Citation Nr: 1137331 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 04-23 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 20 percent for service connected residuals of a crush injury to the left great and second toes. [The issues of entitlement to service connection for joint pain, to include as due to an undiagnosed illness, entitlement to service connection for memory loss, to include as due to an undiagnosed illness, and entitlement to service connection for fatigue, to include as due to an undiagnosed illness, will be addressed in a separate decision.] REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1985 to January 1986 and from January 1991 to July 1997, which included service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Waco, Texas, Regional Office (ROs) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2006, and a transcript of this hearing is of record. In November 2006, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran VA examinations. The action specified in the November 2006 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran does not suffer from posttraumatic stress disorder (PTSD). 2. The Veteran's residuals of a crush injury to the left great and second toes result in no more than a moderately severe disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.304 (2010). 2. The criteria for entitlement to a disability rating in excess of 20 percent for service connected residuals of a crush injury to the left great and second toes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Codes 5099-5022, 5284 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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) (2010). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2010). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2010). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)). There is conflicting evidence of record as to whether the Veteran has PTSD and, if so, whether it is related to service. The record shows extensive psychiatric treatment for various psychiatric disorders, including PTSD, bipolar disorder, depressive disorder, schizoaffective disorder, and a personality disorder. If PTSD is present, it was also unclear whether it is due to events which occurred in service. Several medical professionals diagnosed the Veteran with PTSD based on his having seen numerous dead bodies while traveling down the "Highway of Death" during the Gulf War. On the other hand, several medical professionals diagnosed the Veteran with PTSD after he reported numerous non-service related stressors. These stressors include an incident in which the Veteran witnessed a close friend get killed after falling underneath a train, the death of a girl friend, the death of two daughters, and childhood abuse. Because of the conflicting evidence, the case was remanded to afford the Veteran a VA examination to determine whether or not the Veteran has PTSD based solely on his in-service stressors as opposed to non-service related stressors. The Veteran was afforded a VA examination in January 2007. In her report, the examiner noted that the Veteran's responses were "rambling, disconnected, [and] seemed to be based in tangential thinking. He could not or would not address specific questions [and] gave disconnected references to symptoms...." The examiner concluded that "[the Veteran's] rambling, circumstantial thought mode precludes valid psychological testing, and he is, in my opinion, not a reliable reporter at this time." While the examiner could not definitively determine the cause of this cognitive impairment, she noted that it was "highly suggestive of drug influence." Regarding whether or not the Veteran has PTSD, the examiner reported: My impression is that [the Veteran] is attempting to convey symptomotology of PTSD that he has read about. His references to actual experiences in the military do not constitute experiences that normally result in PTSD. It may be that he has obsessed about these things long enough that he is incorporating them in his memory in a confabulation process. He now refers to his time in the military as "my career." Such a conclusion or reliance on other possible explanations would involve pure speculation. His presentation suggests chronic drug use, but I cannot attest to current use. He is not a reliable reporter, and objective evidence fails to show PTSD symptoms intrusive in his life. The examiner concluded that the Veteran does not meet the DSM-IV criteria for PTSD. She diagnosed him with chronic polysubstance dependence, current usage not known; history of bipolar disorder; and personality disorder not otherwise specified with antisocial and narcissistic traits. In February 2008, the Veteran was afforded a comprehensive VA neuro-psychological examination. The examiner found "little evidence in VA records from Roseburg of PTSD or Gulf War syndrome." The examiner noted that the Veteran did not report any perceived threats to himself during his service in Southwest Asia nor did the Veteran report any of the non-service connected stressors he has discussed in the past such as the deaths of his girlfriend, close friend, and daughters, as well as childhood abuse, despite attempts to elicit such information. The examiner noted that due to the Veteran's often rambling and tangential speech, it was difficult to get a clear history. The examiner concluded that there was insufficient evidence to support a PTSD diagnosis and that any residuals PTSD symptoms were not related to the Veteran's active military service. The examiner also diagnosed the Veteran with early onset dementia, major depression, and a history of alcohol dependence, as well as a personality disorder-narcissistic and antisocial mixed type. The VA examiner concluded that "on balance, objective findings rebut the Veteran's contention about the disabling effects of Gulf War Syndrome on chronic unemployability, and objective evidence points towards unemployability from chronic alcoholism and Axis II [personality] disorders as suggested by other examiners and psychiatric nurse practitioners medicating the Veteran's mental illnesses." Although the Veteran attributed his long history of substance abuse to his military service, the examiner rejected this assertion. Based on all the above evidence, the Board finds that, while there are indications of PTSD in the Veteran's record, the overall most competent evidence of record, based on the Board's detailed review of the evidence, is that the Veteran does not have PTSD. The Board acknowledges that VA treatment records contain diagnoses of PTSD; however, the Board finds the opinions of the January 2007 and February 2009 VA examiners to be more probative. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated: 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 that 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 adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board finds that the January 2007 and February 2009 examination reports are far more comprehensive than the VA treatment notes that simply list a diagnosis of PTSD without explaining how that diagnosis was reached. Additionally, in determining that the Veteran does not suffer from PTSD, the Board has also considered the evidence of record as it relates to the Veteran's credibility, or in this case, the lack thereof. The Veteran's reports of service and non-service related stressors reflect numerous inconsistencies. For example, in the past, the Veteran described a number of traumatic, non-service events, including the death of his girlfriend, Beth, the death of a friend, Jeff, the death of two daughters, and childhood abuse. However, he failed to report these incidents at VA psychological examinations in January 2007 or February 2009. In fact, at his February 2009 VA examination, the Veteran reported that he had "great parents and a great childhood." The Veteran also failed to report any head injuries at these examinations, although VA treatment records show treatment for head trauma in August 1999 and November 2002. Furthermore, although the Veteran has attributed his current psychological distress and impaired functioning to his Gulf War service, the Veteran's service personnel records indicate a conviction for burglary, theft, battery, and armed robbery in February 1976, many years before his enlistment, and in March 1987, several years prior to his deployment, the Veteran was reassigned due to unsatisfactory performance, specifically, nine unexcused absences from military obligations. The Veteran has frequently been characterized by VA examiners and treatment providers as an unreliable historian. In December 2002, a VA staff physician noted a "lack of honesty and truthfulness on the part of the Veteran in attempts to obtain a cogent and truthful history of both his medical as well as his psychiatric background." In September 2005, a VA staff psychiatrist described a "long standing problem with dishonesty. His story of his life, both as to verifiable details (such as some of his substance abuse) and unverifiable details (such as details of his military service) seems to be different pretty nearly every time someone questions him about it." In addition, vocational rehabilitation notes from June and July 2001 reflects a concern on the part of the Veteran's counselor that he has a sense of "entitlement" to VA benefits, as well as a tendency on the part of the Veteran to make exaggerated and grandiose statements. In her January 2007 examination report, the VA examiner opined, "My impression is that [the Veteran] is attempting to convey symptomotology of PTSD that he has read about. His references to actual experiences in the military do not constitute experiences that normally result in PTSD. It may be that he has obsessed about these things long enough that he is incorporating them in his memory in a confabulation process." Given the Veteran's long history of heavy substance abuse and mental illness, it is quite possible that the Veteran's inconsistencies and exaggerations are a reflection of his mental impairment, rather than deliberate deceitfulness, or both, but regardless, the Board must find that the Veteran's testimony is totally unreliable and as such, entitled to little weight. This includes the Veteran's testimony concerning his alleged in-service stressors and pain associated with his service connected disability. Overall, the Board finds that the Veteran's statements actually provide evidence against his own claim, undermining all claims before the VA at this time. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.). A detailed review of the Veteran's statements clearly indicates to the Board that he is not to be believed. The record makes clear that the Veteran is willing to provide untruthful statements that will assist him in obtaining additional VA compensation with little real reference to any actual problem associated with service. The Veteran himself may believe he has PTSD; however, he has not demonstrated that he has any knowledge or training in the diagnosing of such a condition. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer diagnoses or etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Board finds that the question of whether the Veteran currently has PTSD due to his military service is too complex to be addressed by a layperson. Rather it is common knowledge that the diagnosis of mental illness requires extensive training by mental health and medical professionals. Hence, the Veteran's opinion is not competent evidence and is entitled to low probative weight. For all of the above reasons, entitlement to PTSD is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Board has also considered the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), which found that the scope of a psychiatric disability claim includes any psychiatric disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record. However, the Board notes that the Veteran was denied service connection for alcohol abuse in a March 2003 rating decision and anxiety and schizophrenia in a January 2006 rating decision; he did not appeal. Additionally, the Veteran's claim of entitlement to service connection for memory loss has been addressed by the Board in a separate decision. The sole issue before the Board at this time is the claim of service connection for PTSD. As the issue of entitlement to service connection to a number of acquired psychiatric disabilities has already been addressed, the Board finds that it is reasonable to narrowly construe the Veteran's claim for PTSD as a claim for that specific disorder only, at this time. Regardless, even if the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD were before the Board at this time, the preponderance of the evidence is against such a claim. As noted above, although the Veteran has attributed his current psychological distress and impaired functioning to his Gulf War service, the Veteran's service personnel records indicate a conviction for burglary, theft, battery, and armed robbery in February 1976, many years before his enlistment, and in March 1987, several years prior to his deployment, the Veteran was reassigned due to unsatisfactory performance, specifically, nine unexcused absences from military obligations, indicating problems that began prior to his active service. Furthermore, the record makes clear that the Veteran is willing to provide untruthful statements that will assist him in obtaining additional VA compensation with little real reference to any actual problem associated with service. Other than the Veteran's own statements, which the Board has already determined to be without credibility, the Board can find no evidence of an etiological relationship between the Veteran's active military service and any acquired psychiatric disability that has any factual credibility. Accordingly, the Board finds that additional development is unnecessary at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2010). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2010). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran was granted entitlement to service connection for residuals of a crush injury to the left great and second toes with peripheral neuropathy in a May 1994 rating decision and assigned an initial 10 percent disability rating. In June 1995, the Veteran's disability rating was increased to 20 percent effective March 1993. The Veteran filed his current claim for an increased rating in February 2002. The Veteran's left foot disability is rated under Diagnostic Code 5284, which rates foot injuries. Foot injuries that are moderate warrant a 10 percent disability rating. If moderately severe, a 20 percent disability rating is appropriate. If the foot injury is severe, a maximum 30 percent disability rating is warranted. 38 C.F.R. § 4.71a, DC 5284. The note following DC 5284 provides that a 40 percent rating is warranted where there is actual loss of use of the foot. The Board observes that the words "moderately severe" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2010). The VA General Counsel noted in a precedent opinion dated August 14, 1998, that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 9-98. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). While the Veteran's VA treatment records reflect a history of foot injury, many complaints of left foot pain are primarily attributed to gout. The record reflects that the Veteran failed to report to a scheduled VA examination in December 2006. In May 2007, the Veteran attended a podiatry consultation. He reported a past injury that severed the second toe of the left foot, as well as a bunion deformity that was painful during ambulation and a history of gout. Examination of the foot showed an incision over the base of the intermediate phalanx of the second digit. There was erythema and edema of the distal two bone areas of the toe. The Veteran had a prominent medial eminence and dorsal eminence. There was pain on range of motion of the first metatarsophalangeal joint with grinding and crepitus. The Veteran had a bilateral flat foot deformity. X-rays showed osteoarthritic changes at both the first metatarsophalangeal joint and the distal interphalangeal joint of the second toe with cystic changes within the intermediate phalanx of the same digit. The Veteran was diagnosed with osteoarthritis and bunion deformity with pain. Possible surgical intervention was discussed and a prosthetic request was entered. In December 2008, the Veteran was afforded a VA examination of his left foot. The Veteran complained of pain and stiffness in his foot and toes, aggravated by walking on hard surfaces. He reported using a shoe insert. On examination, the heel was normally proportioned, with no calcaneal prominence or deformity suggesting old fracture or talipes deformity. There was no evidence of cuneiform exostosis or ganglion. The appearance of the skin was normal for the Veteran's age, with no ischemia or edema. The nails were not mycotic. The lesser toes were not deformed. There no callosities, hyperhidrosis, infection, pes cavus, or pes planus. Foot possible was neutral genu. Ten degrees hallux valgus, with no hallux rigidus or point tenderness. There was no pain to palpation. The Veteran had some limited range of motion of the foot and the first two toes with some pain with movement. Repeated testing did not find pain, weakness, fatigue or other DeLuca factors and the examiner was unable to determine any additional loss of motion during a flare without resorting to speculation. The Veteran had an antalgic gait and reported pain and weakness in the first and second toes, plantar arch, and dorsal after a few steps. The examiner diagnosed the Veteran with traumatic post-operative degenerative joint disease with compensatory gait alteration and hallux valgus deformity. In February 2010, the Veteran complained of left foot pain, particularly in the first three toes. There was some pain on motion and with palpation, as well as mild edema, but the Veteran was neurovascularly intact. The Veteran was assessed with a stable bunion of the left foot with metatarsalgia and neuritis. Orthopedic shoes were ordered. In May 2010, the Veteran reported that his new orthopedic shoes were helping. At a November 2010 VA examination for fibromyalgia, the Veteran reported that he walks five or six blocks a day and he was observed to walk with a mild to moderate limp, which he attributed to left knee and foot pain. He was able to walk on his heels and toes. He had normal shoe wear pattern without breakdown, and he had no calluses to indicate abnormal weight-bearing. The Veteran reported using a cane, although this appeared to be due to generalized pain and weakness from fibromyalgia, rather than the Veteran's foot disability. Based on all the above evidence, the Board finds that entitlement to a disability rating in excess of 20 percent for the Veteran's service connected left foot disability is not warranted and that there is a very real question of whether the current disability evaluation is warranted. While the Veteran's disability, at best, results in symptoms of moderate severity including pain, limitation of motion, and a mild to moderate limp (which appears partially attributable to knee pain), he reports that he walks five or six blocks per day and was able to walk on his heels and toes. There is no evidence of abnormal weight-bearing. Repeated testing did not find pain, weakness, fatigue or other DeLuca factors. Additionally, the Veteran's symptoms are at least partially relieved by custom orthotics. As such, the Board finds that there is insufficient evidence of a severe foot disability. Objective testing does not clearly indicate the existence of the service connected disability related to problem during service. Simply stated, there is little object evidence of a crush injury to the left great and second toes and the Veteran's subjective complaints, for reasons cited above, are suspect. The Board finds no basis to alternately consider the criteria of DC 5276 (flatfoot), DC 5277 (bilateral weak foot characterized by musculature atrophy, disturbed circulation and weakness), DC 5278 (acquired clawfoot/pes cavus), DC 5279 (anterior metarsalgia [Morton's disease]), DC 5280 (unilateral hallux valgus), DC 5282 (hammer toe), or DC 5283 (malunion or nonunion of the tarsal or metatarsal bones). Additionally, rating the Veteran under DC 5003 for degenerative arthritis would not result in a disability rating in excess of 20 percent. Finally, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station 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) (2010). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 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 a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that 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. Id. 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. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in August 2002, September 2002, March 2006, and August 2009. These letters informed the Veteran of what evidence was required to substantiate his claims and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Although the March 2006 and August 2009 notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in June 2006. The appellant was afforded VA medical examinations in January 2007, January 2008, and February 2009. The examinations are adequate and probative for VA purposes because the examinations were based upon review of the claims folder and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. Additionally, the examiners relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs