Citation Nr: 1038457 Decision Date: 10/13/10 Archive Date: 10/22/10 DOCKET NO. 03-00 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a right hand and finger disability. 3. Entitlement to service connection for a right scapula disability. 4. Entitlement to service connection for a right posterior tibial tendon disability. 5. Entitlement to a disability rating in excess of 10 percent for post-operative residuals of a right knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from prior rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board observes that the RO originally denied the Veteran service connection for a posterior tibial tendon, without specifying which tendon was being considered. Review of the Veteran's original February 2005 claim, however, confirms that the Veteran is seeking service connection for a posterior tibial tendon disability of the right foot, and the issue on appeal has been clarified to reflect that fact. These issues were previously presented to the Board in April 2009, at which time they were remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). During the course of this appeal, the Veteran was awarded, in a February 2004 rating decision, a compensable rating of 10 percent for his right knee disability. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, this matter remains in appellate status. FINDINGS OF FACT 1. The Veteran's current right hip strain did not manifest during military service or within a year thereafter, and is not due to or aggravated by a service-connected disability. 2. Competent evidence establishing onset of a current right hand or finger disability during military service has not been presented. 3. Competent evidence establishing onset of a current right scapula disability during military service has not been presented. 4. The Veteran's current posterior tibial tendon dysfunction did not manifest during military service or within a year thereafter, and is not due to or aggravated by a service-connected disability. 5. The Veteran's residuals of a right knee injury include extension limited to 5 degrees, flexion limited to 95 degrees, and no lateral instability or recurrent subluxation of the right knee. CONCLUSIONS OF LAW 1. The criteria for the award of service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2010). 2. The criteria for the award of service connection for a right hand and finger disability have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). 3. The criteria for the award of service connection for a right scapula disability have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). 4. The criteria for the award of service connection for a right posterior tibial tendon disability have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2010). 5. The criteria have been not met for a disability rating in excess of 10 percent for residuals of an injury of the right knee. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-63 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In July 2001, May 2003, July 2004, March 2006, May 2008, and June 2009 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the November 2001 and May 2005 adverse determinations on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, that case was overruled by the U.S. Court of Appeals for the Federal Circuit, and is no longer binding on the Board. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded VA medical examination on several occasions, most recently in April 2005. Pursuant to the Board's April 2009 remand order, an additional VA examination was scheduled for the Veteran in August 2009; however, the Veteran failed to report for examination, and offered VA no explanation for his absence. "[T]he duty to assist is not always a one-way street. If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's representative contends that because no notice letter is of record, this appeal should be remanded to reschedule the requested examination. While it is true no letter of notice to report for examination is of record, Board concludes that the presumption of regularity that attends the administrative functions of the Government is applicable. Under this presumption, it is presumed that a notification letter was properly mailed by the RO and properly delivered by the postal service. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a rebuttable "presumption of administrative regularity" under which it is presumed that government officials have properly discharged their official duties, including mailing notices. See Clark v. Principi, 15 Vet. App. 61, 63 (2001). In order to rebut this presumption, there must be clear evidence to the contrary that either VA's regular mailing practices were not regular or they were not followed. Specifically, the Veteran must establish both that the mailing was returned as undeliverable and that there were other possible and plausible addresses that could have been used to contact him. See Davis v. Principi, 17 Vet. App. 29 (2003). In the absence of clear evidence to the contrary, it is presumed that VA properly notified the Veteran of the scheduled August 2009 examination with an appropriate notice letter, and that he received such a letter. There is no evidence in the record that the mail was not delivered. In light of the foregoing, no additional burdens remain unmet by VA. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. II. Service connection The Veteran seeks service connection for various disabilities. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Although 38 C.F.R. § 3.310 was amended effective October 10, 2006, during the pendency of this claim, the Board will apply the former version of 38 C.F.R. § 3.310, which is more favorable to the appellant because it does not require the establishment of a baseline before an award of service connection may be made. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. a. Right hip The Veteran seeks service connection for a right hip disability. Service connection is claimed on both a direct basis, as due to an in-service disease or injury, and on a secondary basis, as due or aggravated by a service-connected disability. The Veteran was without orthopedic disability of the right hip on physical examination and acceptance into military service in April 1988; however, scoliosis of the low and mid back was noted at that time. The Veteran sought treatment in April 1991 for a two-month history of low back and hip pain. His pain was worse in the morning, and was accompanied by stiffness. The impression was of scoliosis and mechanical low back pain. Physical therapy was recommended. In August 1991, the Veteran was seen at the orthopedic clinic for scoliosis of the spine. He also reported a history of right hip pain. A diagnosis of a right hip disorder was not given at that time. Additionally, a service separation examination is not of record. A VA orthopedic examination was afforded the Veteran in April 2005, at which time both his right knee and hip were examined. On physical examination of the Veteran's knee, the examiner noted it was essentially stable, without painful motion. Pain was reported on range of motion of the right hip, and a right hip strain was diagnosed. Based on the right knee findings, the examiner concluded it was less likely than not that any current right hip disability was related to the Veteran's service- connected right knee disability. In February 2008, another VA physician reviewed the claims file and April 2005 examination report, and also determined no causative relationship existed between the Veteran's right knee disability and any right hip disability. The Veteran's right knee disability was not of sufficient severity to result in a corresponding disability of the right hip. Rather, in the examiner's opinion, the Veteran's scoliosis of the thoracic spine likely was the cause of the Veteran's right hip pain. The Veteran has asserted in his written statements to VA that his right hip disability began during military service, and/or is the result of his service-connected right knee disability. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a right hip disability, on either a direct basis or as secondary to a service-connected disability. Although the Veteran did complain of right hip pain during military service, initial examination of his right hip at that time was negative for any objective findings, and a formal diagnosis was not made; rather, his right hip pain was found to be a residual of his spinal scoliosis. The Board observes that the Veteran has previously applied for and been denied service connection for scoliosis, and that issue is not currently before the Board. The first diagnosis of a right hip disability dates to approximately 2005, when a right hip strain was diagnosed by a VA examiner. This represents a gap of over 10 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where a veteran failed to account for a lengthy time period between service and initial symptoms of disability). Additionally, although the Veteran was afforded VA examinations and sought VA treatment for various orthopedic complaints, he did not report a right hip disorder for several years post-service. Thus, the Board does not find credible the Veteran's reports of ongoing right hip symptomatology since service separation. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not been established, either through the competent evidence or through his statements. For this reason, service connection on a direct basis must be denied, as onset of a current right hip disability during military service or within a year thereafter has not been demonstrated. Considering also the claim of secondary service connection, the Board notes that on VA examination in April 2005, a VA examiner found it less likely than not that the Veteran's current right hip disability was due to or the result of his service-connected right knee disability. A second VA examiner reviewed the evidence in February 2008 and concurred with this opinion. The examiner noted that the Veteran's right knee disability was stable and of insufficient severity to cause such a secondary disorder. In the absence of competent evidence to the contrary, service connection on a secondary basis for a right hip disability must be denied. The Veteran himself alleges that a right hip disability began during military service, or results from or is aggravated by a service-connected disability. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Orthopedic disorders, however, are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the Veteran's claim of service connection, on both a direct and secondary basis, for a right hip disability. As a preponderance of the evidence is against the award of service connection, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). b. Right hand and finger The Veteran seeks service connection for a right hand and finger disorder. The general criteria for the award of service connection have already been noted above. The Veteran was without orthopedic disability on physical examination and acceptance into military service in April 1988. His service treatment records are negative for any diagnosis of or treatment for a disease or injury of the right hand or finger. Post-service, while the Veteran has sought VA and private medical treatment for various orthopedic disabilities, he has not reported symptomatology specific to his right hand and/or finger. The Board notes that the Veteran has, however, reported general pain, weakness, and malaise involving the right side of his body, and has alleged a prior, but unsubstantiated, history of a cerebrovascular accident. Nevertheless, the record does not reflect a diagnosis of a specific disorder of the right hand or finger. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a right hand and finger disability. Central to any service connection claim is a current diagnosis of the claimed disorder. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Where, however, as here, the overall evidence of record fails to support a diagnosis of the claimed condition at any time during the claim, that holding would not be applicable. Even assuming a current disorder of the right hand or finger, the Board notes that a corresponding diagnosis of such a disorder during military service is not shown within the service treatment records, or the medical records immediately following service separation. Although he was afforded VA medical treatment on a frequent basis between his service separation in 1993 and the present, he did not report a right hand or finger disorder until approximately 2005, when he filed for service connection compensation benefits. In the absence of any competent evidence linking any current right hand or finger disability to service, service connection for such a disability must be denied. The Veteran himself alleges a right hand disability began during military service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Orthopedic disorders, however, are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the Veteran's claim of service connection for a right hand and finger disability. As a preponderance of the evidence is against the award of service connection, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). c. Right scapula The Veteran seeks service connection for a right scapula disorder, claimed as right scapula "snapping" and/or traumatic arthritis. The general criteria for the award of service connection have already been noted above. The Veteran was without orthopedic disability on physical examination and acceptance into military service in April 1988. In August 1991, the Veteran was seen at the orthopedic clinic for scoliosis of the spine. He also reported a history of pain beneath the right shoulder. A specific diagnosis involving the right scapula was not made at that time, however. A service separation examination report is not of record. On a VA orthopedic examination in February 2005, the Veteran reported some pain of the right shoulder. On physical examination, range of motion of the right shoulder was within normal limits, and a current disability of the right shoulder was not diagnosed. The Veteran has been afforded VA and private medical treatment post-service, and has occasionally reported right shoulder pain. He has been diagnosed with a congenital scoliosis of the spine toward his right side, and his right shoulder pain has been suspected to be a residual of that diagnosis. He has been prescribed strengthening exercises of the right shoulder as part of his physical therapy for the spine. The Board observes that the Veteran has previously applied for and been denied service connection for scoliosis, and that issue is not currently before the Board. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a right scapula disability. Central to any service connection claim is a current diagnosis of the claimed disorder. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Where, however, as here, the overall evidence of record fails to support a diagnosis of the claimed condition at any time during the claim, that holding would not be applicable. Even assuming a current disorder of the right scapula, the Board notes that a corresponding diagnosis of such a disorder during military service is not shown within the service treatment records, or the medical records immediately following service separation. Although the Veteran did report pain under his right shoulder during military service, this pain was suspected to be a residual of his scoliosis, a condition for which service connection has not been granted. A specific diagnosis of a disability involving the right scapula was not made at that time. In the absence of any competent evidence linking any current right scapula disability to service, service connection for such a disability must be denied. The Veteran himself alleges a right scapula disability began during military service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Orthopedic disorders, however, are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the Veteran's claim of service connection for a right scapula disability. As a preponderance of the evidence is against the award of service connection, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). d. Right posterior tibial tendon The Veteran seeks service connection for a right posterior tibial tendon disorder. Service connection is claimed on both a direct basis, as due to an in-service disease or injury, and on a secondary basis, as due or aggravated by a service-connected disability. The general criteria for the award of service connection have already been noted above. The Veteran was without orthopedic disability on physical examination and acceptance into military service in April 1988. The Veteran sought treatment for pain, swelling, and tingling of the right foot and knee in January 1990. He was observed to walk with a limp. On objective examination, he had tenderness of the right foot, ankle, calf, and knee. An unstable right knee was suspected. No disability specific to the posterior tibial tendon, right foot, or right ankle was diagnosed at that time. A service separation examination is not of record. The Veteran sought private treatment for a right foot disability in September 1997. He described pain along the plantar aspect of the arch of the foot. On physical examination, the Veteran's right foot was normal in appearance, without tenderness. Pes planus was present. X-rays of the right foot were negative for abnormality. The final impression was of a painful right foot, with pes planus. A VA medical examination was afforded the Veteran in April 2005. He reported a history of right foot and ankle pain and instability which had gotten worse recently, especially with use. On physical examination, the examiner determined a diagnosis of Achilles tendonitis was warranted; however, such a disability was less likely than not the result of the Veteran's service- connected right knee disability, as his right knee was essentially stable. In February 2008, another VA physician reviewed the claims file and April 2005 examination report, and determined no causative relationship existed between the Veteran's right knee disability and any right foot or ankle disability. The Veteran's right knee disability was not of sufficient severity to result in a corresponding disability of the right foot or ankle. VA outpatient treatment records indicate the Veteran was seen in August 2002 for pain of the right foot arch. On physical examination, right posterior tibial tendon dysfunction was diagnosed. Possible mild posterior tibialis was again confirmed on VA examinations in June 2003 and March 2004. An August 2003 MRI, however, was negative for any abnormality of the right ankle. The posterior tibial tendon was specifically described as normal. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for a right posterior tibial tendon disability, on either a direct basis or as secondary to a service-connected disability. Although the Veteran did complain of right foot and ankle pain during military service, initial examination of his right foot and ankle at that time was negative for any objective findings specific to the right posterior tibial tendon, and a formal diagnosis was not made; rather, his right foot and ankle pain was found to be the result of an unstable right knee. The first diagnosis of a right foot disability dates to September 1997, when pes planus was diagnosed; however, a posterior tibial tendon disability was not observed at that time. Right posterior tibial tendon dysfunction was not diagnosed until August 2002, almost 10 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where a veteran failed to account for a lengthy time period between service and initial symptoms of disability). Additionally, while the Veteran was afforded VA examinations and sought VA treatment for various orthopedic complaints, he did not report a right posterior tibial tendon disorder for several years post-service. Thus, the Board does not find credible the Veteran's reports of ongoing right posterior tibial tendon symptomatology since service separation. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not here been established, either through the competent evidence or through his statements. For this reason, service connection on a direct basis must be denied, as onset of a current right posterior tibial tendon disability during military service or within a year thereafter has not been demonstrated. Considering also the claim of secondary service connection, the Board notes that on VA examination in April 2005, a VA examiner found it less likely than not that the Veteran's current right posterior tibial tendon disability was due to or the result of his service-connected right knee disability. The examiner noted that the Veteran's right knee disability was stable and of insufficient severity to cause such a secondary disorder. A second VA examiner reviewed the evidence in February 2008 and concurred with this opinion. In the absence of competent evidence to the contrary, service connection on a secondary basis for a right posterior tibial tendon disability must be denied. The Veteran himself alleges a right posterior tibial tendon disability began during military service, or results from or is aggravated by a service-connected disability. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Orthopedic disorders, however, are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the Veteran's claim of service connection, on both a direct and secondary basis, for a right posterior tibial tendon disability. As a preponderance of the evidence is against the award of service connection, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). II. Increased rating-Right knee The Veteran seeks a disability rating in excess of 10 percent for his post-operative residuals of a right knee injury. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. The Board has long recognized that, when considering initial ratings, the degree of impairment since the effective date of the grant of service connection must be considered, to include the possibility that a staged rating may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1998). In the case of Hart v. Mansfield [21 Vet. App. 505 (2007)], the U.S. Court of Appeals for Veterans Claims (Court) held that staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. As such, the Board will consider whether staged ratings are appropriate to the pending appeal. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where, however, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). The Veteran's residuals of a right knee injury are currently rated as 10 percent disabling under Diagnostic Code 5260, for limitation of motion of the knee. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. Pursuant to Diagnostic Code 5261, a 10 percent rating will be assigned for extension of the knee limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating for limitation to 20 degrees, and a 40 percent rating for limitation to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board notes that on September 17, 2004, the VA General Counsel issued General Counsel Opinion (VAOPGCPREC) 9- 2004, which held that a Veteran can receive separate ratings under Diagnostic Code 5260 (limitation of flexion), and Diagnostic Code 5261 (limitation of extension) for disability of the same joint, without violating the prohibition against pyramiding. Diagnostic Code 5257, for other impairment of the knee characterized by recurrent subluxation or lateral instability, provides a 10 percent rating for slight knee impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board is also cognizant of VAOPGCPREC 23-97, which holds that in certain cases where the Veteran has both limitation of motion and instability of the affected knee joint, a separate compensable rating may be assigned without violating 38 C.F.R. § 4.14, the regulation against pyramiding. On receipt of the Veteran's claim, a VA examination was afforded him in September 2001. He reported a recent history of increased right knee pain, especially with use. Two prior arthroscopic surgeries of the right knee were noted, the most recent in February 2001. On objective examination, the Veteran was ambulatory, with a normal gait, without need of a walking aid. His right leg displayed no signs of atrophy. Range of motion testing indicated flexion to 140 degrees, and extension to 0 degrees. Lachman's and McMurray's signs were negative. No ligament laxity was present. Crepitus was present in the right knee, and 1+ in severity. The findings were consistent with prior diagnoses of osteochondritis and chondromalacia, but were also "highly suggestive of improvement" following his surgeries. The examiner described the examination findings as "almost negative." A VA orthopedic examination was next afforded the Veteran in April 2003. He reported recurrent right knee pain, along with stiffness, swelling, weakness, and instability. He used medication for his knee pain. No episodes of dislocation were reported. On physical examination, the Veteran ambulated slowly, favoring his right leg. He did not use an assistance device. The right knee was slightly swollen and puffy in appearance, with several well-healed surgical scars present. Range of motion testing indicated flexion to 95 degrees and extension to 5 degrees, with pain. Pain was reported with motion, but the examiner did not state any additional limitation of motion resulted from such factors as pain, pain on use, fatigability, weakness, and lack of endurance. X-rays of the right knee revealed a osteochondral articular surface defect, possibly the result of an old osteochondritis dissecans. Degenerative joint disease was also noted in the right knee. The Veteran was next afforded a VA medical examination in February 2005. He again reported recurrent right knee pain, swelling, and instability. He used medication for his pain and wore a brace on his right knee. On physical examination, his right knee was without redness, heat, or swelling. Range of motion testing revealed flexion to 130 degrees, and extension to 0 degrees, with pain reported. No additional limitation of motion was noted to result due to such factors as repetitive motion, incoordination, weakness, pain, pain with use, or fatigability. Crepitus was present on motion. McMurray's test was positive along the medial meniscus, but was otherwise negative for ligament laxity. Lachman's test was negative. Another VA orthopedic examination was afforded the Veteran in April 2005. On that occasion, his gait was within normal limits, and no abnormal weight-bearing was present. Range of motion testing indicated flexion to 120 degrees and extension to 0 degrees. No catching, grinding, or popping of the right knee joint was noted with motion. The right knee was without effusion, weakness, or instability. No quadricep wasting was observed. Ligaments were stable to varus and valgus stress. Drawer's, McMurray's, and Lachman's tests were negative. No additional limitation of motion was noted due to such factors as repetitive motion, incoordination, weakness, pain, pain with use, or fatigability. VA outpatient treatment records have also been received. A December 2000 clinical notation reflects that the Veteran walks without a limp and had full active range of motion of the right knee. His right knee was also negative for laxity to valgus/varus stress, and Lachman's test was negative. An August 2002 MRI of the right knee revealed abnormal signals in the medial meniscus posterior horn, suggestive of a tear or degeneration. The medial collateral ligament was thickened, suggestive of a prior injury. The remainder of his VA outpatient treatment records reflects his reports of right knee pain, swelling, stiffness, and weakness. As noted and discussed in greater detail above, the Veteran failed to report for a scheduled VA examination in August 2009, and gave no explanation for his absence; therefore, evidence which could have resulted from this examination is not available, and his increased rating claim must be considered solely on the basis of the current record. After considering the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent for the Veteran's residuals of a right knee injury. Considering first the diagnostic criteria for limitation of motion of the knee joint, the Veteran has not displayed limitation of either flexion or extension which would support a disability rating in excess of 10 percent, to include consideration of separate compensable ratings. During the pendency of this appeal, his extension has been no worse than 5 degrees, in April 2003, and flexion no worse than 95 degrees, also in April 2003. Neither finding supports an initial rating in excess of the 10 percent assigned for the right knee disability, as neither finding supports a compensable rating under Diagnostic Codes 5260 or 5261. As the evidence does not support compensable ratings under either Code for limitation of flexion or extension, the Board need not consider entitlement to separate ratings for limitation of both flexion and extension pursuant to VAOPGCPREC 9-2004. Furthermore, although the Veteran reports additional impairment due to such factors as pain, pain on use, fatigability, and weakness, no examiner has expressed such impairment in terms of additional limitation of motion which would further reduce his right knee range of motion; thus, an increased rating based on these factors is not warranted. See DeLuca, 8 Vet. App. at 202. Additionally, a separate rating is not warranted under Diagnostic Code 5257, as the evidence does not suggest instability or subluxation associated with his right knee disorder. Evaluation of the Veteran's knee disability under other diagnostic criteria is also not warranted, as he has not displayed ankylosis of the knee joint, or impairment of the tibia of fibula. Finally, inasmuch as the Veteran's right knee disability has demonstrated an essentially similar degree of impairment during the pendency of this appeal, a staged rating is not warranted at the present time. See Hart, 21 Vet. App. at 505. In reviewing the Veteran's increased rating claim, the Board is also aware that separate ratings are available for scars that are poorly nourished, with repeated ulceration; are tender and painful on objective demonstration; or cause any limitation of function. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition); see also 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. In the present case, the Veteran has not been awarded a separate compensable rating for his surgical scars of the right knee. According to the April 2003 examination report, his scars were well healed on examination, without evidence of underlying impairment resulting therein. Based on these findings, a separate rating is not warranted under the criteria for skin disabilities. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue. The Board observes the Veteran was employed at the commencement of this appeal, and has not required extended or frequent hospitalization for his service-connected disability during the pendency of this appeal. Additionally, no examiner has stated the Veteran's service- connected disability alone is the cause of any marked interference with employment. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability. See 38 U.S.C.A. § 1155 (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). For these reasons, referral for extraschedular consideration is not warranted. In conclusion, the preponderance of the evidence is against the award of a disability rating in excess of 10 percent for the Veteran's service-connected residuals of a right knee injury. As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for a right hip disability, on both a direct and secondary basis, is denied. Entitlement to service connection for a right hand and finger disability is denied. Entitlement to service connection for a right scapula disability is denied. Entitlement to service connection for a right posterior tibial tendon disability, on both a direct and secondary basis, is denied. Entitlement to a disability rating in excess of 10 percent for residuals of a right knee injury is denied. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs