Citation Nr: 1102001	
Decision Date: 01/18/11    Archive Date: 01/26/11

DOCKET NO.  97-29 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUES

1.  Entitlement to service connection for a left ankle disorder, 
to include as secondary to a service-connected disability 
including his service connected low back disability and/or 
service-connected bilateral pes planus.

2.  Entitlement to a higher initial rating for a right ankle 
disability rated as 0 percent disabling from March 3, 1996, and 
10 percent disabling from September 27, 2006.

3.  Entitlement to service connection for a bilateral hip 
disorder, to include as secondary to a service-connected 
disability including his service connected low back disability 
and/or service-connected bilateral pes planus.

4.  Entitlement to service connection for a bilateral knee 
disorder, to include as secondary to a service-connected 
disability including his service connected low back disability 
and/or service-connected bilateral pes planus.




REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from August 1982 to January 
1993.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from September 1996 and November 2009 rating decisions 
by the Department of Veterans Affairs (VA) Regional Office (RO) 
in Muskogee, Oklahoma.  This appeal has a long procedural history 
and in the interest of brevity, the Board will refer the reader 
to its most recent remand, dated in August 2009, for that 
history. 

In June 1998, the Veteran testified at a hearing before a 
Veterans' Law Judge who is no longer in the Board's employ.  In 
this regard, the law requires that a Board member who conducts a 
hearing must participate in the decision on appeal.  38 U.S.C.A. 
§ 7107(c) (West 2002 & Supp. 2009).  Therefore, in April 2010 the 
Veteran and his representative were notified of this fact, asked 
if the claimant wanted another hearing and instructed to return 
the letter with his decision within 30 days.  They were also told 
that a failure to respond would be taken to mean that the Veteran 
did not want another hearing before another Veterans' Law Judge.  
Neither the Veteran nor his representative responded to the 
Board's letter.  Therefore, since the time reply to the April 
2010 letter has run, the Board finds that adjudication of the 
appeal may go forward without scheduling the Veteran for another 
hearing.

The issues of service connection for a bilateral hip disorder and 
a bilateral right disorder are addressed in the REMAND portion of 
the decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The preponderance of the competent and credible evidence is 
against finding that a left ankle disorder was present in-
service, arthritis of the left ankle manifested to a compensable 
degree in the first post-service year, that a current a left 
ankle disorder is related to service, or that a current a left 
ankle disorder was caused or aggravated by a service connected 
disability including the service-connected low back disability 
and/or service-connected bilateral pes planus.

2.  From March 3, 1996, to September 26, 2006, the preponderance 
of the competent and credible evidence is against finding that 
the Veteran's right ankle disorder was manifested by moderate 
limitation of motion even taking into account his complaints of 
pain.

3.  Since September 27, 2006, the preponderance of the competent 
and credible evidence is against finding that the Veteran's right 
ankle disorder is manifested by marked limitation of motion even 
taking into account his complaints of pain.


CONCLUSIONS OF LAW

1.  A left ankle disorder was not incurred in or aggravated by 
active service, arthritis of the left ankle may not be presumed 
to have been so incurred, and a left ankle disorder was not 
caused or aggravated by a service-connected disability.  
38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5100, 5102, 5103, 5103A, 
5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.310 (2006); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010).

2.  Since March 3, 1996, the Veteran has not met the criteria for 
higher evaluations for a right ankle disorder.  38 U.S.C.A. 
§§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.40, 4.45, 4.71a, 
Diagnostic Code 5271 (2010). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

Under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant 
of the information and evidence needed to substantiate and 
complete a claim, i.e., existence of a current disability, the 
degree of disability, and the effective date of any disability 
benefits.  The appellant must also be notified of what specific 
evidence he is to provide and what evidence VA will attempt to 
obtain.  VA thirdly has a duty to assist claimants in obtaining 
evidence needed to substantiate a claim.  This includes obtaining 
all relevant evidence adequately identified in the record and, in 
some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

Initially, the Board notes that in the current appeal there is no 
issue as to providing an appropriate application form or 
completeness of the application.  

As to the claim of service connection for a left ankle disorder, 
the Board finds that the Veteran was not provided written notice 
that fulfills the provisions of 38 U.S.C.A. § 5103(a) prior to 
the September 1996 rating decision.  Nonetheless, the Board finds 
that the written notice provided the Veteran in the April 2006 
and October 2008 letters fulfills the provisions of 38 U.S.C.A. 
§ 5103(a) including notice of the regulations governing 
disability ratings and effective dates as required by the United 
States Court of Appeals for Veterans Claims (Court) in Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  Moreover, the Board finds 
that the subsequent readjudication of the claim in the April 2006 
and January 2009 supplemental statements of the case "cures" 
any timing problem associated with inadequate notice or the lack 
of notice prior to an initial adjudication.  Mayfield v. 
Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing 
Mayfield II, 444 F.3d at 1333-34.  

As to the claim for a higher evaluation for a right ankle 
disability, the Board notes that the Veteran is challenging the 
initial evaluation assigned following the grant of service 
connection for this disability.  In Dingess, supra, the Court 
also held that in cases where service connection has been granted 
and an initial disability evaluation has been assigned, the 
typical service-connection claim has been more than 
substantiated, it has been proven, thereby rendering § 5103(a) 
notice no longer required because the purpose that the notice is 
intended to serve has been fulfilled.  Id, at 490-91; Also see 
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. 
Nicholson, 21 Vet. App. 112 (2007).   Thus, because the notice 
that the Veteran was provided before service connection was 
granted was legally sufficient (i.e., the April 2006 and October 
2008 38 U.S.C.A. § 5103(a) notice letters provided to the Veteran 
prior to the November 2009 rating decision), VA's duty to notify 
in this case has been satisfied.  

As to all the issues on appeal, the Board finds that even if the 
above letters did not provide adequate 38 U.S.C.A. § 5103(a) 
notice that this notice problem does not constitute prejudicial 
error in this case because the record reflects that a reasonable 
person could be expected to understand what was needed to 
substantiate the claims after reading the above letters as well 
as the rating decisions, statements of the case, supplemental 
statements of the case, Court Order, and Board remands.  See 
Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

As to the duty to assist, the Board finds that VA has secured all 
available and identified pertinent evidence and conducted all 
appropriate development.  Specifically, the record shows that VA 
has obtained and associated with the claims files all available 
and identified in-service and post-service records including the 
Veteran's post-service records from the Social Security 
Administration (SSA) and the Oklahoma VA Medical Center.  

As to the claim of service connection for a left ankle disorder, 
the Veteran was most recently afforded VA examinations in 
November 2008 and September 2009 which, contrary to the Veteran's 
representative's September 2010 letter, are adequate to allow the 
Board to adjudicate the claims because the examiners, after a 
review of the record on appeal and an examination of the 
claimant, provided opinions as to the origins of his disability.  
See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 
312 (2007) (holding that when VA undertakes to provide a VA 
examination or obtain a VA opinion, it must ensure that the 
examination or opinion is adequate).  For the same reasons, the 
Board also finds that the November 2008 and September 2009 VA 
examinations substantially complies with the Board's September 
2008 and August 2009 remand directives because the examiners 
provided clear opinions as to whether the Veteran's disabilities 
were caused by military service and/or caused or aggravated by 
one of his service connected disabilities including his low back 
disability and pes planus.  See Dyment v. West, 13 Vet. App. 141 
(1999); D'Aries v. Peake, 22 Vet. App. 97 (2008).

As to the claim for a higher evaluation for a right ankle 
disability, the Veteran was also afforded VA examinations in 
February 1993, August 1996, September 2006, November 2008, and 
October 2009.  Moreover, the Board finds that these examinations, 
contrary to the Veteran's representative's September 2010 letter, 
are adequate for rating purposes because after a review of the 
record on appeal the examiners conducted comprehensive 
examinations of the claimant that allows the Board to rate the 
severity of his disability under all relevant Diagnostic Codes.  
See 38 U.S.C.A. § 5103A(d); Barr, supra.

Lastly, the Board notes that in a March 2010 letter, the 
Veteran's representative inquired about his December 2009 request 
for a Decision Review Officer (DRO) review of claim for a higher 
evaluation for a right ankle disability and his request for 
copies of the most recent records added to the claims files.  In 
this regard, the Board notes that the February 2010 statement of 
the case was prepared by a DRO and the Board in June 2010 
provided the Veteran's representative with copies of the 
requested records.  Therefore, no further delay in adjudicating 
the Veteran's appeal is required to satisfy these inquires. 

In summary, the facts relevant to this appeal have been properly 
developed and there is no further action to be undertaken to 
comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 
38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced 
as a result of the Board proceeding to the merits of the appeal.  
See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

The Service Connection Claim

The Veteran contends that his left ankle disorder was caused by 
his military service and/or by one of his service connected 
disabilities including his low back disability and/or service-
connected bilateral pes planus.  It is also requested that the 
Veteran be afforded the benefit of the doubt. 

In this regard, service connection is warranted where the 
evidence of record establishes that a particular injury or 
disease resulting in disability was incurred in the line of duty 
in the active military service or, if pre-existing such service, 
was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  Service connection may also be granted for any disease 
diagnosed after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was incurred 
in service.  38 C.F.R. § 3.303(d).  Other specifically enumerated 
disease processes, including arthritis, if manifest to a degree 
of 10 percent within one year after separation from active duty, 
may be presumed to have been incurred in service.  38 U.S.C.A. 
§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Service connection may also be granted where disability is 
proximately due to or the result of already service-connected 
disability.  38 C.F.R. § 3.310.  Compensation is payable when 
service-connected disability has aggravated a non-service-
connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995) (en 
banc).

The Board notes that there was a recent amendment to the 
provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 
(Sept. 7, 2006).  The amendment sets a standard by which a claim 
based on aggravation of a non-service-connected disability by a 
service-connected one is judged.  Although VA has indicated that 
the purpose of the regulation was merely to apply the Court's 
ruling in Allen, it was made clear in the comments to the 
regulation that the changes were intended to place a burden on 
the claimant to establish a pre-aggravation baseline level of 
disability for the non-service-connected disability before an 
award of service connection based on aggravation may be made.  
This had not been VA's practice, which suggests the possibility 
that the recent change amounts to a substantive change in the 
regulation.  For this reason, and because the Veteran's claim was 
pending before the regulatory change was made, the Board will 
consider the version of 38 C.F.R. § 3.310 in effect before the 
change, which is more favorable to the claimant.

In evaluating the evidence in any given appeal, it is the 
responsibility of the Board to weigh the evidence and decide 
where to give credit and where to withhold the same and, in so 
doing, accept certain medical opinions over others.  Schoolman v. 
West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board 
has been charged with the duty to assess the credibility and 
weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 
(Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. 
Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 
2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. 
West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that 
in adjudicating a claim, the Board has the responsibility to do 
so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. 
Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board 
is free to favor one medical opinion over another, provided it 
offers an adequate basis for doing so.  Evans v. West, 
12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 
(1995).  

As to service incurrence under 38 C.F.R. § 3.303(a), the Board 
notes that August 1988 service treatment records noted that the 
Veteran was going to be taken off of his profile for left and 
right ankle supports.  Thereafter, an April 1992 service 
treatment record, without specifying which ankle was giving the 
Veteran trouble, reported his complaints of low back pain 
radiating into his ankles and ankle pain but without obvious 
ankle deformity and a normal ability to stand up and down.  The 
Veteran was nonetheless assessed with "chronic problems."  
Similarly, a June 1992 service treatment records once again noted 
the Veteran's complaints of back pain radiating into his ankles.  
Furthermore, the Board finds that the Veteran is both competent 
and credible to report on the fact that he had problems with left 
ankle pain, swelling, instability, and/or limitation of motion 
while on active duty because these symptoms are observable by a 
lay person.  Davidson, supra; Buchanan, supra; Jandreau, supra; 
Charles, supra.  

However, the Board notes that service treatment records, 
including a September 1988 examination, are negative for 
objective evidence of a left ankle injury and/or the Veteran 
being diagnosed with a specific and chronic disease process of 
the left ankle despite the August 1988 service treatment record 
noting his use of a brace and the April 1992 service treatment 
record noting chronic problems.  Moreover, the Board finds more 
credible the service treatment records that are negative for 
complaints, diagnoses, or treatment for a chronic left ankle 
disability or injury than the Veteran's claims to the contrary.  
See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 
1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the 
absence of medical treatment for the claimed condition for many 
years after service); Forshey v. West, 12 Vet. App. 71, 74 
(1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 
(Fed. Cir. 2002) (noting that the definition of evidence 
encompasses "negative evidence" which tends to disprove the 
existence of an alleged fact).  Accordingly, entitlement to 
service connection for a left ankle disorder based on in-service 
incurrence must be denied despite the Veteran's claims of having 
experienced left ankle problems while on active duty. 
 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309, the 
Board notes that there is no evidence in the record of the 
Veteran being diagnosed with arthritis of the left ankle within 
one year of service separation.  Accordingly, entitlement to 
service connection for a left ankle disorder on a presumptive 
basis must also be denied.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§§ 3.303, 3.307, 3.309.

As to post-service continuity of symptomatology under 38 C.F.R. 
§ 3.303(b), the Board notes that that the Veteran was provided a 
number of VA examinations shortly after his January 1993 
separation from active duty, including ones held in February 
1993, December 1994, October 1995, and August 1996.  Moreover, 
the Veteran complained of ankle sprains and/or pains at the 
February 1993 and October 1995 VA examinations.  However, while 
the February 1993 VA examiner noted a "history" of intermittent 
symptomatic ankles with normal x-rays, the first time that the 
record documents his being diagnosed with a left ankle disorder 
is in 1995.  Specifically, August 1995, September 1995, November 
1995, December 1995 VA treatment records document the Veteran's 
complaints and treatment for ankle weakness and/or pain, 
diagnosed as degenerative joint disease in December 1995.  A 
subsequent x-ray at the August 1996 VA examination thereafter 
confirmed degenerative changes in the left ankle.

The Board finds that the length of time between the Veteran's 
separation from active duty in January 1993 and first being 
diagnosed with a left ankle disorder in December 1995 to be 
compelling evidence against finding continuity.  Put another way, 
the almost three year gap between the Veteran's discharge from 
active duty and the first objective evidence of the claimed 
disorder weighs heavily against his claim especially in light of 
the fact that his first post-service x-rays, taken at the 
February 1993 VA examination, were normal.  See Maxson, supra; 
Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA 
did not err in denying service connection when the Veteran failed 
to provide evidence which demonstrated continuity of 
symptomatology, and failed to account for the lengthy time period 
for which there is no clinical documentation of his low back 
condition); Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's 
delay in asserting a claim can constitute negative evidence that 
weighs against the claim).

In this regard, the Board acknowledges, as it did above, that the 
Veteran is competent to give evidence about what he sees and 
feels; for example, the claimant is competent to report that he 
had problems with left ankle pain, swelling, and/or limitation of 
motion since service.  See Davidson, supra; Buchanan, supra; 
Jandreau, supra; Charles, supra.  The Board also acknowledges 
that the Veteran's representative is competent to give evidence 
about what he sees.

However, upon review of the claims folders, the Board finds that 
the Veteran's and his representative's assertions that the 
claimant has had his current left ankle disorder since service 
are not credible.  In this regard, the Veteran and his 
representative's claims are contrary to what is found in the in-
service and post-service medical records.  In these 
circumstances, the Board gives more credence and weight to the 
medical evidence of record, which is negative for a diagnosis for 
the left ankle disorder for almost three years following his 
separation from active duty, than the Veteran's and his 
representative's claims.  Therefore, entitlement to service 
connection for a left ankle disorder based on post-service 
continuity of symptomatology must be denied.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(b).

As for service connection based on the initial documentation of 
the disability after service under 38 C.F.R. § 3.303(d), the 
Board notes that the record is negative for a medical opinion 
finding a causal association or link between the Veteran's left 
ankle disorder and an established injury, disease, or event of 
service origin.  See 8 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); 
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing 
service connection requires finding a relationship between a 
current disability and events in service or an injury or disease 
incurred therein).  In fact, the physician at the Veteran's 2009 
VA examination opined, after a review of the record on appeal 
which document post-service treatment for ankle pain as early as 
1993, that because there is no evidence that the claimant was 
treated for a left ankle condition while on active duty that it 
was less likely than not that his current left ankle disability 
began during or is otherwise linked to any incident during his 
military service.  While the September 2006 VA examiner earlier 
reported that he was unable to say without resort to speculation 
whether the Veteran's current degenerative joint disease of the 
ankle had its origins in service given the fact that the claimant 
is obese and obesity predisposes one to get degenerative 
arthritis, the 2009 VA examiner's opinion is not contradicted by 
any other medical opinion of record.  See Colvin v. Derwinski 1 
Vet. App. 171, 175 (1991) (VA may only consider independent 
medical evidence to support its findings and is not permitted to 
base decisions on its own unsubstantiated medical conclusions).

As to the Veteran's and his representative's assertions that the 
left ankle disorder was caused by his military service, the Board 
once again acknowledges that the claimant is competent to give 
evidence about what he sees and feels and his representative is 
competent to give evidence about what he sees.  See Davidson, 
supra; Buchanan, supra; Jandreau, supra; Charles, supra.  
Nonetheless, that Board also finds that special medical training 
and experience is required to find a link between a current 
disability and the Veteran's military service.  Id.  Therefore, 
since laypersons are not capable of opining on matters requiring 
medical knowledge, the Board finds that their opinions that a 
left ankle disorder was caused or aggravated by his military 
service are not credible.  Routen v. Brown, 10 Vet. App. 183, 186 
(1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 
1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. 
West, 11 Vet. App. 124, 127 (1998).   Moreover, the Board finds 
more competent and credible the medical opinions provided by the 
September 2009 VA examiner that this disorder was not caused by 
the Veteran's military service, than these lay claims.  See Black 
v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the 
probative value of medical statements, the Board looks at factors 
such as the individual knowledge and skill in analyzing the 
medical data). 

Therefore, the Board also finds that service connection for a 
left ankle disorder is not warranted based on the initial 
documentation of the disability after service because the weight 
of the competent and credible evidence is against finding a 
causal association or link between the post-service disorder and 
an established injury, disease, or event of service origin.  See 
8 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau, supra.

As for service connection based on secondary service connection 
under 38 C.F.R. § 3.310, in a March 2009 VA treatment record a 
physician's assistant opined that it is as likely as not that his 
problem with his feet may cause or aggravate his ankle problems.  
Moreover, the Veteran's and his representative have asserted that 
the claimant's left ankle disorder was caused or aggravated by a 
service connected disability including his low back disability 
and/or pes planus. 

On the other hand, at the August 1996 VA examination, after a 
review of the record on appeal and an examination of the 
claimant, the physician opined that there is no etiology 
relationship between the Veteran's symptomatic ankles and pes 
planus and low back symptoms of his degenerative joint disease.  
Similarly, at the September 2006 VA examination, after a review 
of the record on appeal and an examination of the claimant, the 
physician opined that "currently there is no medical evidence to 
suggest that the current disability [i.e., left ankle arthritis] 
was caused or aggravated by the Veteran's service connected low 
back disability or his service connected disability bilateral pes 
planus."  Likewise, the November 2008 VA examiner, after a 
review of the record on appeal, opined that her review of the 
record did not reveal an unsteady abnormal gait from his service 
connected pes planus and/or low back disability "that can lead 
to osteoarthritis of joints.  Therefore, it is the examiner's 
opinion that it is less likely than not that any . . . ankle 
disorder was caused or aggravated by the Veteran's service 
connected low back disability or his service connected pes 
planus."  (Parenthetically, the Board notes that while this 
opinion was provided by a nurse practitioner, it was also signed 
off on by a physician).  Furthermore, in a June 2009 VA treatment 
record from a different nurse practitioner, it was reported that 
she declined to sign a letter provided by the claimant which 
would report that his ankle pain was due to his service connected 
pes planus.  

The Board finds more competent and credible the above opinions 
provided by the Veteran's VA examiners that his left ankle 
disability was not caused or aggravated by a service connected 
disability than the March 2009 opinion provided by his VA 
physician's assistant that it was because the VA examiners 
opinion were based on a review of the record on appeal by medical 
doctors and because these opinions provided reasons and bases for 
their conclusions along with a citation to relevant in-service 
and post-service medical evidence found in the record to support 
the conclusions.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) 
(holding that VA may favor the opinion of one competent medical 
expert over that of another when decision makers give an adequate 
statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 
467, 473 (1993) ("the probative value of medical opinion evidence 
is based on the medical expert's personal examination of the 
patient, the physician's knowledge and skill in analyzing the 
data, and the medical conclusion the physician reaches....  As is 
true with any piece of evidence, the credibility and weight to be 
attached to these opinions [are] within the province of the 
[Board as] adjudicators. . ."); Black v. Brown, 5 Vet. App. 177, 
180 (1995) (holding that a medical opinion is inadequate when it 
is unsupported by clinical evidence); Bloom v. West, 13 Vet. App. 
185, 187 (1999) (a medical opinion based on speculation, without 
supporting clinical data or other rationale, does not provide the 
required degree of medical certainty).

As to the Veteran's and his representative's assertions, the 
Board once again acknowledges that the claimant is competent to 
give evidence about what he sees and feels and his representative 
is competent to give evidence about what he sees.  See Davidson, 
supra; Buchanan, supra; Jandreau, supra; Charles, supra.   
Nonetheless, that Board also finds that special medical training 
and experience is required to provide a competent and credible 
medical opinion as to a link between an already service connected 
disability and the Veteran's current left ankle disability.  Id.  
Therefore, since laypersons are not capable of opining on matters 
requiring medical knowledge, the Board finds that their opinions 
that a left ankle disorder was caused or aggravated by a service 
connected disability including his low back disability and/or pes 
planus are not credible.  Routen, supra; see also Bostain, 
supra.   Moreover, for the reasons explained above, the Board 
finds more competent and credible the medical opinions provided 
by the above VA examiners that this disorder was not caused or 
aggravated by the Veteran's service connected disabilities than 
these lay claims.  See Black, supra. 

Based on the discussion above, the Board also finds that service 
connection for a left ankle disorder is not warranted based on it 
being caused or aggravated by a service connected disability 
including the Veteran's low back disability and/or pes planus 
because the weight of the competent and credible evidence is 
against finding such a causal association or link between the 
current disability and a service connected disability.  See 
8 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310; Allen, supra.

Accordingly, the Board must conclude that the weight of the 
evidence is against the claim of service connection for a left 
ankle disorder on a direct and secondary basis.  See 38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310.  



The Higher Evaluation Claim

The Veteran asserts that his right ankle disability meets the 
criteria for higher evaluations.  It is also requested that the 
Veteran be afforded the benefit of the doubt.

Disability evaluations are determined by the application of a 
schedule of ratings which is based, as far as can practically be 
determined, on the average impairment of earning capacity.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected 
disability is rated on the basis of specific criteria identified 
by Diagnostic Codes.  38 C.F.R. § 4.27.  When rating the 
Veteran's service-connected disability, the entire medical 
history must be borne in mind.  Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).  The Court has held that a claimant may 
experience multiple distinct degrees of disability that might 
result in different levels of compensation from the time the 
increased rating claim was filed until a final decision is made.  
Hart v. Mansfield, 21 Vet. App. 505 (2007).  Separate compensable 
evaluations may be assigned for separate periods of time if such 
distinct periods are shown by the competent evidence of record 
during the appeal, a practice known as "staged" ratings.  See 
Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of 
two evaluations is to 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.

When evaluating loss in range of motion, consideration is given 
to the degree of functional loss caused by pain.  DeLuca v. 
Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal 
disorders rated on the basis of limitation of motion requires 
consideration of functional losses due to pain).  In DeLuca, the 
Court explained that, when the pertinent diagnostic criteria 
provide for a rating on the basis of loss of range of motion, 
determinations regarding functional losses are to be 
"'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of 
additional range-of-motion loss due to pain on use or during 
flare-ups."  Id, at 206.

The November 2009 rating decision granted service connection for 
a right ankle disorder and rated it as noncompensable under 
38 C.F.R. § 4.71a, Diagnostic Code 5271 (limitation of motion of 
the ankle), effective from March 3, 1996, and 10 percent 
disabling effective from September 27, 2006.

Diagnostic Code 5271 provides a 10 percent rating for moderate 
limitation of ankle motion and a 20 percent rating for a marked 
limitation of motion.  38 C.F.R. § 4.71a.  

The Period from March 3, 1996, to September 26, 2006.

With the above criteria in mind, the Board notes that the Veteran 
and/or his representative in writings and/or testimony to VA 
claimed that the appellant throughout this period of time had 
ever increasing problems with right ankle pain, swelling, and/or 
limitation of motion.  Moreover, treatment records generated 
during this time periodically shows the Veteran's complaints 
and/or treatment for right ankle pain, swelling, and/or 
limitation of motion.  

However, the range of motion of the right ankle at the February 
1993 and August 1996 VA examinations was full without pain or 
crepitus.  (Normal range of motion of the ankle is 0 to 20 
degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  
See 38 C.F.R. § 4.71a, Plate II).  Similarly, the range of motion 
of the right ankle in a February 1998 private treatment record 
was 30/30 degrees of inversion, 20/20 degrees of eversion, 40/40 
degrees of plantar flexion, and 20/20 degrees of dorsal flexion.  
Moreover, these opinions as to the range of motion of the right 
ankle are not contradicted by any other medical evidence of 
record.  Colvin, supra.  

Additionally, while the Board acknowledges that the Veteran's is 
competent and credible to report on having ankle pain and 
limitation of motion because these symptoms are observable by a 
lay person, the Board finds more competent and credible the 
treatment records found in the record which are negative for 
objective evidence of additional limitation of motion of the 
right ankle being caused by his pain, than the Veteran's lay 
assertions.  See Davidson, supra; Buchanan, supra; Jandreau, 
supra; Charles, supra; Also see Maxson, supra; Black, supra.  In 
fact, the Board notes that the August 1996 VA examiner opined 
that ankle appeared normal. 

Given the above, the Board finds that even when considered the 
Veteran's complaints of right ankle pain in light of 38 C.F.R. 
§§ 4.40, 4.45, and the Court's holding in DeLuca, supra, the 
clinical evidence of record does not show that the right ankle 
disability, which at its worst resulted in 5 degrees of lost 
plantar flexion, is manifested by adverse symptomatology that 
equates to "moderate" limitation of motion of the right ankle.  
Accordingly, a compensable evaluation is not warranted under 
Diagnostic Code 5271.  See 38 C.F.R. § 4.71a.  This is true from 
March 3, 1996, to September 26, 2006, and therefore further 
consideration of staged ratings is not warranted.  Fenderson, 
supra.

The Period since September 27, 2006

In this regard, the Veteran and/or his representative continue to 
claim that the appellant has had ever increasing problems with 
right ankle pain, swelling, and/or limitation of motion.  
Moreover, treatment records generated during this time 
periodically shows the Veteran's complaints and/or treatment for 
right ankle pain, swelling, and/or limitation of motion.  
Additionally, the range of motion of the right ankle at the 
September 26, 2006, VA examination was 0 to 20 degrees of 
dorsiflexion and 0 to 45 degrees of plantar flexion with pain 
starting at 18 degrees of dorsiflexion and 42 degrees of plantar 
flexion as well as with pain on palpation.  It was thereafter 
opined that repetitive use did not cause any additional 
limitation of motion either by pain, fatigue, weakness, or lack 
of endurance.  Likewise, at the November 2008 VA examination, the 
range of motion of the right ankle was 0 to 20 degrees of 
dorsiflexion and 0 to 40 degrees of plantar flexion with pain 
starting at 40 degrees of plantar flexion and with pain on 
palpation.  It was thereafter opined that with repetition there 
was no change of function in degrees secondary to pain, fatigue, 
or lack of endurance.  Similarly, at the October 2009 VA 
examination, the range of motion of the right ankle was 0 to 20 
degrees of dorsiflexion and 0 to 35 degrees of plantar flexion 
with pain starting at 20 degrees of dorsiflexion and 30 degrees 
of plantar flexion as well as pain on palpation.  It was 
thereafter opined that with repetition of range of motion there 
was no change of function in degrees secondary to pain, fatigue, 
or lack of endurance. 

Initially, the Board finds that the above VA examiners opinions 
as to the range of motion of the right ankle are not contradicted 
by any other medical evidence of record.  Colvin, supra.  
Additionally, while the Board acknowledges that the Veteran's is 
competent and credible to report on having ankle pain and 
limitation of motion because these symptoms are observable by a 
lay person, the Board finds more competent and credible the 
treatment records found in the record which are negative for 
objective evidence of additional limitation of motion of the 
right ankle being caused by his pain, than the Veteran's lay 
assertions.  See Davidson, supra; Buchanan, supra; Jandreau, 
supra; Charles, supra; Also see Maxson, supra; Black, supra.  In 
fact, at the September 27, 2006, VA examination, while the 
Veteran complained of pain, stiffness, and swelling and the 
examiner opined that he had some tenderness, painful motion, and 
guarding, the examiner also opined that there was no objective 
evidence of edema, effusion, instability, redness, heat, or 
abnormal movement.  Likewise, at the November 2008 VA 
examination, while the Veteran complained of pain, stiffness, 
occasional locking, fatigability, and lack of endurance, he 
denied having a problem with swelling, heat, or redness and on 
examination there was no evidence of laxity.  Similarly, at the 
October 2009 VA examination, while the Veteran complained of 
ankle pain, instability, weakness, numbness, swelling with heat, 
crepitus, and fatigue, on examination there was no evidence of 
erythema, edema, increased warmth, or effusion.

Given the above, the Board finds that even when considered the 
Veteran's complaints of right ankle pain in light of 38 C.F.R. 
§§ 4.40, 4.45, and the Court's holding in DeLuca, supra, the 
clinical evidence of record does not show that the right ankle 
disability, which at its worst resulted in 2 degrees of lost 
dorsiflexion and 15 degrees of lost plantar flexion, is 
manifested by adverse symptomatology that equates to "marked" 
limitation of motion of the right ankle.  Accordingly, a higher 
evaluation is not warranted under Diagnostic Code 5271.  See 
38 C.F.R. § 4.71a.  This is true throughout this period of time 
and therefore further consideration of staged ratings is not 
warranted.  Fenderson, supra.

Other Rating Concerns

Based on the Veteran's and his representative's written 
statements to the RO, the Board will considered the application 
of 38 C.F.R. § 3.321(b)(1) (2010).  Although the Veteran and his 
representative claim that the rating schedule does not adequately 
compensate the claimant for the problems caused by his right 
ankle disorder, the evidence does not objectively show an 
exceptional or unusual disability picture as would render 
impractical the application of the regular schedular rating 
standards.  Id.  There simply is no objective evidence that his 
right ankle disorder, acting alone, has resulted in frequent 
periods of hospitalization or in marked interference with 
employment.  

It is undisputed that this disability affects employment, but it 
bears emphasis that the schedular rating criteria are designed to 
take such factors into account.  The schedule is intended to 
compensate for average impairments in earning capacity resulting 
from service-connected disability in civil occupations.  
38 U.S.C.A. § 1155.  "Generally, the degrees of disability 
specified in the rating schedule are considered adequate to 
compensate for considerable loss of working time from 
exacerbations or illnesses proportionate to the severity of the 
several grades of disability."  38 C.F.R. § 4.1.  Therefore, 
given the lack of objective evidence showing unusual disability 
not contemplated by the rating schedule, the Board concludes that 
the criteria for submission for extra-schedular consideration 
pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Thun v. 
Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 
(1996).

In adjudicating the current appeal for a higher evaluation for a 
right ankle disorder, the Board has also not overlooked the 
Court's recent holding in Rice v. Shinseki, 22 Vet. App. 447 
(2009) (per curiam) (holding that claims for higher evaluations 
also include a claim for a total rating based on individual 
unemployability (TDIU) when the appellant claims he is unable to 
work due to a service connected disability).  However, the Board 
finds that Rice is not applicable to the current appeal because 
the Veteran has never claimed that his right ankle disorder 
prevents him from obtaining and/or maintaining employment.  
Therefore, the Board finds that the current decision need not 
consider whether the Veteran meets the criteria for a TDIU.

Conclusion

In adjudicating the current appeal, the Board has also considered 
the doctrine of reasonable doubt.  However, as the preponderance 
of the evidence is against the Veteran's claims, the Board finds 
that the doctrine is not for application.  38 U.S.C.A. § 5107(b) 
(West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  Accordingly, the claims must be denied. 


ORDER

Entitlement to service connection for a left ankle disorder, to 
include as secondary to a service-connected disability including 
the service connected low back disability and/or service-
connected bilateral pes planus, is denied.

A compensable rating for a right ankle disability is not 
warranted at any time from March 3, 1996, through September 26, 
2006, and a rating in excess of 10 percent for a right ankle 
disability is not warranted at any time since September 27, 2006.


REMAND

As to entitlement to service connection for bilateral hip and 
knee disorders, the Board notes that since issuance of the 
October 2009 supplemental statement of the case (SSOC) the RO 
obtained and associated with the record additional VA treatment 
records dated from October 2009 to February 2010 that, among 
other things, show his complaints and treatment for hip and knee 
pain.  However, the RO did not thereafter issue another SSOC.  
See 38 C.F.R. § 19.31 (2010).  Moreover, a review of the record 
on appeal does not show that the Veteran or his representative 
waived RO review of this evidence.  See 38 C.F.R. § 20.1304(c) 
(2010).  Therefore, because these records contain additional 
pertinent evidence, these issues must be remanded for a SSOC.  

Accordingly, these issues are REMANDED to the RO for the 
following actions:

1.  The RO should provide the Veteran and 
his representative with a SSOC.  The SSOC 
must contain notice of all relevant actions 
taken on the claims for benefits since the 
October 2009 SSOC, to include the October 
2009 to February 2010 VA treatment records, 
any evidence not received, and all 
applicable laws and regulations considered 
pertinent to the issues currently on 
appeal.

2.  The RO should thereafter provide the 
Veteran and his representative with updated 
VCAA notice as to what evidence has been 
received and not received by VA as well as 
notice of the evidence needed to 
substantiate his claims in accordance with 
the Court's holding in Dingess, supra, and 
38 U.S.C.A. §§ 5100, 5103; 38 C.F.R. 
§ 3.159.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).



These claims must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by the 
Court for additional development or other appropriate action must 
be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 
7112 (West Supp. 2009).



____________________________________________
MATTHEW D. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs