Citation Nr: 0814175 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-10 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for excision, cyst, left upper gum. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hearing loss. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a neck disability. 5. Entitlement to service connection for a left foot condition. 6. Entitlement to service connection for a right hand disability. 7. Entitlement to service connection for a bilateral ankle disability. 8. Entitlement to service connection for an acquired psychiatric disorder. 9. Entitlement to an increased rating for service-connected residuals, right heel injury, currently evaluated as noncompensable (0 percent disabling). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from January 1974 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In his appeal, received in March 2006, the veteran stated that he did not desire to appeal the issues of entitlement to service connection for neuritis (claimed as secondary to rubella), and entitlement to an increased rating for service- connected tinnitus, evaluated as 10 percent disabling. Accordingly, these issues are not before the Board at this time. See 38 C.F.R. § 20.204(b) (2007). The Board has determined that the issues are more accurately characterized as stated on the cover page of this decision. FINDINGS OF FACT 1. In an unappealed June 1976 rating decision, the RO denied claims for service connection for excision, cyst, left upper gum, and hearing loss. 2. The evidence received since the RO's June 1976 decision, which denied service connection for excision, cyst, left upper gum, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. 3. The evidence received since the RO's June 1976 decision, which denied service connection for hearing loss, which was not previously of record, and which is not cumulative of other evidence of record, does raises a reasonable possibility of substantiating the claim. 4. The veteran does not have hearing loss, a low back disability, a neck disability, a left foot condition, a right hand disability, a bilateral ankle disability, or an acquired psychiatric disorder, as the result of injury during his active military service from January 1974 to January 1976. 5. The veteran's residuals, right heel injury, are productive of complaints of pain and stiffness, but not a moderate foot injury, ankylosis, or a moderate limitation of motion. CONCLUSIONS OF LAW 1. The RO's June 1976 decision, which denied service connection for excision, cyst, left upper gum, and hearing loss, became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2005). 2. New and material evidence has not been received since the RO's June 1976 decision, which denied claim for service connection for excision, cyst, left upper gum; the claim for service connection for excision, cyst, left upper gum, is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2005); 38 U.S.C.A. § 3.156 (2007). 3. New and material evidence has been received since the RO's June 1976 decision, which denied claims for service connection for hearing loss; the claim for service connection for hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2005); 38 U.S.C.A. § 3.156 (2007). 4. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 5. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2007). 6. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 7. The criteria for service connection for a left foot condition have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 8. The criteria for service connection for a right hand disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 9. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 10. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 11. The criteria for a compensable rating for service- connected residuals, right heel injury, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5270, 5271, 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that new and material evidence has been submitted to reopen his claims of entitlement to service connection for excision, cyst, left upper gum, and hearing loss. In a decision, dated in June 1976, the RO denied claims for service connection for excision, cyst, left upper gum, and hearing loss. The veteran did not appeal, and the rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In February 2004, the veteran filed to reopen the claims. In July 2004, the RO denied the claims. The veteran's claims to reopen were received at the RO after August 29, 2001. For claims filed on and after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). The evidence received subsequent to the last final decision is presumed credible for purposes of reopening the claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. See Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992); and Robinette v. Brown, 8 Vet. App. 68, 75-76 (1995). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Further, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (2007). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre- service disability underwent an increase in severity during service. Id. at 296; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2007). The most recent and final denial of these claims was in June 1976. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence of record at the time of the RO's June 1976 decision included the veteran's service medical records. An entrance examination report, dated in December 1973, included audiogram test results which showed that he had left ear hearing loss as defined at 38 C.F.R. § 3.385, and that the right ear was within normal limits. See also multiple audiograms, dated in April 1974 and September 1974 (same). A February 1974 report indicates the following: the veteran had an impacted tooth #17 that was not incurred LD (in the line of duty), and which EPTS (existed prior to service); odontoma at the area of tooth #18 (that was not incurred in the line of duty, and which existed prior to service) as well as the area of teeth #9 and #10; he underwent a subtotal odontectomy at #17, with an associated cystectomy at #18, and the #9-10 area. A September 1974 report noted that the veteran had pre- service high frequency hearing loss, AS (left ear), and that he was a flightline worker who had advancing HF (high frequency) HL (hearing loss). The report indicates he was to be provided with hearing protection and to be given an annual checkup. Another September 1974 report noted that the veteran had "substantial hearing loss upon entry into AF (Air Force)," and indicated that he had been a hunter prior to service and did not use ear protection. On examination, he was noted to have scarred drums bilaterally. The veteran's separation examination report, dated in December 1975, showed that his mouth and throat, ears, and drums, were clinically evaluated as normal, and included audiogram test result which showed that he had left ear hearing loss as defined at 38 C.F.R. § 3.385, and that the right ear was within normal limits. The report noted reduced hearing in the left ear between 3,000 and 6,000 Hz, and noted that "gum trouble refers to surgical removal of a cyst from upper left gums in 1974, no comp (complications), no seq (sequalae)," and "cyst on upper left gum 1947 removed" (the date is presumably a typographical error, and should be 1974). An accompanying "report of medical history" showed that the veteran reported a history of hearing loss, severe tooth or gum trouble, and noted that he had "a tumor in my gum as age 18." As for the post-service medical evidence, it consisted of a March 1976 VA examination report, which showed that the veteran reported a loss of hearing, and that in February 1974 a small tumor had been excised from his gum, although he did not know the type of tumor, and did not recall if it had been in the upper or lower gum. The relevant impression was status postoperative excision of small tumor of the gum, no recurrence, no residual. An ENT (ear, nose, and throat) examination report noted complaints of trouble hearing, and ringing in the ears, with diagnoses that included hearing loss, sensorineural, and tumor of mouth, history. Associated audiogram reports, dated in March 1976, showed that he had left ear hearing loss as defined at 38 C.F.R. § 3.385, and that the right ear was within normal limits. Evidence received since the RO's June 1976 rating decision consists of VA and non-VA records, dated between 1979 and 2006. This evidence includes a VA audio examination report, dated in March 2004, which shows that the veteran reported a 27-year history of employment in a plywood mill, and that he used ear protection while at this job except for the first few years. The report shows that he has bilateral hearing loss, as defined at 38 C.F.R. § 3.385. The examiner states, "He stated a hearing test done before he started working at [his employer] indicated he had a high frequency hearing loss. If this is the case, it is reasonable to assume the loss was service connected." The examiner indicates that the veteran's hearing loss is "consistent with acoustic trauma," and that "no prior hearing tests were available." This evidence that was not of record at the time of the RO's June 1976 decision is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. With regard to the claim for hearing loss, the Board finds that this evidence is material. The March 2004 VA examination report shows that the veteran has right ear hearing loss. In addition, although the examiner's opinion suffers from defects, discussed supra, it is competent evidence which associates hearing loss with the veteran's service. Accordingly, the claim for hearing loss is reopened. With regard to the claim for excision, cyst, left upper gum, the Board finds that this evidence is not material. There is no competent evidence to show that he currently has residuals from his excision of his upper left gum. The evidentiary defect therefore has not been cured by the evidence received since that decision. Finally, although the Board has considered the veteran's statements, lay assertions of medical causation cannot suffice as new and material evidence to reopen a claim. Hickson v. West, 11 Vet. App. 374 (1998). The Board therefore finds that the submitted evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The claim is therefore not reopened. The veteran asserts that he is entitled to service connection for hearing loss, a low back disability, a neck disability, a left foot condition, a right hand disability, a bilateral ankle disability, and an acquired psychiatric disorder. The veteran's service medical records show that in August 1974, he was treated for a three-week history of an injured right hand. An X-ray revealed an old non-displaced fracture of the fourth finger (emphasis in original). The report indicates that the finger was put into a splint. The veteran's separation examination report, dated in December 1975, shows that his spine, "head, face, neck, and scalp," lower extremities, upper extremities, and psychiatric condition, were all clinically evaluated as normal. This report contains notations of "no obvious psychiatric findings," a "broken third finger right hand 1974," "recent weight loss of 25 pounds in 4 months due to depression," "frequent trouble sleeping for 6 months, no treatment, recurring problem," and "Depression for five months, now is not depressed because of discharge from AF, no treatment." In an accompanying "report of medical history," the veteran indicated that he had a history of broken bones, recent gain or loss of weight, foot trouble, frequent trouble sleeping, and "depression or excessive worry," and he denied having recurrent back pain, nervous trouble of any sort. The post-service medical evidence consists of VA and non-VA reports, dated between 1976 and 2006. This evidence includes a March 1976 VA examination report, which does not contain any relevant complaints or findings. Reports from Mercy Medical Center, dated in April 1979, show that the veteran reported that he had experienced low back pain after lifting a heavy saw blade at his job about 21/2 years before, and that since that time he had had ongoing symptoms. The impression was degenerative disc disease, rule out HNP (herniated nucleus pulposus). The reports show that he underwent a "huge midline disc extrusion at the L5-S1 interspace." The next medical evidence is dated in 2004, and is in the form a VA progress notes, and VA examination reports. The progress notes contain notations of chronic back pain, and chronic ankle pain A VA joints examination report, dated in March 2004, shows that the veteran reported that he had retired at age 49 due to muscular dystrophy. The diagnosis was "mostly normal bilateral ankle examination with the exception of subjective pain with a recent diagnosis of muscular dystrophy." A VA neurological examination report, dated in June 2004, shows that the veteran reported that he injured his back at work about nine months after separation from service. He reported a history of multiple lumbar surgeries, and cervical surgeries, as well as chronic low back pain. The report further notes that he was currently disabled secondary to muscle weakness and dystrophy problems, and that his neuropathies are clearly secondary to back and neck problems. A VA psychiatric examination report, dated in July 2004, indicates that the veteran asserted that he has depression due to his service-connected right heel disability. However, the examiner noted, "I asked the vet about his current symptoms of depression." To which the veteran replied, "I don't really think I have any depression. I have a hard time sleeping because of the ringing in my ears." The veteran further stated that he had not had any treatment for it, "Because I don't let it bother me," and that "On inquiry, he also said that he has never been much of a sleeper anyway." The examiner stated that he asked the veteran's wife if she thought he was depressed, and that, "She believes he is not depressed." The examiner further stated that he asked the veteran about the notations of depression in his service medical records, and that he stated it was a severe case of homesickness that precipitated his depression. The examiner indicated that the examination was not continued, as there was no evidence of depression. Such a finding provides the Board what can only be described as highly probative evidence against this claim. With regard to the claim for hearing loss, the Board first notes that the veteran has reported a 27-year history of employment in a plywood mill. Such a fact clearly provides evidence against his claim. With regard to the right ear, the March 2004 VA examination report shows that the veteran has right ear hearing loss. However, this evidence comes about 27 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the examiner stated that "it is reasonable to assume the loss was service connected," this opinion is conditional, and indicates that it was not based on a review of the veteran's claims file. Specifically, it states that it is based on the speculation that "a hearing test done before he started working at [his employer] indicated he had a high frequency hearing loss." However, this assumption has no factual basis. The only other audiogram of record following service is the March 1976 VA audiogram, which does not show that the veteran had right ear hearing loss. Therefore, this opinion is based on an inherently untrue premise, it is afforded no probative value. Duran; Justus; Robinette. Finally, there is no competent evidence to show that right ear sensorineural hearing loss was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. With regard to the left ear, the March 2004 VA examiner does not discuss the fact that left ear hearing loss was shown prior to service, and his opinion does not address the issue of aggravation of such left ear hearing loss, which is the only possible basis for a grant of service connection. See 38 C.F.R. § 3.306(a). Therefore, this opinion is afforded no probative value. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). There is no competent evidence to show that left ear hearing loss was aggravated by service. In this case, the Board finds that the service and post- service medical records, along with the veteran's extensive history of work in mill, provides what can only be described as overwhelming evidence against this claim, clearly indicating a problem with no connected with service that did not begin (regarding the right ear) until decades after service. The evidence in the claims file provides so much evidence against this claim that an additional VA examination is simply not warranted as there is no basis to grant this claim based on a post-service evaluation of the veteran hearing so many years after service. In this regard, it is not simply the lack of medical evidence that supports these claims, or the medical evidence against these claims, but some of the veteran's own statements. For example, the veteran claims service connection for depression with the Board in March 2006, but he has denied having this problem in a VA examination in July 2004. Other examples of the veteran's inaccurate statements will be cited below. Simply stated, the Board finds that the veteran is not credible, that his statements to the VA provide evidence against all claims, and that further medical evaluations of his claims are not warranted on this basis. Accordingly, the Board finds that the preponderance of the evidence is against the claim for hearing loss, and that the claim must be denied. With regard to the claims for a left foot condition, a neck condition, a right foot disability, a bilateral ankle disability, and an acquired psychiatric disorder, under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In this case, the veteran's service medical reports do not show treatment for, or a diagnosis of, a left foot condition, a neck condition, or a bilateral ankle disability. With regard to the claim for a right hand disability, an August 1974 X-ray revealed an old non-displaced fracture of the fourth finger, and it appears that the finger was splinted. The veteran's separation examination report, dated in December 1975, shows that his spine, "head, face, neck, and scalp," lower extremities, upper extremities, and psychiatric condition, were all clinically evaluated as normal. This report contains notations of a "broken third finger right hand 1974" (it would appear that this was a reference, in fact, to the fourth right finger). The report also contains notations of depression, and frequent trouble sleeping, however, the report notes "no obvious psychiatric findings." Given the foregoing, chronic conditions are not shown during service. See 38 C.F.R. § 3.303. In addition, the post-service medical evidence does not contain any competent evidence to show that the veteran has any of these claimed conditions. With regard to the claim for depression, the examiner indicated that the veteran's inservice notations of depression were related to homesickness, and that he does not currently have depression. With regard to the claim for a neck disability, although it appears that the veteran reported a history of cervical spine surgeries, no such reports are of record, and no health care providers have been identified, despite VA's sending him duty to assist letters in March and April of 2004. The June 2004 VA neurological examination report indicates that the veteran has neuropathies that are secondary to back and neck problems. However, even assuming, arguendo, that a neck disability was shown, the Board notes that there is no competent evidence to show that the veteran has any of the claimed disabilities that are related to his service. Accordingly, the claims must be denied. With regard to the claim for a low back disability, the veteran's service medical records do not show that the veteran ever treated for low back symptoms. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. Furthermore, the first evidence of a low back disorder is found, at the earliest, in the aforementioned April 1979 reports from Mercy Medical Center. Therefore, the earliest medical evidence of a low back condition comes over three years after separation from active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, these reports indicate that the veteran had sustained a post-service low back injury at work about 21/2 years before, specifically, he reported that he had experienced low back pain after lifting a heavy saw blade at his job. Therefore, there is evidence of an intercurrent injury. The fact that the veteran would file such a claim with the VA when there is clear evidence of a post-service back injury only provides more evidence against his credibility. In addition, there is no competent evidence showing that the veteran has a low back condition that is related to his service. Finally, there is no medical evidence to show that arthritis of the low back was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, these claims are based on the contentions that a low back disability, a neck disability, a left foot condition, a right hand disability, a bilateral ankle disability, and an acquired psychiatric disorder, are related to service that ended many years ago, in 1976. These assertions are not contentions capable of lay diagnosis. See Espiritu; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, the veteran's statements have been found to be not credible, based on facts cited above. In this case, the service medical records, indicating no treatment for the claimed disorders in service (other then the right hand), in conjunction with the post-service medical record, indicating that the veteran does not have the claimed conditions (other than a low back disability), and that the veteran's low back disability began several years after service (and an on-the-job post-service injury), outweigh the veteran's contention that the claimed disorders are related to his service. In reaching these decisions, the Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran argues that he is entitled to an increased rating for his service-connected residuals of a right heel injury. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The RO has evaluated the veteran's service-connected residuals, right heel injury, as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5284. 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"). This hyphenated diagnostic code may be read to indicate that an injury to the skeletal system is the service-connected disorder, and it is rated as if the residual condition is an injury to the foot under DC 5284. Under 38 C.F.R. § 4.71a, DC 5284, a moderate foot injury warrants a 10 percent disability evaluation. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal dorsiflexion of the ankle is from 0 to 20 degrees. Normal plantar flexion of the ankle is from 0 to 45 degrees. The only relevant medical evidence is a VA joints examination report, dated in March 2004, which shows that the veteran reported flare-ups of right heel pain and stiffness every two to three months, lasting two to three days. On examination, the heels were normally proportioned. There was no calcaneal prominence or deformity suggesting an old fracture or talipes deformity. Limb posture revealed no genu valgus or genu varus deformity. There was no plantigrade foot, or pars planus. Arches were normal appearing. Heel walk and toe walk were done with some balance difficulties. Sensation was "100%" intact. Gait was somewhat disruptive because of muscular dystrophy but is functional without limping or hang time. Plantar flexion was to 20 degrees, and dorsiflexion was to 90 degrees. Repetitive motion did not reveal much distress, stiffness or pain, incoordination, or fatigue of any consequence. The diagnosis was "mostly normal bilateral ankle examination with the exception of subjective pain with a recent diagnosis of muscular dystrophy." An accompanying X-ray report for the right ankle notes a small calcific density just dorsal to the distal talus, which has smooth margins and appears old, suspected to be from an old injury, and contains an impression of "no specific abnormality is seen to indicate the cause for the patient's symptoms." In this case, the Board has determined that the findings in the relevant evidence are insufficient to show that he has a moderate foot injury. Specifically, the right ankle had plantar flexion to 20 degrees, and although the finding of dorsiflexion to 90 degrees would appear to be a typographical error, as it is far in excess of the standard range of motion, see Plate II, there is no indication of a limitation of dorsiflexion. In addition, there are no findings representative of a moderately severe foot injury, and the diagnosis noted that it was a "mostly normal bilateral ankle examination." The Board therefore finds that the criteria for a compensable rating under Diagnostic Code 5284 have not been met, and that the claim must be denied. The Board has also looked at other diagnostic codes for rating the right ankle. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, under 38 C.F.R. § 4.71a, DC 5270, a 20 percent rating is warranted for ankylosis of the ankle, when shown to specified degrees and position. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under DC 5271, a 10 percent rating is warranted for a moderate limitation of motion. In this case, the ranges of motion in the VA examination report have been discussed, and they do not show ankylosis of the right ankle, or a moderate limitation of motion. Accordingly, the evidence does not show that the veteran has ankylosis of the right ankle, or a moderate limitation of right ankle motion, and a higher rating under DC 5270 or DC 5271 is not warranted. In deciding the veteran's increased evaluation claim, the Board has considered the determination in Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the veteran is not entitled to additional increased compensation at any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the veteran had a worsening of the disability in issue, such that an increased evaluation is warranted. The Duty to Assist The Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). VA has made all reasonable efforts to assist the veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed the government's duties to assist him. In letters, dated in March and April of 2004, the veteran was notified of the information and evidence needed to substantiate and complete the claims (except as to the claim for a bilateral ankle condition). The VCAA notices complied with the requirement that the notice must precede the adjudication. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006). With regard to the claim for a bilateral ankle condition, the veteran was notified of the information and evidence needed to substantiate and complete the claim in a letter, dated in March 2006. However, any defect with respect to the timing of the VCAA notice in this case was nonprejudicial. There is no indication that the outcome of the claim has been affected, as all evidence received has been considered by the RO. The veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim, as he has been afforded the opportunity to submit additional argument and evidence, which he has done. For these reasons, the timing of the VCAA notice was not prejudicial. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of this appeal, the Court further redefined the requirements of the VCAA to include notice that a disability rating and an effective date for award of benefits would be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No further notice is needed as to any disability rating or effective date matters. As the claims have been denied, any questions as to the disability rating or the appropriate effective date to be assigned are moot. Therefore, VA's duty to notify the appellant has been satisfied, and no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court stated that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. A review of the March 2004 VCAA notice shows that the veteran was notified that his claim for service connection for a cyst on the jaw had previously been denied in June 1976. It further informed the veteran of the criteria for reopening the claim, as well as the criteria for service connection, including evidence of a current disability, as well as medical evidence showing that the claimed condition was incurred in service. In summary, the veteran has been provided with adequate notice of what constitutes new and material evidence to reopen his claim for service connection. Id. The Board further finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the veteran's claims file. The RO has obtained the veteran's service medical records, as well as VA and non-VA medical records. With regard to the claim for excision, cyst, left upper gum, as the Board has determined that new and material evidence has not been presented, a remand for an examination and/or an etiological opinion is not required to decide the claim. See 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2005). With regard to the claims for an acquired psychiatric disorder, and a bilateral ankle disability, the veteran has been afforded examinations, and as the Board has determined that the veteran does not have these claimed conditions, etiological opinions are not required. With regard to the claim for hearing loss, the veteran has been afforded an examination, and an etiological opinion was obtained, however, the Board has determined that the preponderance of the evidence is against the claim, for reasons noted above. With regard to the claims for a low back disability, a neck disability, a left foot condition, and a right hand disability, the veteran has not been afforded examinations, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, the service medical records do not show that the veteran was treated for any relevant symptoms during service, with the exception of a right fourth finger injury, and his spine, and upper and lower extremities, were clinically evaluated as normal upon separation from service. The earliest medical evidence of a low back disability comes about three years after separation from active duty service, and there is evidence of a post-service back injury, and there is no competent evidence to show that the veteran has any of the claimed conditions (other than a low back disability), or that any of the claimed conditions are related to his service. Given the foregoing, the Board finds that the standards of McLendon have not been met. See also 38 C.F.R. § 3.159(c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Simply stated, the Board finds that the service and post service medical record provides evidence against these claims. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has carefully considered the critical issue of whether more VA examinations in this unusual case are required. However, due to the critical issue of the veteran's creditability being in question, the Board finds that further evaluations serve no constructive purpose at this time. The veteran's statements, his many claims based on no supporting evidence (and in many cases, notwithstanding significant negative evidence that rebuts the claims, including his own prior statements to health care providers), and the record as a whole lead to the conclusion that the veteran is not an accurate historian and that further examinations and etiology opinions that would be based on the veteran's statements can not be used to determine if a current disability is related to service more than 30 years ago. The Board finds that there is sufficient competent medical evidence on file for the VA to make a decision on the claims at this time. The VCAA notices did not discuss the criteria for increased rating for the right heel, thus, the VCAA duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any VCAA notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Id., Vazquez-Flores, slip op. at 12. Specifically, the February 2006 statement of the case advised the veteran of the relevant criteria for an increased rating. In addition, as VA has obtained all relevant evidence, as discussed above, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence not having been submitted, service connection for excision, cyst, left upper gum is denied. New and material evidence having been submitted, the claim for service connection for hearing loss is reopened. Service connection for hearing loss is denied. Service connection for a low back disability is denied. Service connection for a neck disability is denied. Service connection for a left foot condition is denied. Service connection for a right hand disability is denied. Service connection for a bilateral ankle disability is denied. Service connection for an acquired psychiatric disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs