Citation Nr: 0810281 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-44 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased (compensable) disability rating for service-connected hemorrhoids. 2. Whether new and material evidence has been submitted which is sufficient to reopen a previously denied claim of entitlement to service connection for hypertension. 3. Entitlement to an increased (compensable) disability rating for service-connected fracture residuals of the right great toe. 4. Entitlement to an increased (compensable) disability rating for mallet deformity of the left fifth toe. 5. Entitlement to service connection for a right knee condition. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION The veteran served on active duty from January 1978 until January 1981. This case comes before the Board of Veterans' Appeals (the Board) on appeal from April 2004, June 2004 and September 2004 decisions of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (the RO). Procedural history In an August 1991 rating decision, the RO granted the veteran's claim of entitlement to service connection for hemorrhoids. A noncompensable disability rating was assigned. Also in the August 1991 rating decision, the veteran's claim of entitlement to service connection for hypertension was denied. The veteran did not appeal. His request to reopen the previously denied claim was denied in March 1994. Again, the veteran did not appeal. In September 2003, the RO received the veteran's claim of entitlement to service connection for a condition of the right great toe and the left fifth toe, as well as his claim of entitlement to an increased disability rating for the service-connected hermorrhoids. The April 2004 rating decision granted the veteran service connection for a right great toe disability and a left fifth toe disability. Noncompensable disability ratings were assigned for each disability. The April 2004 rating decision continued the noncompensable disability rating for the veteran's service-connected hemorrhoids. The veteran disagreed with disability ratings assigned in the April 2004 rating decision and initiated this appeal. The appeal was perfected by the timely submission of the veteran's substantive appeal (VA Form 9) in December 2004. In May 2004, the veteran submitted a request to reopen his previously denied claim of entitlement to service connection for hypertension and also claimed entitlement to service connection for a right knee condition. In June 2004 and September 2004 decisions, the RO denied those claims. The veteran disagreed. He perfected an appeal as to both issues in October 2005. In January 2008, the veteran presented sworn testimony during a personal hearing which was chaired by the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the veteran's VA claims folder. Remanded issues The issues of entitlement to increased disability ratings for fracture residuals of the right great toe and for mallet deformity of the left fifth toe and entitlement to service connection for a right knee condition are addressed in the REMAND portion of this decision below and are REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. Issues not on appeal In a July 2005 rating decision, the RO denied the veteran's claim of entitlement to service connection of post-traumatic stress disorder (PTSD) and service connection of a psychiatric disorder other than PTSD. To the Board's knowledge, the veteran did not file a notice of disagreement as to these denials. The matters are not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. The medical and other evidence of record indicates that the veteran's service-connected hemorrhoids are manifested by discomfort and complaints of occasional rectal bleeding; there is no objective medical evidence of external or internal hemorrhoids, persistent bleeding, anemia related to hemorrhoids, and/or anal fissures. 2. An unappealed March 1994 VA rating decision denied the veteran's claim of entitlement to service connection for hypertension. 3. The evidence submitted by the veteran since March 1994 does not separately or when considered with all the other evidence of record, raise a reasonable probability of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for the service-connected hemorrhoids are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). 2. The March 1994 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 3. New and material evidence not having been submitted, the claim of entitlement to service connection of hypertension is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking an increased disability rating for his service-connected hemorrhoids. He is also seeking service connection for hypertension. The remaining three issues on appeal are being remanded. The Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The VCAA The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). However, the VCAA appears to have left intact the requirement that an appellant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of these issues has proceeded in accordance with the provisions of the law and regulations. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Crucially, the RO advised the veteran of VA's duty to assist him in the development of these claims in a letter dated December 1, 2003 and June 18, 2004. These letters advised the veteran of the provisions relating to the VCAA. Specifically, the veteran was advised in these letters that VA would obtain all evidence kept by the VA and any other Federal agency, including VA facilities and service medical records. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide enough information about the records so that VA can request them from the person or agency that has them. Further, with respect to the veteran's new and material evidence claim, the June 2004 letter advised the veteran of the need to submit new and material evidence. The Board is mindful of the enhanced notice contemplated by the United States Court of Appeals for Veterans Claims (the Court) in its holding in Kent v. Nicholson, 20 Vet.App. 1 (2006). In the June 2004 letter the veteran was provided with the definition of new and material evidence and was specifically advised that additionally evidence would be required which related to the findings of the August 1991 rating decision. Additionally, in a March 1994 letter the veteran was provided with specific notice that evidence of an in-service or presumptive period incurrence of hypertension would be required. Notice as contemplated by the Court in Kent has therefore been supplied to the veteran for the claimed condition. The Board notes that the veteran clearly has actual knowledge of what is required to establish a claim of entitlement to hypertension. He has submitted his National Guard medical records and a May 2005 statement indicating his belief that his service medical records should show in-service treatment for hypertension. In addition, his January 2008 hearing testimony makes it clear that he is aware of the evidence required to establish service connection. See the January 17, 2008 hearing transcript, pages 14 et seq. In the December 2003 and June 2004 letters the veteran was specifically notified to send or describe any additional evidence which he thought would support his claim. See the June 18, 2004 VCAA letter, page 2; see also the December 2003 VCAA letter, pages 2-3. These requests comply with the "give us everything you've got" requirements of 38 C.F.R. § 3.159 (b) in that the veteran was informed that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. In this case, element (1), veteran status, is not at issue as to either claim. With respect to elements (4) degree of disability and element (5), effective date, the veteran received specific notice as to both elements in a March 2006 VCAA letter. See the March 2006 VCAA letter, pages 1-2. Regarding the increased rating claim, (2) and (3) veteran status, current existence of a disability, and relationship are not at issue. As for the new and material evidence claim, the veteran received adequate notice as to both elements in the VCAA notice letters discussed above. In regards to the increased rating claim, the Board has also considered the Court's recent decision in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. See Vazquez- Flores, slip op. at 5-6. The Board finds that the both the December 2003 and the March 2006 letters to the veteran specifically advised him that an increased disability rating would require a showing that the veteran's condition had worsened. In addition, in the March 2006 letter the RO and invited evidence that would demonstrate limitations in the veteran's daily life and work and advised the veteran as to the use of diagnostic codes. See the March 20, 2006 VCAA letter, page 1. The Board notes that the March 2006 VCAA notice did not contain notice of the specific schedular criteria. However, it is apparent from the record that the veteran had actual notice of the applicable criteria. Specifically, the applicable rating criteria for the claimed condition was specifically set out in the December 2004 SOC. The veteran has had nearly four years since the receipt of that notice to submit additional evidence responsive to the criteria. Additionally, the August 2007 VA examination report makes it clear that the veteran was asked to provide information concerning the impact on his life and work as represented by his service-connected disabilities. Finally, the veteran's January 2008 hearing testimony makes it clear that he is aware of the schedular criteria. See the January 17, 2008 hearing transcript, pages 9 et seq. Accordingly, due to the content of the notice given and the veteran's actual knowledge, the Board finds that the veteran has received appropriate VCAA notice for his increased rating claim as contemplated by the Court in Vazquez-Flores. The Board further notes that the veteran's representative has not alleged that the veteran has received inadequate VCAA notice. To the extent that there was inadequate VCAA notice prior to the initial adjudication of the veteran's claims, such has been cured as described above and preceded the September 2007 readjudication of the claim. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. In short, the Board concludes that the notice provisions of the VCAA have been complied with to the extent required under the circumstances presented in this case. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Regarding the veteran's new and material evidence claim, As alluded to above, under the VCAA, VA's statutory duty to assist a claimant in the development of a previous finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the veteran's claim for a benefit under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). Regarding the veteran's increased rating claim, the Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained the veteran's service medical records, National Guard medical records and his VA treatment records. The veteran has identified no other relevant medical treatment. He was provided with a VA compensation and pension (C&P) examination in December 2003 and again in August 2007. The Board acknowledges that at the veteran's August 2007 VA compensation and examination he indicated that he is in receipt of Social Security Administration (SSA) disability benefits. Although the duty to assist normally requires the Board to obtain such records, [see Murinscak, infra], as the veteran's claims have not been reopened, this duty has not attached. Moreover, and crucially, the veteran has not suggested that the SSA records would contain any information which would serve to reopen his claims or which would relate to his claim of entitlement to an increased disability rating for his hemorrhoid condition. The record does not disclose that the veteran's hemorrhoid condition is in any way productive of employment disability such that it would be considered as part of his SSA disability claim. See Brock v. Brown, 10 Vet. App. 155, 161-2 (1997) [VA is not obligated to obtain records which are not pertinent to the issue on appeal]. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran and his representative have been accorded the opportunity to present evidence and argument in support of his claim. As was discussed in the Introduction, the veteran testified at a personal hearing in January 2008. Accordingly, the Board will move on to a decision on the merits. 1. Entitlement to an increased (compensable) disability rating for service-connected hemorrhoids. Pertinent law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Assignment of diagnostic code The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The RO has rated the veteran's disability under Diagnostic Code 7336, which is obviously applicable in the instant case because it pertains specifically to the disability at issue (hemorrhoids) and because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the veteran has not requested that another primary diagnostic code should be used. Accordingly, the Board concludes that the veteran is appropriately rated under Diagnostic Code 7336. Specific rating criteria A noncompensable rating is assigned for hemorrhoids which are mild or moderate. A 10 percent rating is assigned for hemorrhoids, external or internal, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is assigned for hemorrhoids, external or internal, with persistent bleeding and with secondary anemia, or with fissures. See 38 C.F.R. § 4.114, Diagnostic Code 7336 (2007). Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Schedular rating The veteran's hemorrhoids are currently rated noncompensably disabling, which is congruent with mild or moderate hemorrhoids. The word "moderate" is not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2007). The Board observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition (1988), 871. As has been discussed above, where the evidence shows hemorrhoids which are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, a 10 percent disability rating will be assigned. The veteran was thoroughly examined in August 2007. The veteran indicated that his hemorrhoids bothered him only occasionally, during flare-ups. Physical examination was essentially normal. Only an old hemorrhoid (floppy skin tag) was identified externally, and no hemorrhoids were identified internally. The August 2007 VA examination report is congruent with the findings contained in a December 2003 VA examination report. Only external skin tags were identified; these were specifically described as non-thrombosed, without acute tenderness or bleeding. With respect to frequency of recurrences, the veteran testified that flare-ups occurred 3-4 times per year. See the January 2008 hearing transcript, page 13. The Board finds that 3-4 times yearly, or once every 3-4 months, is infrequent. Moreover, there is in fact no objective evidence of such flare-ups. The Board observes that VA outpatient treatment records refer to complaints of hemorrhoids but no significant findings. See a November 7, 2006 report: "Hemorrhoids since 1979 per pt., no blood in stools now." Indeed, during the December 2003 VA examination, the veteran denied any rectal bleeding or thrombosis during the preceding year, and indicated that he used hemorrhoid ointment 1 to 2 times per year. The veteran testified that he could not go to a VA medical facility for treatment of hemorrhoids because of lack of transportation. See the hearing transcript, page 10. However, there are of record many pages of VA outpatient treatment records documenting treatment for other disabilities. It therefore does not appear that the veteran lacks the wherewithal to get to VA medical facilities for treatment of various medical problems. Based on the record as a whole, the Board finds that the veteran's statements as to the severity of his hemorrhoids are outweighed by the largely negative medical evidence. The Board does not doubt that the veteran experiences discomfort with respect to his service-connected disability. However, such symptoms do not allow for an increased disability rating under the applicable diagnostic code. Such symptomatology is contemplated in the noncompensable disability rating assigned for "moderate" hemorrhoids". In short, a preponderance of the evidence does not show hemorrhoids which are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 10 percent disability rating will not be assigned. To warrant a 20 percent disability rating under Diagnostic Code 7336, the competent medical evidence must demonstrate hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. The first two criteria are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. The third criteria is disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. There is no evidence of anal fissures to warrant a 20 percent disability rating under Diagnostic Code 7336. The August 2007 and the December 2003 VA examinations contained specific findings that there were no fissures. No fissures are noted in the veteran's ongoing VA treatment records, to include in the November 2006 rectal examination. In addition, there is no evidence of persistent bleeding with secondary anemia. Bleeding was not demonstrated upon physical examinations in December 2003, November 2006 or August 2007. Indeed, there was no indication of external or internal hemorrhoids during any of these examinations. Additionally, bleeding has been specifically denied by the veteran on VA treatment. See, e.g., a March 2004 VA treatment record. Concerning anemia, the veteran has been diagnosed with anemia. However, the August 2007 VA examiner specifically found that such was not due to hemorrhoids. Additionally, June 2007 VA treatment records indicated that the veteran's anemia, although of unknown origin, may have been due to his severe gingivitis. In any event, the medical evidence of record clearly demonstrates that veteran's hemorrhoids are not productive of secondary anemia. The criteria for entitlement to a 20 percent disability rating thus have not been met or approximated. In short, the objective medical evidence of record indicates that the veteran is not entitled to an increased disability rating under the applicable schedular criteria. Hart considerations In Hart v. Mansfield, No. 05-2424 U.S. Vet. App. (Nov. 19, 2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As was noted in the Introduction above, the veteran's claim for an increased disability rating for his service-connected hemorrhoids was filed in September 2003. Therefore, the relevant time period under consideration is from September 2002 to the present. The veteran's service-connected hemorrhoids had been rated noncompensably disabling from since the date of service connection, June 12, 1991. The question to be answered by the Board, then, is whether any different ratings should be assigned for any period from September 2002 to the present. As discussed above, after a careful review of the record, the Board can find no evidence to support a finding that the veteran's hemorrhoids were more severe than the currently assigned noncompensable rating during the appeal period. The two VA examination reports in 2003 and 2007, discussed above, demonstrate no significant differences in pathology or functional limitations. The evidence further indicates that prior to the December 2003 VA examination, the existence of the excess and irreducible tissue was not documented in the record. Accordingly, there is no basis for awarding a 10 percent or higher rating at any time. Extraschedular consideration According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The RO specifically considered referral for an extraschedular evaluation in the December 2004 Statement of the Case (SOC). Accordingly, the Board will address the possibility of the assignment of an extraschedular rating for the increased disability rating at issue. The Board has been unable to identify an exceptional or unusual disability picture. The record does not show that the veteran has required frequent hospitalizations for his hemorrhoids. Indeed, it does not appear from the record that he has been hospitalized at all for that disability recently. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. Although the veteran has a sporadic work history, the evidence indicates that such is due mainly to psychiatric problems and alcohol abuse; hemorrhoids are not mentioned as a factor. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture (the medical evidence of record, described above, indicates that the hemorrhoids are essentially asymptomatic), or of any other reason why an extraschedular rating should be assigned. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Conclusion For the reasons set out above, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to an increased disability rating for his service-connected hemorrhoids. The benefits sought on appeal are denied. 2. Whether new and material evidence has been submitted which is sufficient to reopen a previously denied claim of entitlement to service connection for hypertension. Pertinent law and regulations Service connection - in general A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to establish service connection for the claimed disorder, 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Hypertension For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 millimeter (mm.) or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2006). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See also the Court's discussion of this subject in Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2007)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the veteran's claim to reopen was initiated in May 2004, the claim will be adjudicated by applying the revised section 3.156. The revised regulation provides that new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, related to an unsubstantiated fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2007). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). Analysis In a March 1994 rating decision, the RO denied the veteran's claim of entitlement to service connection of hypertension. The veteran did not appeal the March 1994 decision. Thus, the RO's decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran now seeks to reopen his claim. At the time of the March 1994 RO denial, the evidence of record included veteran's service medical records and VA outpatient treatment records. This evidence did not include any diagnosis of hypertension in service or within the one year presumptive period after service. Nor did the record include evidence indicating a relationship between the veteran's service and his hypertension. [Hickson elements (2) and (3).] The evidence of record added to the record since the March 1994 rating decision consists of the veteran's current VA treatment records, his National Guard service medical records and the veteran's personal testimony. The question before the Board is whether the additional evidence raises "a reasonable possibility of substantiating the claim." After review of the evidence, the Board concludes that it is clear that it does not. The newly submitted VA treatment records merely demonstrate that the veteran's hypertension continues to exist. Such evidence is not new and material, since the existence of the condition was known in March 1994. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence]. Furthermore, there has been added to the record no competent medical evidence of a nexus between an in-service injury and the current condition. The current treatment records contain no such opinion. With respect to the National Guard records, these records also do not establish that the veteran was diagnosed with hypertension during service or the presumptive period. Specifically, the records contain no reference to hypertension. The veteran's National Guard service records include the January 1981 certificate of acceptance which documented no outstanding health concerns. Accordingly, these records are not new and material evidence. See Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to a claimant is not new and material]. To the extent that the veteran has once again opined that there is a connection between his military service and hypertension, such is duplicative of his contentions in 1994. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, it is now well established that lay persons without medical training, such as the veteran, are not qualified to render medical opinions regarding the etiology of disorders and disabilities. In Moray v. Brown, 5 Vet. App. 211, 214 (1993), the Court specifically stated that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." To the extent that an April 2007 VA treatment record indicates that the veteran's hypertension had its onset in 1979 [i.e., during service], the reference appears to be a bare transcription of the veteran's own assertions. Such is entitled to no more consideration than the veteran's own statements. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ["a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"]; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, new and material evidence has not been received, and the veteran's attempt to reopen the claim fails. In the absence of such evidence, the veteran's claim may not be reopened. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000), [a veteran seeking disability benefits must establish a connection between the veteran's service and the claimed disability]. The benefits sought on appeal remain denied. ORDER Entitlement to an increased disability rating for service- connected hemorrhoids is denied. New and material evidence having not been submitted, the veteran's claim of entitlement to service connection of hypertension is not reopened. The benefit sought on appeal remains denied. REMAND The veteran is also seeking entitlement to increased disability ratings for his service-connected for fracture residuals of the right great toe and mallet deformity of the left fifth toe, as well as entitlement to service connection for a right knee disability. For the reasons set out immediately below, the Board has determined that additional development is required. At the time of the veteran's August 2007 VA examination he indicated that he was in receipt of Social Security Administration (SSA) Disability compensation, due in part to his musculoskeletal complaints. The veteran's SSA records are not of record. Efforts should be made to obtain the veteran's SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) [duty to assist includes obtaining records from SSA and giving appropriate consideration and weight to such evidence]; see also 38 C.F.R. § 3.159(c)(2) (2003) [VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency]. With respect to the right knee condition. The veteran's December 1977 entrance examination indicates that the veteran had previously been rejected for armed forces service due to a knee condition. Since the history of the knee condition was noted upon enlistment examination, the presumption of soundness does not apply. See 38 U.S.C.A. §§ 1111, 1132 (West 2002). If a pre-existing disorder is noted upon entry into service, service connection may still be granted based on aggravation during service of that disorder. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The veteran's service medical records show several instances of treatment for right knee complaints during service. Therefore, the question before the Board is whether the right knee condition was aggravated beyond its normal progression during service. The current record is unclear as to whether or not the veteran suffers from a current right knee disability which is related to his pre-service history of knee injury. An April 2007 VA treatment record indicates that the veteran sought treatment for bilateral knee pain, worse on the right side. No clinical explanation of the pain was offered. To date, the veteran has not been afforded a VA compensation and pension examination which included review of his right knee. For these reasons, the Board has determined that a medical opinion is necessary in order to make a decision on this claim. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED for the following actions: 1. VBA should attempt to obtain copies of SSA disability determination records, including copies of all medical records relied upon in reaching that determination. All efforts in this regard should be documented in the claims folder. 2. VBA must arrange for examination of the veteran and a review of the veteran's claims folder by an appropriately credentialed medical professional. After examination, the examiner should provide an opinion as to whether or not the veteran has any diagnosed disability of the right knee which is related to his military service. The examiner should also offer an opinion as to whether or not any such current knee disability pre- existed service and if so was it aggravated beyond the course of its normal progression due to service. A copy of the examination report and resulting opinion should be associated with the veteran's VA claims folder. 3. Following the completion of the foregoing, and after undertaking any additional evidentiary and/or procedural development which it deems to be necessary, VBA should readjudicate the veteran's claims. If any benefit sought on appeal is denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs