Citation Nr: 0816970 Decision Date: 05/23/08 Archive Date: 06/04/08 DOCKET NO. 01-05 252A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a right foot injury. 2. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a left foot injury. 3. Entitlement to service connection for a skin rash of the right index finger. 4. Entitlement to service connection for asbestosis due to asbestos exposure. 5. Entitlement to service connection for diabetes mellitus to include as due to herbicide exposure. 6. Entitlement to service connection for post-traumatic stress disorder (PTSD). 7. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 8. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 9. Entitlement to service connection for an eye disability as secondary to diabetes mellitus. 10. Entitlement to service connection for emphysema. 11. Entitlement to an initial disability rating greater than 10 percent for degenerative joint disease of the right knee as secondary to service-connected degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from March 1970 to March 1972, from December 1990 to October 1991, and additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which essentially reopened and denied, in pertinent part, the veteran's previously denied claims of service connection for a bilateral foot injury and also denied the veteran's claim of service connection for a skin rash of the right index finger. This decision was issued to the veteran and his service representative in September 2000. The veteran disagreed with this decision later in September 2000. He perfected a timely appeal in June 2001. The Board observes that, in a May 1996 rating decision, the RO essentially reopened and denied, in pertinent part, the veteran's claim of service connection for bilateral feet injuries. Although the veteran disagreed with this decision later in May 1996, he did not perfect a timely appeal; thus, the May 1996 rating decision became final. See 38 U.S.C.A. § 7104 (West 2002). The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, although the RO has reviewed the veteran's service connection claims for residuals of a right foot injury and for residuals of a left foot injury on a de novo basis, these issues are as stated on the title page. Regardless of the RO's reopening of the claims for service connection for residuals of a right foot injury and for residuals of a left foot injury, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened, regardless of the RO's finding. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). This matter also is on appeal of a November 2002 rating decision which denied the veteran's claims of service connection for diabetes mellitus and for PTSD. The veteran disagreed with this decision later in November 2002. He perfected a timely appeal in August 2003. In a September 2004 rating decision, the RO denied claims of service connection for peripheral neuropathy of the right lower extremity and of the left lower extremity, for an eye disability as secondary to diabetes mellitus, and for emphysema as due to exposure to smoke from oil fires and sandstorms (characterized as residuals of smoke from oil fires and sandstorms). The veteran disagreed with this decision in October 2004. He perfected a timely appeal in May 2006. In a September 2006 rating decision, the RO granted service connection for degenerative joint disease of the left knee and assigned a 10 percent rating effective May 18, 2000. There is no subsequent correspondence from the veteran expressing disagreement with the rating or effective date assigned. Accordingly an issue relating to degenerative joint disease of the left knee is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). In a May 2007 rating decision, the RO granted, in pertinent part, the veteran's claim of service connection for degenerative joint disease of the right knee and assigned a 10 percent rating effective May 18, 2000. The veteran disagreed with this decision in July 2007. An RO hearing was held on all of the veteran's claims in October 2007. He perfected a timely appeal on his higher initial rating claim for degenerative joint disease of the right knee in December 2007. In May 2007, the veteran also filed a claim of service connection for sleep apnea. To date, however, the RO has not adjudicated this claim. Accordingly, a claim of service connection for sleep apnea is referred back to the RO for adjudication. With respect to the veteran's claim of service connection for diabetes mellitus to include as due to herbicide exposure, peripheral neuropathy of the right and left lower extremities, and eye disability, the Board notes that the United States Court of Appeals for Veterans Claims (Veterans Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), reversing a Board decision which denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagreed with Haas and appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit). To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Recently, the Federal Circuit reversed the Veterans Court's decision in Haas and found that VA's requirement that a claimant have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure was a permissible interpretation of the governing statute and its implementing regulation. Haas v. Peake, No. 2007-7037 (Fed. Cir. May 8, 2008). VA's Office of General Counsel advised the Board that, because the Veterans Court concluded in Ribaudo v. Nicholson, 21 Vet. App. 137, 146-47 (2007), all claims at VA subject to the original Haas stay will remain stayed until mandate issues in the Federal Circuit's decision in Haas, such claims should not be adjudicated until mandate issues at the Federal Circuit. Given the foregoing, the veteran's claims of service connection for diabetes mellitus to include as due to herbicide exposure, peripheral neuropathy of the lower extremities, and eye disability are stayed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In a May 1996 rating decision, the RO denied, in pertinent part, the veteran's claim of service connection for residuals of bilateral feet injuries; although the veteran disagreed with this decision, no appeal was perfected. 3. New and material evidence has not been received since May 1996 in support of the veteran's claim of service connection for residuals of a right foot injury. 4. New and material evidence has not been received since May 1996 in support of the veteran's claim of service connection for residuals of a left foot injury. 5. The veteran's service personnel records show service in Southwest Asia during the Persian Gulf War. 6. The veteran's claimed asbestosis is not related to active service. 7. The veteran's skin rash of the right index finger is not related to active service. 8. The veteran's claimed in-service stressor is not capable of corroboration. 9. There is no diagnosis of PTSD based on a corroborated in- service stressor. 10. The veteran's claimed emphysema is not related to active service. 11. The veteran's degenerative joint disease of the right knee is not manifested by flexion limited to less than 45 degrees. CONCLUSIONS OF LAW 1. The May 1996 rating decision, which denied the veteran's claim of service connection for residuals of bilateral feet injuries, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.104 (2007). 2. Evidence received since the May 1996 RO decision in support of the claim of service connection for residuals of a right foot injury is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). 3. Evidence received since the May 1996 RO decision in support of the claim of service connection for residuals of a left foot injury is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). 4. Asbestosis was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 5. A skin rash of the right index finger was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 6. PTSD was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 7. Emphysema was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 8. The criteria for an initial rating greater than 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.71a, Diagnostic Code (DC) 5010-5260 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in May and July 2003, June 2004, July 2005, and in November 2006, VA notified the veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the veteran to submit medical evidence relating his disabilities to active service and/or showing that his service-connected right knee disability had worsened and noted other types of evidence the veteran could submit in support of his claims. The veteran was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The July 2005 letter also defined new and material evidence, advised the veteran of the reasons for the prior denial of the claims of service connection, and noted the evidence needed to substantiate the underlying claims. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). As will be explained below in greater detail, the evidence submitted since the last final denial is not new and material for purposes of reopening the claims of service connection for residuals of a right foot injury and for residuals of a left foot injury. The evidence also does not support granting service connection for any of the veteran's disabilities. Thus, any failure to notify and/or develop these claims under the VCAA cannot be considered prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additional notice of the five elements of a service- connection claim was provided in November 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In response to all of this notice, the veteran informed VA in December 2006 that he had no further information or evidence to submit in support of his claims. Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although complete content-complying VCAA notice was not provided prior to the initial RO decision denying the benefits sought on appeal, all of the veteran's claims were readjudicated in a Supplemental Statement of the Case issued in October 2007 after all VCAA notice had been provided. Thus, there has been no prejudice to the appellant and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The veteran's higher initial rating for degenerative joint disease of the right knee is a "downstream" element of the RO's grant of service connection for degenerative joint disease of the right knee in the currently appealed rating decision issued in May 2007. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8- 2003 (Dec. 22, 2003). For an increased compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). As noted above, in May and July 2003, June 2004, July 2005, and in November 2006, VA notified the veteran of the information and evidence needed to substantiate and complete this claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the May 2007 rating decision was fully favorable to the veteran on the issue of service connection for degenerative joint disease of the right knee, and because the veteran's higher initial rating claim for degenerative joint disease of the right knee is being denied in this decision, the Board finds no prejudice to the veteran in proceeding with the present decision and any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the Veterans Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board notes that the Veterans Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) clarified VA's notice obligations in increased rating claims. The appeal for a higher initial rating for degenerative joint disease of the right knee originates, however, from the grant of service connection for this disability. Consequently, Vazquez-Flores is inapplicable. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the RO. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. VA has attempted to corroborate the veteran's claimed in-service stressors. The veteran has asserted that his in-service stressor occurred when he came under Iraqi SCUD missile attacks while on active service in Saudi Arabia during the Persian Gulf War. In February 2007, the RO formally determined that the information required to corroborate the veteran's claimed in-service stressor was insufficient to send to the Joint Services Records Research Center (JSRRC) (formerly the Center for Unit Records Research) in order for JSRRC to attempt corroboration of the claimed in-service events. Service connection for PTSD cannot be granted in the absence of a corroborated in-service stressor and an after-the-fact medical opinion cannot serve as the basis for corroboration of an in-service stressor. See Moreau v. Brown, 9 Vet. App. 389 (1996). As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has provided the veteran with examinations addressing the contended causal relationships between his skin rash of the right index finger, and his claimed asbestosis. VA also has provided the veteran with examinations to determine the current nature and severity of his service-connected degenerative joint disease of the right knee. The Board observes that, because there is no evidence of treatment or complaints of emphysema during or after active service, additional examinations are not required. In summary, VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. In a May 1996 rating decision, the RO essentially reopened and denied the veteran's claim of service connection for bilateral foot injuries (characterized as feet injury). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2007). The veteran disagreed with this decision later in May 1996; in response, the RO issued a Statement of the Case to the veteran and his service representative in July 1996. Because the veteran did not perfect a timely appeal, the May 1996 rating decision became final. The claims of entitlement to service connection for residuals of a right foot injury and for residuals of a left foot injury may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his previously denied service connection claim for bilateral feet injuries, on a VA Form 21-4138 that was received at the RO on May 18, 2000. New and material evidence is defined by regulation, see 38 C.F.R. § 3.156, which VA amended in 2001. See 66 Fed. Reg. 45620- 45632 (August 29, 2001). The amended version of 38 C.F.R. § 3.156(a), however, is only applicable to claims filed on or after August 29, 2001. Because the veteran filed this application to reopen his claims of service connection for residuals of a right foot injury and for residuals of a left foot injury, on May 18, 2000, the earlier version of 38 C.F.R. § 3.156(a) is applicable to this case. Under the applicable provisions, new and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a) (2001). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the veteran's application to reopen claims of service connection for residuals of a right foot injury and for residuals of a left foot injury, the evidence before VA at the time of the prior final rating decision in May 1996 consisted of the veteran's service medical records, service personnel records, and VA treatment records. In the narrative for this rating decision, the RO determined that there was no evidence in the veteran's service medical records of any injury to either of his feet. The RO also determined that the recent diagnosis of left foot pain secondary to degenerative joint disease also was not related to active service. Thus, the reopened claim of service connection for a feet injury was denied. The newly submitted evidence includes additional VA treatment records and the veteran's lay statements. The newly submitted VA treatment records show that, on VA examination in September 2001, the veteran complained of pain and swelling in his feet since active service in the Persian Gulf War. The veteran reported that he walked about a mile every day before experiencing pain. His feet became painful if standing or walking for prolonged periods. Going up and down a ladder was "okay" for him. He usually drove with his shoes off. Physical examination showed no edema or calf tenderness in the extremities and normal skin in the feet. X-rays of the feet showed bilateral calcaneal spurs. The impressions included arthralgias of the feet due to bilateral calcaneal spurs. On VA examination in July 2004, the veteran complained of bilateral feet problems. He walked slowly with the help of a walking cane. He recently developed an infection of the big toe and was being treated with oral antibiotics for this infection. The VA examiner reviewed the veteran's claims file, including his service medical records. Physical examination of the veteran's feet showed no feeling or sensation in the feet, no redness, no swelling, and "not much pain." The veteran had been using diabetic shoes on both feet, normal skin on the left foot with no skin breakdown, normal bilateral toenails, difficulty in standing and walking due to pain and discomfort of the right big toe, normal movements in both feet, no evidence of edema in either foot, no abnormal weight bearing, no vascular changes other than the right big toe infection. X-rays of the feet showed small bilateral calcaneal spurs. The VA examiner opined that the veteran's bilateral foot pain was more likely than not related to his diabetic neuropathy. The impressions included a hammer toe deformity of the bilateral second, third, and fourth toes of the feet. With respect to the veteran's application to reopen claims of service connection for residuals of a right foot injury and for residuals of a left foot injury, the Board observes that the evidence that was of record in May 1996 showed post- service treatment for bilateral foot problems (diagnosed as left foot pain secondary to degenerative joint disease). The newly submitted evidence also shows continuing post-service treatment for bilateral foot problems (variously diagnosed as arthralgias of the feet due to bilateral calcaneal spurs and a hammer toe deformity of the bilateral second, third, and fourth toes of the feet). The newly submitted evidence, however, does not contain objective medical evidence relating either the veteran's residuals of a right foot injury or his residuals of a left foot injury to active service. The Board finds that the newly submitted evidence does not bear directly and substantially upon the specific matter under consideration, is either cumulative or redundant of evidence previously submitted, and by itself or in connection with the evidence previously assembled is not so significant that it must be considered in order to decide fairly the merits of the claims of service connection for residuals of a right foot injury and for residuals of a left foot injury. Accordingly, although new, the evidence received since May 1996 is not material to the issue of whether the veteran's bilateral foot disability is related to active service. Thus, the claims of service connection for residuals of a right foot injury and for residuals of a left foot injury are not reopened. The veteran also contends that he incurred asbestosis as a result of in-service asbestos exposure, and that his skin rash of the right index finger, PTSD, and emphysema are related to active service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). The Board observes that, although there are no statutes or regulations specifically addressing asbestos exposure and service connection for asbestos-related diseases, VA issued a circular in 1988 on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) ("DVB Circular"). The information and instructions contained in the DVB Circular subsequently were included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure, as well as with indirect exposure to a "bystander." M21-1, Part VI, 7.21(b)(2), p. 7-IV-3. Also of significance is that the time length of exposure is not material, as individuals with relatively brief exposures of less than one month can develop asbestos- related disorders. Id. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21- 1, Part VI, 7.21(a)(1). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A review of the veteran's service medical records indicates that, at an enlistment physical examination in February 1970, the veteran denied any relevant medical history. Clinical evaluation was normal. A chest x-ray was normal. The veteran was not treated for any of his claimed disabilities during his first period of active service. At a separation physical examination in March 1972, clinical evaluation was normal. A chest x-ray was negative. A review of the veteran's service medical records from his Reserve service shows that, at an enlistment physical examination in February 1976, the veteran denied any relevant medical history and clinical evaluation was normal. On periodic physical examination in January 1979, the veteran's history and clinical evaluation were unchanged. A chest x- ray was negative. The veteran's history and clinical evaluation were unchanged on subsequent physical examinations in March 1983 and in March 1988. The veteran was not treated for any of his claimed disabilities during his second period of active service. At his separation physical examination in August 1991, clinical evaluation was normal with the exception of several skin tags. The veteran's service personnel records show that he was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Southwest Asia Service Medal, and the Kuwait Liberation Medal. He participated in the Defense Of Saudi Arabia and Liberation And Defense Of Kuwait campaigns. His military occupational specialty (MOS) was motor transport operator and infantryman. He served in Saudi Arabia on temporary duty (TDY) for 7 months between January and August 1991. The post-service medical evidence shows that, on VA examination in September 2001, there was no edema or calf tenderness in the extremities, decreased sensation and touch sensation in the hands and feet, stocking-glove anesthesia, normal muscle tone, and normal peripheral pulses in his extremities. The impressions included peripheral neuropathy due to diabetes mellitus. In April 2004, the veteran reported that his PTSD had been caused by a fellow soldier shooting himself in the leg and wounding another soldier severely. He also reported witnessing numerous SCUD missile attacks while on active service in the Persian Gulf War. The veteran received regular VA outpatient treatment for his PTSD in 2004. For example, in January 2004, the veteran complained of depressed mood, nervousness, insomnia, nightmares, and rage and difficulty controlling his anger. The veteran reported that, while in the Persian Gulf in 1991, there were missiles shot over his barracks and he was lost in the desert numerous times. Mental status examination of the veteran showed no suicidal or homicidal ideation, full orientation, irrelevant but coherent thought progression, no psychomotor agitation or retardation, and loud but normal speech. The diagnoses included moderate PTSD concurrent with depression, not otherwise specified. In April 2004, it was noted that the veteran first began experiencing PTSD symptoms on returning from Operation Desert Storm in 1992. Mental status examination of the veteran showed full orientation, normal speech, logical and goal- directed thoughts, no hallucinations, no evidence of psychotic symptoms, and no suicidal or homicidal ideation. The veteran's Global Assessment of Functioning (GAF) score was 50, indicating serious symptoms. The impressions included PTSD. In a May 2004 letter, D.D.K., D.O. (Dr. D.K.), stated that the veteran complained of neuropathy. The veteran's medical history included diabetic neuropathy. Objective examination showed no clubbing, cyanosis, or edema of the extremities, extremely decreased feeling in both feet, 4/5 muscle strength in the lower extremities. The assessment included diabetic neuropathy and PTSD. In June 2004, mental status examination of the veteran showed normal speech, a linear thought process, no suicidal or homicidal ideation, and full orientation. The diagnoses included PTSD. On VA examination in July 2004, the veteran's complaints included a recurrent skin rash on the right index finger and that he had no feeling or sensation in his feet. He reported that, while spraying diesel fuel on active service in the Persian Gulf War, some of it got on to his hand and he developed a skin rash on the right index finger. The VA examiner reviewed the veteran's claims file, including his service medical records. Physical examination showed a blister with the skin peeling off on the right index finger with red and mildly swollen skin, normal movement of the feet with no evidence of edema, and decreased vibration sense in the hands and feet at glove and stocking type of loss of distribution. The VA examiner opined that the veteran's skin rash was not at least as likely related to active service. The impressions included a tinea infection with skin rash confined to the right index finger and distal symmetrical peripheral neuropathy. In a February 2005 statement, the veteran contended that he had been exposed to asbestos during his first period of active service. He reported that his in-service duties as a fireman "consisted of working in a heater (furnace). My job was to clean out the inside where it was smoke and soot, and I had to inhale a lot of it." He contended that, when he had a cold during active service, he coughed up "a lot of black mucus because I would inhale so much smoke and soot." He also asserted that his in-service stressor had occurred while on active service in the Persian Gulf War when his unit was fired on every night for one week. He asserted further that his in-service stressor had occurred when the truck he was driving had gotten lost near Kuwait and fearing that he would be killed when "a large helicopter" spotted his truck. On VA outpatient treatment in March 2006, mental status examination of the veteran showed normal speech, linear thoughts process, no suicidal or homicidal ideation, and full orientation. The diagnoses included PTSD. In a February 2007 memorandum to the file, the RO determined that the information required to corroborate the veteran's claimed in-service stressor were insufficient to sent to the Joint Services Records Research Center (JSRRC) (formerly the Center for Unit Records Research). This memorandum outlined the RO's efforts made in order to attempt to obtain the information necessary to request corroboration of the veteran's claimed in-service stressors from JSRRC. The RO concluded that all efforts to obtain such information had been exhausted and any further attempts would be futile. On VA examination in April 2007, the veteran complained of increased difficulty breathing. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran reported in-service exposure to asbestos during his first period of active service while working as a fireman and in the engine room of a Navy ship. His in-service duties required him to scrape the tubes and pack the valves using asbestos. He also cleaned the boilers onboard his ship. He wore no protective gear or mask at the time he used the asbestos material onboard his ship. He denied any history of lung or chest trauma, pulmonary embolism, respiratory failure, cough, fever, night sweats, and paroxysmal nocturnal dyspnea. He reported a history of shortness of breath on mild exertion, daytime hypersomnolence, snoring, and sleep disruption. Physical examination showed no respiratory abnormalities and normal chest expansion. Chest x-ray showed elevation of the left hemidiaphragm and noted discoid atelectasis in the left mid-lung field. Pulmonary function testing showed no obstructive lung defect and a moderate restrictive lung defect. The VA examiner opined that there was no clinical or radiological evidence of asbestosis. The Board finds that the preponderance of the evidence is against the veteran's claim of service connection for emphysema. Although the veteran's service personnel records show that his active service included service in the Persian Gulf War, the veteran's service medical records show no complaints of or treatment for emphysema during active service. The veteran has not been treated for emphysema since service separation in October 1991. There also is no evidence that the veteran currently experiences any disability as a result of his claimed emphysema. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, service connection is not warranted in the absence of current disability. Additional evidence in support of the veteran's claim of service connection for emphysema is his own lay assertions. As a lay person, however, the veteran is not competent to opine on medical matters such as the etiology of medical disorders. The record does not show, nor does the veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter. Accordingly, the veteran's lay statements are entitled to no probative value. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Accordingly, the Board finds that service connection for emphysema is not warranted. The Board also finds that the preponderance of the evidence is against the veteran's claim of service connection for asbestosis due to asbestos exposure. The veteran's service medical records do not contain any records of in-service asbestos exposure. The veteran has contended that his in- service asbestos exposure occurred while he was assigned to U.S.S. ANCHORAGE as a fireman; his service personnel records from his first period of active service confirm that his last duty assignment and major command was aboard U.S.S. ANCHORAGE and his military occupational specialty (MOS) was fireman. The veteran's service medical records also show no complaints of or treatment for asbestosis or any other asbestos-related diseases at any time during either of the veteran's two periods of active service. In fact, the veteran's service medical records from his first period of active service show that his chest x-ray was normal at his enlistment and separation physical examinations. It appears that he was first treated for asbestos exposure in April 2007, or more than 15 years after his last service separation in October 1991, when the veteran reported an in-service history of asbestos exposure. See Maxson, 12 Vet. App. at 459. The VA examiner concluded in October 1991, after reviewing the claims file and thoroughly examining the veteran, that there was no clinical or radiological evidence of asbestosis. Service connection is not warranted absent proof of current disability. See Brammer, 3 Vet. App. at 225. The veteran's lay statements also are entitled to no probative value on the issue of whether his claimed asbestosis is related to in- service asbestos exposure. Thus, the Board finds that service connection for asbestosis due to asbestos exposure is not warranted. With respect to the veteran's service connection claim for PTSD, there is a diagnosis of PTSD of record; thus, the central issue in this case is whether the record contains credible corroborating evidence that a claimed in-service stressor actually occurred which supports the diagnosis. The evidence necessary to establish the occurrence of a stressor during service varies depending on whether the veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60 (1993). In this case, no competent evidence shows that the veteran engaged in combat with an enemy force. The veteran's service personnel records do not show any assignments or other awards indicating combat service although the veteran served in Vietnam and in the Persian Gulf War. In such cases, the record must contain other evidence that substantiates or corroborates the veteran's statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). The veteran has asserted that his in-service stressor occurred when his base in Saudi Arabia came under missile attack while he was on active service in the Persian Gulf War. He also has asserted that his in-service stressor occurred when his truck got lost in the desert near Kuwait during the Persian Gulf War and witnessing another soldier shoot himself in the leg with the round passing through and striking a third soldier. As noted, the veteran's service personnel records show no combat awards or combat service although the Board acknowledges that the veteran served in the Persian Gulf War. Further, and as the RO concluded in February 2007, the veteran has not provided sufficient additional details concerning the alleged in-service stressors such that corroboration could be attempted by JSRRC. And, as noted, an after-the-fact medical opinion cannot serve as the basis for corroboration of an in-service stressor. See Moreau v. Brown, 9 Vet. App. 389 (1996). Because the veteran's claimed in-service stressor could not be corroborated, and because he has not produced any other credible evidence showing that his claimed in-service stressor actually occurred, there is no valid diagnosis of PTSD based on a corroborated in-service stressor. Thus, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for PTSD. Finally, the veteran contends that his service-connected degenerative joint disease of the right knee is more disabling than currently evaluated. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's service-connected degenerative joint disease of the right knee is evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5010-5260 (traumatic arthritis and limitation of leg flexion). See 38 C.F.R. § 4.71a, DC 5010-5260 (2007). If a veteran has separate and distinct manifestations relating to the same injury, he or she should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2006). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2006). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2007). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2007). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." With any form of arthritis, painful motion is an important factor of disability. It is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2007). Arthritis due to trauma and substantiated by x-ray findings is rated as degenerative arthritis under DC 5003. DC 5003 indicates that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. When, however, the limitation of motion of the specific joint involved is non-compensable under the appropriate DC, a rating of 10 percent is applicable for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling muscle, spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, DC 5003 provides a 10 percent evaluation for degenerative arthritis with x-rays evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. The maximum evaluation of 20 percent is available under DC 5003 for degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71, DC's 5003, 5010 (2007). For the purpose of rating disability from arthritis, the knees are considered major joints. See 38 C.F.R. § 4.45(f) (2007). Under DC 5260, a 10 percent rating is assigned for leg flexion limited to 45 degrees. A 20 percent rating is assigned for leg flexion limited to 30 degrees. A maximum 30 percent rating is assigned for leg flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260 (2007). A review of the veteran's service medical records indicates that the veteran denied any relevant medical history at his enlistment physical examination in February 1970. Clinical evaluation of his lower extremities was normal. In January 1972, the veteran was referred for an orthopedic consult for a complaint of a "trick knee." His medical history and clinical evaluation were unchanged at his separation physical examination at the end of his first period of active service in March 1972. The veteran's medical history and clinical evaluation also were unchanged on subsequent Reserve physical examinations in February 1976, January 1979, March 1983, and in March 1988. The veteran was not treated for right knee problems during his second period of active service. His medical history and clinical evaluation were unchanged at his final separation physical examination in August 1991. The post-service medical evidence shows that, on VA examination in September 2001, the veteran complained of bilateral knee pain located mostly on the front of the knees and bilateral knee swelling. He reported that he had been diagnosed with osteoarthritis. He did not use any sort of brace or cane to walk. He reported injuring his right knee about a month earlier when moving the law at home. He also reported that, because of left knee weakness and pain, he was putting more pressure on the right knee, which resulted in a fall. He had used a crutch right after injuring his right knee. He continued to mow the lawn and work around the house. He was unable to squat but could climb up and down a ladder. Although he continued to drive normally, he could not drive for prolonged distances because of knee pain, swelling, and stiffness. Physical examination of the knees showed no welling, a normal patella bilaterally, no evidence of pleural effusion in the knee joint, flexion to 230 degrees, and normal extension. X-rays of the knees showed degenerative joint disease changes. The impressions included arthralgia of the knees due to degenerative joint disease. On VA examination in July 2004, the veteran complained of bilateral knee problems since falling off a truck while in Saudi Arabia during the Persian Gulf War. He reported that most of his knee pain was in his left knee. He had been using a walking cane for the last year because his left knee suddenly gives out on him, causing him to lose control and some times fall. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran denied any flare-ups of degenerative joint disease. Physical examination showed that he was unable to stand without the help of a cane, no knee pain at rest, a normal right knee, normal palpation of the right knee, flexion to 125 degrees with a complaint of "a burning sensation" at 80 degrees, full extension, and an additional 25 percent loss of range of motion on repetitive testing. The VA examiner noted that the veteran's range of motion was limited by pain, fatigue, weakness, and a lack of endurance following repetitive use. There was no joint laxity and the knee joint was stable. The VA examiner opined that it was at least as likely as not that the veteran's bilateral knee pain was related to active service. The impressions included degenerative joint disease changes causing bilateral knee pain, worse in the left knee. VA x-rays of the right knee in October 2006 showed mild degenerative changes at the right knee with small marginal osteophytes at the proximal tibia and patella. On VA examination in May 2007, the veteran complained of right knee pain, giving way, instability, stiffness, weakness, and flare-ups of pain. The VA examiner reviewed the veteran's claims file, including his service medical records. The veteran reported favoring his left knee and putting more pressure on the right knee while standing and walking. The veteran was able to stand for 15-30 minutes and was unable to walk more than a few yards due to knee pain. He denied any right knee dislocation or subluxation. Physical examination showed an antalgic gait, poor propulsion, no abnormal weight bearing, flexion to 120 degrees with pain, no limitation of motion on repetitive use, extension lacked 10 degrees from full extension without pain or limitation of motion on repetitive use, right knee crepitus, painful movement, weakness, and guarding of movement, and no loss of bone, inflammatory arthritis, joint ankylosis, or instability. X-rays showed moderate degenerative changes of the right knee. The VA examiner opined that the veteran's right knee degenerative joint disease was at least as likely as not due to his service- connected degenerative joint disease of the left knee. The diagnosis was moderate degenerative joint disease of the right knee The Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to an initial rating greater than 10 percent for service-connected degenerative joint disease of the right knee. The medical evidence shows that the veteran's degenerative joint disease of the right knee is manifested by, at most, complaints of painful motion and slightly less than full flexion and extension. Although there was painful right knee motion on VA examination in July 2004, the right knee joint was stable and showed no laxity. X-rays of the right knee in October 2006 showed mild degenerative changes with small marginal osteophytes. At the veteran's most recent VA examination in May 2007, he denied any right knee dislocation or subluxation. The right knee had 120 degrees of flexion and almost full extension without pain or further limitation of motion on repetitive testing. X-rays showed only moderate changes to the right knee. This warrants a 10 percent rating under DC 5010-5260. See 38 C.F.R. § 4.59. There is no evidence that the disability rating assigned to the veteran's service-connected degenerative joint disease of the right knee should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the day the veteran filed the claim to the present supports the conclusion that the veteran is not entitled to additional increased compensation during any time within the appeal period. As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has not been received, the claim of service connection for residuals of a right foot injury is not reopened. As new and material evidence has not been received, the claim of service connection for residuals of a left foot injury is not reopened. Entitlement to service connection for a skin rash of the right index finger is denied. Entitlement to service connection for asbestosis due to asbestos exposure is denied. Entitlement to service connection for PTSD is denied. Entitlement to service connection for emphysema is denied. Entitlement to an initial disability rating greater than 10 percent for degenerative joint disease of the right knee as secondary to service-connected degenerative joint disease of the left knee is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs