Citation Nr: 1005992 Decision Date: 02/18/10 Archive Date: 03/02/10 DOCKET NO. 08-14 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for surgical scar and callus, left foot. 2. Entitlement to service connection for disorder manifested as low back pain. 3. Entitlement to service connection for scar tissue due to retained placenta. 4. Whether new and material evidence has been presented to reopen a claim for service connection for disorder manifested as disequilibrium. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from August 1979 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in relevant part denied service connection for the low back disorder and scar tissue from retained placenta, continued the 10 % evaluation of the left foot surgical scar and callus and found new and material evidence had not been presented to reopen the claim for service connection for disequilibrium. While the RO did not appear to consider the disequilibrium claim on the merits, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, regardless of the manner in which the RO characterized the issue, the initial question before the Board with respect to the disequilibrium claim is whether new and material evidence has been received. FINDINGS OF FACT 1. The competent and probative evidence of record demonstrates that the Veteran's surgical scars of the left foot were largely asymptomatic, with no reports of pain or limitation of motion and while the Veteran's service- connected calluses under the left foot were painful to the touch, there is no evidence of a moderately severe foot injury, malunion of the tarsal or metatarsal bones, no limitation of motion and no evidence of loss of use of the foot. 2. The competent medical evidence does not demonstrate any current residual disability due to an in-service mechanical low back strain. 3. The competent medical evidence does not show that there is a current diagnosis or disability of scar tissue due to a retained placenta. 4. An unappealed rating decision dated in January 1995, the RO denied entitlement to service connection for equilibrium problems. 5. The evidence submitted since the time of the RO's January 1995 decision denying service connection for equilibrium problems is new but does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the Veteran's current claim. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for surgical scars and callus of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 4.7, 4.118, Diagnostic Codes 7804-5284 (2009). 2. A disorder manifested by low back pain was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 3. The Veteran's claimed scar tissue due to retained placenta disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 4. The January 1995 rating decision denying service connection for equilibrium problems is final. 38 U.S.C.A. §§ 5103(a), 7105(d) (West 2002); 38 C.F.R. § 20.1103 (2009). 5. The evidence received subsequent to the January 1995 rating decision is new but not material, and the requirements to reopen the claim of service connection for a disorder manifested as disequilibrium have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria - Increased Rating - Left Foot Scar & Callus Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is noted that in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Nonetheless, as demonstrated below, the Board finds that "staged ratings" are not appropriate in this case. During the rating period on appeal, the Veteran's disabilities have been appropriately rated. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion - Left Foot Scar & Callus The RO had evaluated the Veteran's surgical scar and callus, left foot, disability under 38 C.F.R. § 4.71a, Diagnostic Codes 7804-5284 in the rating decision on appeal. See 38 C.F.R. §§ 4.27, 4.118 (2009) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). The Veteran submitted her claim in November 2006. Private treatment reports in the record contain no reference to her left foot. VA treatment records contain a July 2006 primary care note which contains her complaints of left foot pain and toe numbness; however there was no report or observation regarding her surgical scars on the left foot or the callus. An April 2007 VA orthopedic clinic consultation also noted her complaint of foot pain; however, the report included her history of 2 failed bunion repairs, in service. The objective examination referred to her multiple healed incisions. In May 2007 the Veteran was afforded a VA scar examination. The Veteran reported pain in the entire left foot. She stated the scars did not bother her much, but that the problem was with the entire foot, especially at the site of the incisions pain in the calluses. The examiner noted well- healed surgical scars at the top of her left foot. A hyper pigmented scar along the lateral aspect of her foot was about 5 cm long and about 1.5 cm wide. There was no pain in the scar upon examination and no adherence to underlying tissue. That scar was not irregular, atrophic, shiny, or scaly, and there was no elevation or depression of the surface or contour of the scar on palpation. There was no inflammation, edema, or keloid formation. There were 2 other scars. One was between the 2nd and 3rd toe and it was about 3 cm long and the other ran between the 3rd and 4th toes and that was about 5 cm long. These scars were mildly hyperpigmented compared to the rest of the skin. Again, there was no pain upon examination, any irregularity, instability, elevation or depression. The Veteran's foot pain was mainly at the head of the small toe. She had three calluses, all painful to the touch, on the undersurface of the left foot. One was under her left little toe and another seemed deeper and between the 2nd and 3rd toe. In September 2008 the Veteran was afforded a VA feet examination following a separate claim. The examiner noted her complaints of left foot pain which limited her ability to stand at her employment. The Veteran reported the calluses were painful with some pain at the bottom of her feet. The examiner observed the Veteran walked with a normal gait and did not use an assistive device. The examiner also considered the surgical scars well healed and referred to the May 2007 examination for the description of scars. The Board observes that in November 2008 the RO granted service connection for hallux valgus and hammertoe deformity or the left foot, postoperative with degenerative joint disease as secondary to the already service-connected surgical scar and callus, left foot, with a 10 percent evaluation. The Veteran is currently rated under Diagnostic Code 7804 for her service-connected surgical scars of the left foot. A 10 percent disability rating is assigned for superficial scars that are painful on examination. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2009). Under Diagnostic Code 7805, a scar will be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2009). The Board notes that the Veteran is presently receiving the maximum available rating under Diagnostic Code 7804; therefore, Diagnostic Code 7804 does not assist her in obtaining a higher evaluation. The Board must consider evaluation of the Veteran's service-connected surgical scars under all other potentially appropriate diagnostic codes. Under 38 C.F.R. § 4.118, Diagnostic Code 7800 provides the criteria for rating disfiguring scars of the head, face, or neck and does not apply in this situation as the Veteran's scars are located on her left foot. The Board notes that there is no evidence that the Veteran's scars limit her motion to warrant application of Diagnostic Code 7801, scars, other than head, face, or neck, that are deep or that cause limited motion; or Diagnostic Code 7805, scars, other, which are rated on limitation of function of the affected part. Specifically, neither the May 2007 and September 2008 VA examiners reported the Veteran's left foot scars limited her motion. Furthermore, the scars are not 144 square inches or greater to warrant application of Diagnostic Code 7802, scars, other than head, face, or neck that are superficial and do not cause limitation motion. There is also no evidence that the scars are unstable to warrant application of Diagnostic Code 7803, superficial, unstable scars. Therefore, 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, and 7805 do not assist the Veteran in obtaining a higher evaluation for her surgical scars of the left foot. The Board also notes that effective October 23, 2008, VA revised portions of the rating schedule that addresses the skin. The revisions do not alter or affect the Veteran's claim, however. Similarly, a foot injury may potentially be rated under Diagnostic Code 5284. Under that diagnostic code, a 10 percent rating is warranted for an injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe injury. A 30 percent rating is warranted for a severe injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. After considering all of the evidence, the Board finds no basis for assigning a higher evaluation in excess of 10 percent for the Veteran's left foot calluses. It is clear from the record that the Veteran's left foot calluses are painful to the touch. However, the record indicated the Veteran walked with a normal gait and without assistive devices. Therefore, the evidence simply does not reflect that the Veteran's left foot calluses are productive of symptomatology analogous to moderate malunion or nonunion, nor is there moderately severe injury of the foot. The Board has considered whether the Veteran's disability would warrant a higher evaluation under other Diagnostic Codes pertaining to the foot. However, the Veteran does not have bilateral weak foot, claw feet (pes cavus), metatarsalgia, hallux rigidus, or other foot injuries to warrant a higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5279, 5281, 5282 (2009). Further, service connection has already been granted with a 10 percent evaluation for the left foot hammertoes under Diagnostic Code 5280. As such, another rating to compensate the Veteran for symptoms which have already been considered in the hallux valgus, hammertoe, and degenerative joint disease evaluation would amount to pyramiding. 38 C.F.R. § 4.14 (2009). The Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40 or 4.45 is warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the Veteran's joints. See DeLuca, supra. However, in this case, where the diagnostic code under which the Veteran is rated, in this case, Diagnostic Codes 7804, is not predicated on loss of range of motion, §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7(1996). It is also noted that the mandates of Hart v. Mansfield, 21 Vet. App. 505 (2007), wherein the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings" have been considered. Nonetheless, the Board finds that "staged ratings" are not appropriate in this case. During the rating period on appeal, the Veteran's disability has appropriately been rated as 10 percent disabling. The Veteran is competent to report her symptoms. The Board does not doubt the sincerity in the Veteran's belief that her disability is worse than the current 10 percent evaluation contemplates; however, the objective medical evidence does not support the contentions for a higher evaluation. The Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for surgical scars of the left foot and callus and the benefit- of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. Extraschedular Consideration In this instance, the severity of the Veteran's left foot surgical scars and callus are clearly accounted for in the scar and foot injury 10 percent evaluation which compensates for the scars and impediment of the calluses. The Board finds the Diagnostic Codes adequately address the Veteran's symptoms. The Veteran has not claimed any hospitalization because of her left foot scars or calluses and the Board notes that the Veteran has been granted service connection for the left foot hallux valgus and hammertoe deformities in November 2008. The Board acknowledges that the Veteran has reported the foot pain limited her functioning at work, specifically her ability to stand; however, the Veteran herself did not attribute that pain to her surgical scars or the callus, but to her entire foot. As such, the diagnostic code for the Veteran's service-connected disability adequately describes the current disability levels and symptomatology and, therefore, a referral for an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008) Legal Criteria - Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection may also be granted for a disease first 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Discussion - Service Connection Low Back Pain and Scar Tissue Due to Placenta The Board has reviewed the Veteran's service treatment records. There was no enlistment examination in the record. An October 1987 gynecology (GYN) examination report contained the observation that the Veteran had no complaints. The assessment was normal GYN examination. A January 1989 Report of Medical Examination report found the Veteran's spine clinically normal and noted she had had a pelvic check two months prior. She was found fit for retention. The January 1989 Report of Medical History indicates the response to whether she had ever had recurrent back pain was checked in the negative and the questions regarding whether she had ever been treated for a female disorder or had a change in menstrual pattern were both checking in the negative. The section for physician's comments noted her history of foot surgeries. In April 1989 the Veteran underwent another GYN examination. The examiner noted the Veteran's history of miscarriages and that the uterus was NSSC (normal size, shape, and consistency). The assessment was normal examination. In May 1989, the Veteran complained of mid-back pain. Objective examination noted tenderness on the spine and the assessment was probable musculoskeletal strain. The Veteran sought care again in December 1989, reported she had had back problems for the previous month. She denied any trauma, though she had been weightlifting several weeks prior. The assessment was mechanical back pain. The Veteran sought follow-up care for her back a week later. The examiner observed a stilted gait and decreased range of motion. The assessment was mechanical low back pain and the plan included physical therapy. The December 1989 physical therapy consultation noted the Veteran attributed the onset of the back pain to her lifting weights and she denied a prior history. The examiner assessed her condition as low back pain strain and recommended a profile. A January 1990 physical therapy report noted the Veteran described significant improvement and that she started weight lifting and aerobics without complications. The examiner assessed resolved low back pain strain and the Veteran was discharged from the physical therapy clinic. A March 1991 Report of Physical Examination for redeployment found her spine clinically normal. The March 1991 Report of Medical History again bore negative responses to the inquires about recurrent back pain, whether she had ever been treated for a female disorder and any changes in menstrual pattern. A July 1993 gynecology examination report noted the Veteran's most recent miscarriage and that that this was "complicated by retained placental fragments" and endometritis. The report included the recent results of testing of both the Veteran and her husband and recommended another consultation. The Veteran's April 1994 Report of Medical Examination for retirement also found her spine clinically normal. The Report noted her three miscarriages for the clinical finding that her G-U system was abnormal. The April 1994 Report of Medical history again indicated negative responses to recurrent back pain and whether the Veteran had ever been treated for a female disorder or had had a menstrual change. Post-service, private treatment records from 1995 to 1997 detailed the Veteran's fertility treatment, another miscarriage, and a successful pregnancy. An October 1996 report noted a "hysteroscopic lysis of intrauterine adhesions showed a completely nl uterus." No treatment report included the phrase "placenta fragments." Private treatment records from Dr. H which spanned 1997 to 2008 also do not have any reference to scar tissue or placenta fragments. In October 2004 the Veteran had a hysterectomy. VA treatment reports of record do not contain any complaints of low back pain. Her June 2003 initial examination found her spine and extremities unremarkable. Private examinations in March 2005 and December 2005 note there was no complaint of back pain. A private November 2007 MRI for the Veteran's lumbar spine noted mild degenerative changes at the L5-S1 level and a small disc bulge at L5-S1. The report contains no reference to the Veteran's military service and no opinion regarding the etiology of the degenerative changes or disc bulge. Regarding the Veteran's claim for a low back pain disorder, based on the facts as detailed above, it is not disputed that the Veteran suffered episodes of low back strain in service. However, the Board again notes that service records after December 1989 and January 1990 were entirely silent as to any recurrent back problems and her April 1994 retirement examination was normal. Moreover, the post-service evidence fails demonstrate any objective symptoms, diagnoses or residuals relating the 2007 finding of mild degenerative disc disease and a small bulge at L5-S1 to the in-service low back strain of 1989. Regarding the Veteran's claim for scar tissue due to a retained placenta, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. There is no medical evidence of a current diagnosis of scar tissue due to a retained placenta or for the residuals of such a condition. Further, the Board notes that the Veteran underwent a hysterectomy in 2004. Therefore, any claimed scarring of her uterus due to placenta fragments would no longer exist. The Veteran submitted her claim in 2006. The Veteran has not brought forth competent evidence from a medical professional of a current disability stemming from any claimed placenta fragments during service; thus, service connection for the claimed condition cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability," and held "[i]n the absence of proof of a present disability[,] there can be no valid claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, and not for a past disability). The Board acknowledges that the Veteran is certainly competent to testify as to symptoms such as experiencing low back or being told of placenta fragments; however, she is not competent to render a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, even when considering the Veteran's symptoms, the Board finds that a lay person is not competent to offer an opinion on a matter clearly requiring medical expertise, such as opining that her mild degenerative disc disease is related to his in-service back strain complaints. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the Veteran and his representative's lay beliefs alone can serve to establish any association between the claimed disabilities and her military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). The Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, her lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu. Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that in the April 1994 Report of Medical Examination indicated her spine was clinically normal. Her G-U system was found to be abnormal due to her history of miscarriages; there was no reference to the clinically observation of the existence of placenta fragments or a diagnosis of scars or scar tissue as a result of these observed fragments. Therefore, continuity has not here been established, either through the competent evidence or through statements. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, no competent evidence of record causally relates any spine or gynecological disability to the in-service occurrences. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990). Legal Criteria - New and Material Evidence By way of background, the Veteran first submitted a claim for equilibrium in September 1994. The RO denied the claim for equilibrium problems in January 1995, noting that while her service treatment records contained complaints of imbalance and equilibrium problems, no etiology was found and the Veteran denied experiencing the symptom during the VA examination. The record contains no response or appeal from the Veteran; and so the decision became final. See 38 U.S.C.A. § 7105(c). In November 2006 the Veteran submitted the current claim which listed several disabilities, including a disorder that was manifested by disequilibrium. This claim has denied by the November 2007 rating decision at issue. With respect to applications to reopen previously denied claims, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "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) (2009). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that any duty to assist the Veteran in developing the facts necessary for her claim has been satisfied. Discussion - New and Material Evidence The evidence of record before the RO at the time it issued the last final denial in January 1995 consisted of the Veteran's service treatment records and an October 1994 VA general medical examination. After the January 1995 rating decision, the Veteran submitted private ob/gyn treatment records, spanning November 1995 to January 1997, detailing her fertility treatments and success; private treatment records from another private physician from 1997 to January 2008; VA treatment records beginning in June 2003 to October 2007 for various disabilities; a private November 2007 MRI for her lumbar spine, and VA examinations for her left foot related disabilities. The Board has considered the evidence submitted by the Veteran; however, the Board finds that the Veteran has not submitted evidence that is new and material, and therefore her claim may not be reopened. All of the VA and private medical treatment reports in the record are dated after the January 1995 rating decision and pertain to various medical treatments. The submission of these records are "new" in the sense that they had not previously been included in the claim file; however, not one of the reports can be considered "material." No medical treatment reports include any complaint of equilibrium problems, disequilibrium, or imbalance. Further, no medical treatment report contains a diagnosis or treatment of an equilibrium problem, nor any medical practitioner's opinion about the imbalance symptoms the Veteran clearly complained about during her service. The Board notes an April 2004 private physical examination in which the Veteran reported she had no complaints and was taking only calcium, multivitamins, and Zocor. The assessment was "well woman." The United States Court of Appeals for Veterans Claims (Court) has held that additional evidence, which consists merely of records of post-service treatment that do not indicate that a condition is service connected, is not new and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993); Morton v. Principi, 3 Vet. App. 508 (1992) (observing that evidence of the veteran's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). Therefore, none of the evidence submitted since the time of the last final January 1995 rating decision constitutes new and material evidence under 38 C.F.R. § 3.156(a) sufficient to reopen the Veteran's previously-denied claim. The Veteran's appeal as to the reopening of the finally denied claim of entitlement to service connection for a disorder manifested as disequilibrium is therefore denied. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VCAA notice requirements have been satisfied by the January 2007 and October 2007 letters. In the letters, the Veteran was informed of the evidence necessary to substantiate the claims. The letters informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show she had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service. As to informing the Veteran of which information and evidence she may provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed her it had a duty to obtain any records held by any federal agency. It also informed her that on her behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that she could obtain private records herself and submit them to VA. The requirements of the VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The January 2007 notice letter provided the Veteran with notice of the laws regarding degrees of disability or effective dates for any grant of service connection. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In any event, because the service connection claim for disequilibrium remains unopened and the service connection claims for low back pain and scar tissue due to a retained placenta remain denied, any questions regarding a disability rating and effective date are now moot. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the October 2007 notice letter of record satisfies the requirements under Kent. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran identified private medical treatment records and they were added to the record. The Veteran was not afforded an examination for her low back pain and scar tissue due to a retained placenta service connection claims. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. Id. The record before VA need only (1) contain competent evidence that the Veteran has persistent or recurrent symptoms of current disability and (2) indicate that those symptoms may be associated with the Veteran's active military service. Duenas v. Principi, 18 Vet. App. 512 (2004). The Board finds that the Veteran's service connection claims fail to meet both of these criteria. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410, at 418 (2006). The Board has carefully considered the Court's language in McLendon that the threshold for showing this association is a low one. However, there is a threshold. In this case there is no evidence of continuity of symptomatology, no diagnosis of a low back disability in service and no diagnosis of any disability regarding scar tissue due to a retained placenta. For these reasons, the Board declines to afford the Veteran VA examinations or obtain medical opinions for these claims. As well, the Veteran was not afforded a VA examination to determine the nature and etiology of the disequilibrium disability. The Board finds that VA was not under an obligation to obtain a medical opinion. The appellant has not submitted new and material evidence to reopen that claim. 38 C.F.R. § 3.159(c)(4)(iii) states that paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. Regarding the increased evaluation claim for the Veteran's surgical scars and left foot callus, the RO sent letters to the Veteran in January 2007, and May 2008, with the VCAA notice requirements for his increased rating claims. In the January 2007 letter, the Veteran was informed that the evidence necessary to substantiate the claim for increased evaluation would be evidence showing that her disability was worse than the current evaluation contemplates. The letter also informed the Veteran that she may provide medical or lay evidence demonstrating a worsening of her disabilities and the impact on her employment and daily life, which can also be substantiated by sending statements from other individuals who are able to describe in what manner the disabilities have become worse. It also informed her that on her behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The letter stated that she would need to give VA enough information about the records so that it could obtain them for her. The Veteran's claim was adjudicated in November 2007 and readjudicated in June 2008. In addition to the foregoing analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim is being denied, any such effective date questions are moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA obtained the Veteran's service treatment records and VA outpatient treatment records and the Veteran has submitted private treatment records. The Veteran was also provided a VA examination in May 2007 in connection with the increased rating claim, which is found to be adequate for rating purposes. The examiner considered the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds that the 2007 VA examination report is probative. While the September 2008 VA feet examination was provided for another left foot claim, that examination results were also probative as the examiner also considered the Veteran's foot scars and calluses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. ORDER Entitlement to a disability rating in excess of 10 percent for surgical scar and callus, left foot, is denied. Service connection for disorder manifested by low back pain is denied. Service connection for scar tissue due to retained placenta is denied. New and material evidence having not been presented, the appeal to reopen a claim for service connection for a disorder manifested by disequilibrium is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs