might require the issuance of separate, or
"staged," evaluations of the disability based on the facts
shown to exist during the separate periods of time.  Id.

When after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability such doubt will be resolved in favor of
the claimant.  38 C.F.R. � 4.3.

As the Veteran submitted her claim shortly after her
separation from service, a review of her service treatment
records is necessary.  In September 2003 the Veteran sought
treatment for pain under her left arm and reported a new
abscess there.  The examiner prescribed Keflex and
recommended applying heat to the area.  She returned later
that same month and was referred to dermatology.  In October
2003 the Veteran sought treatment and hidradenitis was
diagnosed.  Following an objective examination the examiner
noted in the axilla the enlarged masses appeared to be
ingrown hairs.  After conservative treatment, similar lesions
had disappeared from other parts of the body.  The examiner
prescribed minocin and recommended washing with hibiclens.
The Veteran was released to duty; however another treatment,
a week later the Veteran was placed on a temporary physical
profile for multiple skin abscesses.   There was no further
treatment in service.

Following the Veteran's separation in January 2005, the
Veteran sought treatment again in August 2005 at a non-VA,
service hospital.  The Veteran reported pain was a 3/10,
mild, and under the left arm.  The examiner noted that
earlier that month an abscess, also called a furuncle, had
been opened for drainage.  Now smaller areas were evident
under her left axilla and the examiner expected the Veteran
to respond to additional antibiotics.  A September 2005
treatment note reported the drainage, under the left axilla
was healing well, though a small amount of granulations
remained.

In October 2005 the Veteran was afforded a general VA
examination.  The examiner reported the presence of a scar
under the left armpit.  The length was 1 to 1.5 cm; the scar
was healed and a darker color.  The Veteran complained of
mild discomfort in the scar, at times.  The examiner gave the
diagnosis of hidradenitis, left axilla, status post surgical
treatment with healed scar and prolonged antibiotic therapy,
resolved.

In its November 2005 rating decision, the RO granted service
connection, with a noncompensable evaluation, under
Diagnostic Codes 7899-7805.  See 38 C.F.R. � 4.27 (2007)
(hyphenated diagnostic codes are used when a rating under one
diagnostic code requires use of an additional diagnostic code
to identify the basis for the evaluation assigned; the
additional code is shown after the hyphen; unlisted
disabilities requiring rating by analogy will be coded first
the numbers of the most closely related body part and "99").

The Veteran submitted no other treatment reports regarding
left axilla hidradenitis, private, VA, or non-VA.

In her February 2007 statement regarding her other issues on
appeal, the Veteran stated generally that enlarged lymph
nodes caused discomfort under her armpits.  In May 2007, the
Veteran was afforded a VA skin diseases (other than scars)
examination.  The examiner noted the Veteran's complaint of
having had hidradenitis reoccur under the left axilla twice
since the last VA examination (October 2005).  The Veteran
had used warm wet packs, though there was "sensitivity
pain" at times.  Upon objective examination the examiner
found no lump or mass under the left axilla, which the
examiner found to be nontender.  The diagnosis was left
axilla recurrent hidradenitis, stable.

In her February 2009 testimony, the Veteran stated she was
not receiving any treatment for the service-connected
hidradenitis.  However, the Veteran also stated that someone
recommended she use a special deodorant, apparently available
over-the-counter, because her left armpit would sweat more
than her right.  To further remedy this imbalance, the
Veteran reported wearing extra shirts to catch the sweat.

The Board has carefully reviewed the evidence of record, and
finds that the preponderance of the evidence is against an
initial compensable evaluation for hidradenitis of the left
axilla.

As noted, the Veteran's service-connected hidradenitis, left
axilla, is currently rated noncompensably disabling under the
criteria DC 7899-7805 (2008).  The Veteran's specific
disability is not listed on the Rating Schedule, and the RO
assigned DC 7899-7805 pursuant to 38 C.F.R. � 4.27, which
provides that unlisted disabilities requiring rating by
analogy will be coded as the first two numbers of the most
closely related body part and "99."  See 38 C.F.R. � 4.20
(2007).  The RO determined that the most closely analogous
diagnostic code is 38 C.F.R. � 4.118, DC 7805, for scars,
other.  Under Diagnostic Code 7805, scars may be evaluated on
the limitation of function of the affected part.  Therefore,
the Board will begin its review here.

In this case, there is no evidence of record that the Veteran
has limitation of function associated with her scar.  The
October 2005 VA examiner did not report any limitation of
function and the Veteran has not claimed any.  Thus, the
Board finds that a higher rating under Diagnostic Code 7805
is not warranted for the Veteran's service-connected
disability rated as a scar.  The Board must consider
evaluation of the Veteran's service- connected scar under all
other potentially appropriate diagnostic codes.

In this case, the hidradenitis disability at issue involves
the Veteran's left axilla, not her head, face or neck.  DC
7800 thus does not apply.  Scars, other than of the head,
face, or neck, which are deep or cause limited motion, are to
be rated under DC 7801.  DC 7801 provides that a 10 percent
evaluation is assignable for such scars when the area or
areas exceed 6 square inches (39 sq. cm.).  A 20 percent
evaluation is assignable when the area or areas exceed 12
square inches (77 sq. cm.).  38 C.F.R. � 4.118, DC 7801
(2008).  Scars in widely separated areas, as on two or more
extremities or on anterior and posterior surfaces of
extremities or trunk, will be separately rated and combined
in accordance with � 4.25 of this part.  A deep scar is one
associated with underlying soft tissue damage.  38 C.F.R. �
4.118, DC 7801, Note (1), (2) (2008).

Scars, other than of the head, face, or neck, which are
superficial and do not cause limited motion, are to be rated
under DC 7802.  DC 7802 provides that a 10 percent evaluation
is assignable for area or areas of 144 square inches (929 sq.
cm.) or greater.  38 C.F.R. � 4.118, DC 7802 (2008

Under DC 7803, a 10 percent evaluation is assignable for
scars that are superficial and unstable.  38 C.F.R. � 4.118,
DC 7803 (2008).  An unstable scar is one where, for any
reason, there is frequent loss of covering of skin over the
scar.  A superficial scar is one not associated with
underlying soft tissue damage.  38 C.F.R. � 4.118, DC 7803,
Note (1), (2) (2008).

Under DC 7804, a 10 percent evaluation is assignable for
scars that are superficial and painful on examination.  38
C.F.R. � 4.118, DC 7804 (2008).  A 10 percent evaluation will
be assigned for a scar on the tip of a finger or toe even
though amputation of the part would not warrant a compensable
evaluation.  (See � 4.68 of this part on the amputation
rule.)  38 C.F.R. � 4.118, DC 7804, Note (2) (2008).

Other types of scars are to be rated based on limitation of
function of affected part. 38 C.F.R. � 4.118, DC 7805 (2008).

The Board notes that there is no evidence that the Veteran's
scar is deep or limits her motion to warrant application of
Diagnostic Code 7801 (scars, other than head, face, or neck,
that are deep or that cause limited motion).  The left axilla
scar was described by the October 2005 VA examiner to be 1 by
1.5 cm in length, well-healed, but of a darker color than the
surrounding skin; however, it is not 144 square inches or
greater to warrant application of Diagnostic Code
7802,(scars, other than head, face, or neck that are
superficial and do not cause limitation motion).  There is
also no evidence that the scar is unstable or painful to
warrant application of Diagnostic Code 7803 (superficial,
unstable scars) or Diagnostic Code 7804 (superficial, painful
on examination scars).  The 2007 VA examiner found the
Veteran's left axilla to be objectively nontender.
Therefore, 38 C.F.R. � 4.118, Diagnostic Codes 7800, 7801,
7802, 7803, and 7804 do not assist the Veteran in obtaining a
higher evaluation for her left axilla scar.  The medical
findings do not support a compensable rating for the scars
under the regulations.  The Veteran's scars are not unstable,
painful on examination, equal or greater to 144 square
inches, and are not shown to be deep or cause limited
movement.  See 38 C.F.R. � 4.118, Diagnostic Codes 7801 to
7805 (2008).

The Board also notes that during the course of this appeal,
effective October 23, 2008, VA amended the rating criteria
for evaluating skin disabilities, which include scars.  67
Fed. Reg. 54708, 54712 (Sept. 23, 2008).  These amendments,
which affect some of the aforementioned DCs, apply only to
claims received on or after October 23, 2008, not to the
Veteran's claim in this case.

The Board recognizes that there are situations in which the
application of 38 C.F.R. �� 4.40 or 4.45 is warranted in
order to evaluate the existence of any functional loss due to
pain, or any weakened movement, excess fatigability,
incoordination, or pain on movement of the Veteran's joints.
See DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, in
this case, where the diagnostic code under which the Veteran
is rated, in this case, Diagnostic Codes 7805, is not
predicated on loss of range of motion, �� 4.40 and 4.45 do
not apply.  See Johnson v. Brown, 9 Vet. App. 7(1996).

No rating criteria specifically address hidradenitis by means
of its own diagnostic code.  Again, where the particular
disability for which the Veteran has been service connected
is not listed, it may be rated by analogy to a closely
related disease in which not only the functions affected, but
also the anatomical location and symptomatology are closely
analogous.  See 38 C.F.R. �� 4.20, 4.27.  Diagnostic codes
addressing general skin disabilities provide some guidance in
selecting the proper criteria.  Under the rating criteria,
the rater is directed to rate infections of the skin not
listed elsewhere either according to the criteria for
dermatitis, under Diagnostic Code 7806, or according to the
criteria for scars or disfigurement, under Diagnostic Code
7800 - 7805, depending on the primary disability.

The Board has considered all potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
have been raised by the Veteran or her representative, as
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In this case, the Board finds no provision upon which to
assign a compensable rating for service-connected
hidradenitis for any period of this initial rating claim.
The Board also finds that no other potentially applicable
diagnostic code affords the Veteran a higher evaluation.
Further, the record overall is negative for any opinion or
evidence that the Veteran was disfigured or that she has
scars as a predominate disability.
DC 7820, which governs ratings of infections of the skin not
listed elsewhere (including bacterial, fungal, viral,
treponemal and parasitic diseases).  This DC provides that
such an infection is to be rated as disfigurement of the
head, face or neck (DC 7800), scars (DCs 7801, 7802, 7803,
7804, or 7805), or dermatitis (DC 7806), depending upon the
predominant disability.

DC 7806 provides that a 0 percent evaluation is assignable
for dermatitis with less than 5 percent of the entire body or
less than 5 percent of exposed areas affected, and; no more
than topical therapy required during the past 12-month
period.  A 10 percent evaluation is assignable for dermatitis
with at least 5 percent, but less than 20 percent, of the
entire body, or at least 5 percent, but less than 20 percent,
of exposed areas affected, or; intermittent systemic therapy
such as corticosteroids or other immunosuppressive drugs
required for a total duration of less than six weeks during
the past 12-month period.  A 30 percent evaluation is
assignable for dermatitis with 20 to 40 percent of the entire
body or20 to 40 percent of exposed areas affected, or;
systemic therapy such as corticosteroids or other
immunosuppressive drugs required for a total duration of less
six weeks or more, but not constantly, during the past 12-
month period.  38 C.F.R. � 4.118, DC 7806 (2008).

In sum, during the course of this appeal, the Veteran's
hidradenitis has involved one left armpit, which is usually
unexposed, and has necessitated, according to anecdotal
evidence, the use of an over-the-counter deodorant, not
systemic treatment.  An initial compensable evaluation is
thus not assignable under DCs 7806 and 7820.

The Board notes that there are some disorders of the skin
that have active and inactive stages or are subject to
remission and recurrence.  Where the evaluation of such a
disability that fluctuates in degree of disability is at
issue, an examination of the disability during an active
stage or during an outbreak is required.  Ardison v. Brown, 6
Vet. App. 405 (1994); Bowers v. Derwinski, 2 Vet. App. 675
(1992).  Thus, the frequency, duration, and outbreaks of skin
disease exacerbations must be addressed and the skin disorder
should be considered, whenever possible, at a time when it is
most disabling.

In this case, there are the September and October 2005 non-VA
outpatient records of treatment for the hidradenitis which
report the condition and treatment of an abscess requiring an
incision and drainage, followed by years, 2005 through 2009,
when the Veteran had not sought treatment at all; anecdotal
evidence to two outbreaks, occurring between the 2005 and
2007 VA examinations, that were sufficiently treated with
warm wet packs; and subjective complaints, none apparently
reported to any medical practitioner, of excessive sweating
that responds to an over-the-counter deodorant.  Furthermore,
VA examinations of the skin were conducted in October 2005
and May 2007.  Taking into consideration that there is
significant medical evidence showing that the Veteran's skin
disability was examined during at various times in an effort
to capture the disease at various stages, the Board finds
that the evidence of record is sufficient to rate the
disability under appeal.

The rating schedule is designed to accommodate changes in
condition and the Veteran may be awarded different
evaluations in the future should her disability picture
change.  38 C.F.R. � 4.1.  At present, however, the above
noted evaluation is the most appropriate given the medical
evidence of record.

In view of the Court's holding in Fenderson, the Board has
considered whether the Veteran was entitled to a "staged"
rating for her service-connected disability, as the Court
indicated can be done in this type of case.  However, upon
reviewing the history of the Veteran's disability, the Board
finds that, at no time since service connection has been in
effect has her hidradenitis been more disabling than as
currently rated.

The Board has considered the statements of the Veteran.  The
Veteran is competent as a lay person to report that on which
she has knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470
(1994).  However, the Veteran is not competent to offer
medical opinions regarding her left axilla disability in
relation to the schedular criteria, as there is no evidence
of record that she has specialized medical knowledge.  See
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  To the extent
that she has asserted she warrants more than a noncompensable
evaluation for her left axilla hidradenitis disability, the
objective clinical findings simply do not support her
assertions.

The evidence shows that the Veteran is appropriately rated
under Diagnostic Code 7805, and that the criteria for a
higher or a separate rating under any other DC have not been
met.  The appeal for this matter is denied.

Extraschedular Consideration

Lastly, a determination of whether a claimant is entitled to
an extraschedular rating under 38 C.F.R. � 3.321(b) is a
three-step inquiry.  First, the Board must determine if the
evidence presents such an exceptional disability picture that
the available schedular evaluations for that service-
connected disability are inadequate.  To do this, the Board
must determine if the criteria found in the rating schedule
reasonably describe the claimant's disability level and
symptomatology.  If this is the case, the claimant's
disability picture is contemplated by the rating schedule,
the assigned schedular evaluation is, therefore, adequate,
and no referral for extraschedular consideration is required.
If the schedular evaluation does not contemplate the
claimant's level of disability and symptomatology, the Board
must determine whether the claimant's exceptional disability
picture exhibits other related factors, such as marked
interference with employment and frequent periods of
hospitalization.  If the Board determines that the schedular
evaluation does not contemplate the claimant's level of
disability and symptomatology, and the disability picture
exhibits other related factors such as marked interference
with employment or frequent periods of hospitalization, the
case must be referred for completion of the third step -- to
determine whether, to accord justice, an extraschedular
rating must be assigned.  See Thun v. Peake, 22 Vet. App.
111, 115 (2008)

In this instance, the Veteran's left axilla hidradenitis
symptoms of extra sweating, the need to wear additional
undergarments and the use of special deodorant are
sufficiently accounted for in the noncompensable evaluation
which compensates for the disability.  The Board finds the
Diagnostic Codes adequately address the Veteran's symptoms.
The Veteran has not claimed any hospitalization because of
her left axilla disability.  The Board notes that the
Veteran's statements describing her missing work or leaving
early for medical treatment were attributed to other
disabilities.  The Veteran stated during her testimony that
she was not receiving any medical treatment for her left
axilla disability.  As such, the diagnostic code for the
Veteran's service-connected disability adequately describes
the current disability level and symptomatology and,
therefore, a referral for an extraschedular rating is not
warranted.

III. Duty to Notify and Duty to Assist

Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim.  In the notice, VA will inform the claimant which
information and evidence, if any, that the claimant is to
provide to VA and which information and evidence, if any,
that VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159 (2007);
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006).  The RO provided the appellant
pre-adjudication notice by letter dated in August 2005.
Notice as required by Dingess v. Nicholson, 19 Vet. App. 473
(2006), was provided by letter dated July 2006 and the claims
were readjudicated in the August 2007 rating decision.

In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service connection claim has been more
than substantiated, it has been proven, thereby rendering 38
U.S.C.A. � 5103(a) notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled.  Dingess, 19 Vet. App. at 490; Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the
burden of demonstrating any prejudice from defective notice
with respect to the downstream elements.  Goodwin v. Peake,
22 Vet. App. 128 (2008).  That burden has not been met in
this case.

Nevertheless, the record reflects that the Veteran was
provided a meaningful opportunity to participate effectively
in the processing of her claim such that any notice error did
not affect the essential fairness of the adjudication now on
appeal.  Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007),
rev'd by Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  The
Veteran was notified that her claim was awarded with an
effective date of January 6, 2005, the date after her
separation from service and the noncompensable rating was
assigned.  She was provided notice how to appeal that
decision, and she did so.  She was provided a statement of
the case that advised her of the applicable law and criteria
required for a higher rating and she demonstrated her actual
knowledge of what was required to substantiate a higher
rating in her argument included on her Substantive Appeal.
Although she was not provided pre-adjudicatory notice that
she would be assigned an effective date in accordance with
the facts found as required by Dingess, she was assigned the
date after her separation from service as an effective date,
the earliest permitted by law.  38 U.S.C.A. � 5110(a).

Moreover, the record shows that the appellant was represented
by a Veteran's Service Organization and its counsel
throughout the adjudication of the claims.  Overton v.
Nicholson, 20 Vet. App. 427 (2006).

VA has obtained service treatment records, assisted the
Veteran in obtaining evidence, afforded the Veteran physical
examinations in October 2005 and May 2007, obtained medical
opinions as to the etiology and severity of disabilities, and
afforded the Veteran the opportunity to give testimony before
the Board.  All known and available records relevant to the
issue on appeal (hidradenitis) have been obtained and
associated with the Veteran's claims file; and the Veteran
has not contended otherwise.

VA has substantially complied with the notice and assistance
requirements and the Veteran is not prejudiced by a decision
on the claim at this time.

Given the Veteran's expression of intent to withdraw her
appeal regarding the issues listed above, further discussion
of the impact of the VCAA on those claims is not necessary.

ORDER

An initial compensable evaluation for hidradenitis, left
axilla, is denied.

The appeal as to the issue of service connection for
pyelonephritis is dismissed.

The appeal as to the issue of an increased initial evaluation
in excess of 10 percent for left knee patella tendonitis is
dismissed.

The appeal as to the issue of an increased initial evaluation
in excess of 30 percent for migraine headaches is dismissed.

The appeal as to the issue of service connection for right
knee retropatellar pain syndrome is dismissed.

The appeal as to the issue of a compensable initial
evaluation for anemia is dismissed.

The appeal as to the issue of a compensable initial
evaluation for GERD is dismissed.

The appeal as to the issue of service connection for
pityriasis rosea is dismissed.

The appeal as to the issue of an increased initial evaluation
in excess of 10 percent for bilateral shoulder tendonitis,
claimed as bilateral shoulder arthritis, is dismissed.

The appeal as to the issue of service connection for neck
pain status post motor vehicle accident, claimed as neck
arthritis, is dismissed.

The appeal as to the issue of an initial  compensable
evaluation for onychomycosis, claimed as removal of a
toenail, is dismissed.

The appeal as to the issue of service connection for
hypercholesterolemia is dismissed.

REMAND

Additional development is needed prior to further disposition
of the sarcoidosis initial evaluation claim.

During the course of the Veteran's testimony before the Board
the Veteran complained that the examiner who conducted the
various pulmonary tests appeared to scold the Veteran for not
trying hard enough and appeared to push to Veteran to retest
until certain results were achieved.  Further during the
course of her testimony, the Veteran stated that she has
continued to receive treatment for sarcoidosis from a private
practitioner and that there were additional treatment records
dated after those in the claims file.  It thus appears that
there may be applicable medical treatment records that have
not been associated with the claims folder.  Because VA is on
notice that there may be additional records that may be
applicable to the Veteran's claim and because these records
may be of use in deciding the claim, these records are
relevant and an attempt to obtain them should be made.  38
C.F.R. � 3.159(c)(2) (2008); Bell v. Derwinski, 2 Vet. App.
611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask her to
identify any VA or non-VA records,
specifically with private physician, Dr.
F. Morales after January 2007 or treatment
obtained at Darnall Army Community
Hospital (DACH), Fort Hood, Texas, after
November 2006, that may be available
relating to her service-connected
sarcoidosis disability.  After obtaining
any necessary authorization, obtain all
pertinent clinical records from any VA
medical facility identified by the Veteran
and any other identified pertinent private
or non-VA medical reports.  All efforts to
obtain outstanding medical records should
be fully documented, and if any identified
records are not available, a negative
response should be obtained and the
Veteran should be informed of such so that
she can obtain and submit them.

2.  Afford the Veteran a VA pulmonary
examination for the purpose of
ascertaining the severity of her service-
connected sarcoidosis.  All necessary
tests and studies should be accomplished
and all complaints and clinical
manifestations should be reported in
detail.  The claims folder must be made
available to and reviewed by the examiner
prior to completion of the examination
report, and the examination report should
reflect that the claims folder was
reviewed.

3.  Then, readjudicate the Veteran's claim
for an increased initial evaluation of her
service-connected sarcoidosis disability.
If any decision remains adverse to the
Veteran, provide the Veteran and her
representative with a supplemental
statement of the case.  Allow the
appropriate period for response.  The case
should then be returned to the Board for
further review.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2008).

______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs