Citation Nr: 1302802 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-14 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral ankle disability. 4. Entitlement to service connection for a bilateral leg disability, claimed as secondary to low back, bilateral knee, and bilateral ankle disabilities. 5. Entitlement to service connection for hypertension. 6. Entitlement to an initial compensable rating for residuals of a fracture of the right 5th metacarpal. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to September 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2008 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2012, a Video Conference hearing was held before the undersigned. A transcript of that hearing is associated with the Veteran's claims file. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. The issues of entitlement to service connection for a low back disability and hypertension and entitlement to an initial compensable rating for a residuals of a right fifth finger disability 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. Even assuming the credibility of the Veteran's account of in-service bilateral knee injury and continuity of symptomatology thereafter, the preponderance of the evidence weighs against a finding that the Veteran currently suffers from any left or right knee disability related to his period of active military service, to include any incident or event therein. 2. No disability of the right or left ankle has been present during the pendency of this claim. 3. No disability of the left or right leg has been present during the pendency of this claim. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.304 (2012). 2. The criteria for service connection for a left and right leg disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for a left and right ankle disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Because the Veteran was provided with proper notice with respect to his claims by way of October 2007 and May 2008 pre-adjudication notice letters, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran was provided with copies of the above rating decisions, the SOC, and the SSOC, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Regarding VA's statutory duty to assist in claims development, the Board notes that the Veteran's service treatment records (STRs) are included in the record. In addition, post-service treatment records adequately identified as relevant to the claims have been submitted or otherwise obtained, to the extent possible, and are associated with the record. Additional treatment records found in the Veteran's electronic folder through Virtual VA are essentially duplicative of evidence already contained in the physical claims file and considered by the RO. The Board notes that in August 2012 the Veteran testified that he had been in receipt of disability benefits from the State of North Carolina. The record includes a copy of a medical report from the State of North Carolina, Department of State Treasurer, Retirement Systems Division, dated in July 2002 which shows that the Veteran is in receipt of benefits for a low back disability. The Veteran does not contend, and the evidence does not show, that he is in receipt of disability benefits for bilateral knee, ankle, and leg disabilities. Accordingly, the Board finds that there is no reasonable possibility that these records would be relevant to the service connection claims for bilateral knee, ankle, and leg disabilities adjudicated in this decision. Further, neither the Veteran nor his service representative has identified his state disability records as evidence relevant to these claims. Because there is no indication in the claims file that the Veteran's state disability records potentially are relevant to the claims of service connection for bilateral knee, ankle, and leg disabilities, and because the Veteran has not identified any state disability records as relevant evidence which VA should attempt to obtain under the VCAA's duty to assist, the Board finds that a remand to obtain state disability records is not required with respect to these claims. Regarding the Veteran's claimed bilateral knee disability, the Veteran was afforded a VA examination in July 2010. Based on review of the claims folder and interview and evaluation of the Veteran, the examiner concluded that it is more likely than not that the Veteran sustained his wear and tear [knee] injuries from 1977 to present while performing such duties as a firefighter, as will be explained below. The opinion was supported by an adequate rationale and is deemed sufficient for the purpose of this adjudication. Regarding the Veteran's claimed bilateral leg and ankle disabilities, the Veteran was afforded a VA examination in July 2010. Based on review of the claims folder and interview and evaluation of the Veteran, the examiner concluded that there was no pathology to render any diagnoses. In other words, the examiner concluded that the Veteran did not have any current bilateral leg or ankle disabilities. Upon review, the Board finds that the examination report is adequate for the purposes of this adjudication. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may be granted for disability which is proximately due to, or aggravated by service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). During the pendency of these claims and appeal, an amendment was made to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744-47 (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, supra, 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 secondary service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. The present case appears to predate the regulatory change. Consequently, the Board will apply the prior version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Left and right knee In this case, the July 2010 VA examination shows that the Veteran currently suffers from bilateral knee strain. Because a current bilateral knee disability has been established, the Board will next consider whether the evidentiary record supports in-service incurrence. The Veteran contends that he has a bilateral knee disability related to PT and Airborne training during his service in 1973. In this regard, the Veteran's STRs include a February 1973 report which reflects a complaint of weak knees. However, a July 1977 ETS (expiration of term of service) examination reflects a normal clinical evaluation of the Veteran's lower extremities. An accompanying report of medical history shows that the Veteran denied having a "trick" or locked knee and stated that he was in good health at that time. In his April 2010 substantive appeal, the Veteran contended that in February 1973 he was placed on a 30-day light duty assignment for bilateral knee injuries he sustained at Fort Benning, Georgia. He stated that he has had chronic knee pain since his service and that he received private treatment for these complaints from February 2002 to April 2002. However, the post-service treatment records are completely devoid of any treatment of a left or right knee disability. On VA examination in July 2010, the Veteran presented with complaints of bilateral knee problems since 1973 when running and PT. However, on X-ray examination, multiple views of both knees showed no evidence of fracture or other significant bone, joint, or soft tissue abnormality. The impression was negative for the left and right knee. On examination, the examiner diagnosed left and right knee strain. The examiner opined that the Veteran's current knee strain condition was not supported to be DJD (degenerative joint disease) by X-ray examination. The examiner stated that the Veteran's active duty complaint of knee weakness was very vague and did not offer a history of trauma. Based on those facts, the bilateral knee condition was not considered to be due to or a continuation of the knee condition noted during active duty. For all the joint conditions noted on examination, it was more likely than not that the Veteran sustained his wear and tear injuries from 1977 to present while performing duties of a firefighter, which is what he stated he did for most of his career. In August 2012, the Veteran testified that he was an EMT (emergency medical technician) and firefighter and stated that he had problems with his knees in-service during Airborne training at which time his knees were wrapped with moss and he was placed on light-duty. He also testified that his bilateral knee disability was so severe that he was unable to complete jump school. However, he testified that X-rays of his knees were negative. On review of the evidence above, the Board finds the Veteran does not have a bilateral knee disability that is etiologically related to service. The Veteran has been afforded a VA examination in which the examiner, based on review of the evidence, stated a medical opinion against such an etiological relationship, and there is no contrary medical opinion of record. Further, there is no indication that degenerative changes became manifest to any degree during the first year after discharge from service, so presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. Furthermore, the Veteran's bilateral knee strain was not shown until almost 33 years after his discharge from active duty. Such a lengthy time interval between service and the initial post-service manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F. 3d 133-(Fed. Cir. 2000). As it relates to the Veteran's competent account of having sustained injury to his knees during service, there is no indication in the record that his account of a bilateral knee injury is not credible. However, the Veteran's current recollection of experiencing chronic bilateral problems since his service is inconsistent with the STRs showing a complaint of knee pain in February 1973 followed by a July 1977 ETS examination which showed that his lower extremities were found to be normal. In the Board's opinion, the documents prepared contemporaneous to the Veteran's active service are more probative than the Veteran's current recollections concerning his bilateral knee problems in service. Moreover, the record includes a July 2010 VA medical opinion which does not attribute the Veteran's current bilateral knee disability to his active service. Rather, the Veteran's current bilateral knee strain has been attributed to wear and tear injuries from 1977 to present during which time the Veteran was employed as a firefighter. The Board notes that the examiner provided a sound rationale in support of the conclusion and has the requisite medical expertise to provide a competent medical opinion regarding the cause of the Veteran's current bilateral knee disability. The examiner also had sufficient data on which to base the conclusion-i.e., review of the Veteran's treatment records, post-service treatment records, and other pertinent evidence included in the claims file, as well as his own interview and examination of the Veteran. Thus, in summary, even assuming the credibility of the Veteran's account of having sustained injury to his left and right knee in service, the preponderance of the evidence weighs against the claim. While the Board acknowledges that the Veteran testified that he is an EMT and firefighter, the evidence does not indicate that he is has specific training necessary to diagnose orthopedic disabilities or that he has the appropriate training or education to provide nexus opinions. For these reasons, the Board affords little probative value to the Veteran's competent and credible lay account regarding having suffered from bilateral knee pain since the injury in service. Furthermore, a VA medical examiner has opined that the Veteran's current bilateral knee strain is more likely than not due to his wear and tear injuries from 1977 to present while the duties of a firefighter. Thus, the most probative evidence of record reveals the Veteran's current bilateral knee disability manifested many years after service and is more likely attributable to post-service employment. Therefore, because the preponderance of the evidence is against his claim, service connection for a left and right knee disability is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left and right ankle The Veteran contends that he has a bilateral ankle disability related to PT and Airborne training during his service in 1973. The Veteran's STRs are completely devoid of any evidence or diagnosis of a disability of the left or right ankle. In fact, a July 1977 ETS examination reflects a normal clinical evaluation of the Veteran's lower extremities. An accompanying report of medical history shows that the Veteran stated that he was in good health at that time. Private treatment records include a March 2001 report which reflects a complaint of right ankle problems in service. However, the Veteran was not diagnosed with any right ankle disability. In his April 2010 substantive appeal, the Veteran contended that in February 1973 he had problems with his ankles and has had problems since his service. He also testified that he received private treatment for ankle pain from February 2002 to April 2002. However, a review of those private treatment records is completely negative for complaints of any ankle disabilities or diagnoses. On VA examination in July 2010, the Veteran reported that his bilateral ankle disability had existed since 1973. He complained of weakness, pain, giving way, lack of endurance, and tenderness. On X-ray examination of the ankles, multiple views of each ankle showed no evidence for fracture or other significant bone, joint, or soft tissue abnormality. There was a plantar spur of the os calcis without soft tissue change to warrant a diagnosis of plantar fasciitis. The impression was negative left and right ankle. There was no pathology to render a diagnosis. In August 2012, the Veteran testified that he had problems with his ankle in service during Airborne training at which time his ankles were wrapped and he was placed on light-duty. He also stated that his bilateral ankle disability was so severe that he was unable to complete jump school. However, he testified that X-rays of his ankles were negative. On review of the evidence above, the Board notes that the Veteran has complained of bilateral ankle pain, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no medical evidence showing that a left or right ankle disability has been present at any time during the pendency of the claim and the report of a current VA examination shows the Veteran does not have an abnormality of the left or right ankle; he has accordingly not shown a current disorder for which service connection can be granted. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Lay evidence can, in some circumstances, also be competent to establish a medical diagnosis. See Davidson, supra. Here, though, the Veteran is competent to describe symptoms such as pain, but he is not competent to provide a diagnosis of any ankle disorder since such a condition would not be observable to him. As discussed above, there is no medical evidence of the presence of a disorder of the left or right ankle during the pendency of this claim. Although the Board has acknowledged that the Veteran is an EMT and firefighter, and the Veteran has asserted that he suffers from a bilateral ankle disability, he, as a lay person, is not competent to render a diagnosis of his claimed bilateral ankle disability in this particular case. While he is competent to report a contemporaneous medical diagnosis, as noted above, there have been no diagnoses related to a bilateral ankle disability made by any medical provider since he filed his claim. For the foregoing reasons, the claims for service connection for a left and right ankle disability must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left and right leg The Veteran contends that his left and right leg disabilities are secondary to lower back, bilateral knee, and bilateral ankle disabilities. Private treatment records include a February 2002 report which shows a complaint of paresthesias and difficulty using his legs. The assessment was paresthesias-must consider diabetes, thyroid, spinal stenosis, etc. An April 2002 report shows an assessment of lower extremity paresthesias/weakness. A July 2002 report shows a complaint of paresthesias in the right leg and an assessment of intermittent muscle weakness. On VA examination in July 2010, the Veteran presented with a complaint of a bilateral leg disability since 1976, but denied any injury or trauma. He also complained of bilateral leg pain. On examination, X-ray examinations of the left and right femur and left and right tibia showed no evidence of fracture or other significant bone or soft tissue abnormalities. The impression was a normal left and right femur and negative left and right tibia-fibula. The examiner found that there was no pathology to render a diagnosis for either leg. The Veteran testified that his bilateral leg problems began in jump school during service and that he had been diagnosed with Guillain-Barré syndrome. On review of the evidence above, the Board notes that the Veteran has complained of bilateral leg pain, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." See Brammer, 3 Vet. App. at 225. The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain, 21 Vet. App. at 321. In this case, there is no medical evidence showing that a left or right leg disability, including Guillain-Barré syndrome, has been present at any time during the pendency of the claim and the report of a current VA examination shows the Veteran does not have an abnormality of the left or right leg; he has accordingly not shown a current disorder for which service connection can be granted. As regards the theory of secondary service connection, given that service connection is not in effect for any bilateral knee and ankle disabilities, there is no legal basis for granting service connection for a bilateral leg disability as secondary to these disabilities. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. While the Board acknowledges that the Veteran also contends that he has a bilateral leg disability that is related to his pending claim for service connection for a low back disability, since he has not been diagnosed with any bilateral leg disability during the pendency of this claim, there remains no legal basis by which to grant service connection as secondary to low back disability. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. As noted above, lay evidence can be competent evidence of a medical diagnosis in certain situations. Here, however, the Veteran's statements are not competent to do so. Although he can certainly report symptoms such as pain, he cannot state a diagnosis he believes accounts for those symptoms, since this regards a process not readily observable by him. As discussed above, there is no medical evidence of the presence of a disorder of the left or right leg during the pendency of this claim. Although the Board has acknowledged that the Veteran is an EMT and firefighter, and the Veteran has asserted that he suffers from a bilateral leg disability, he, as a lay person, is not competent to render a diagnosis of his claimed bilateral leg disability in this particular case. While he is competent to report a contemporaneous medical diagnosis, as noted above, none of the diagnoses related to any bilateral leg disability (i.e., paresthesias and intermittent muscle weakness) were made by any medical provider since he filed his claim. For the foregoing reasons, the claims for service connection for a left and right leg disability must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. [continued on next page] ORDER Service connection for a bilateral knee disability is denied. Service connection for a bilateral ankle disability is denied. Service connection for a bilateral leg disability is denied. REMAND Although the Board sincerely regrets the delay, a review of the evidentiary record reveals that the claims for service connection for a low back disability and hypertension and an initial compensable rating for residuals of a fracture of the 5th metacarpal must be remanded for further evidentiary development and to ensure due process, for reasons explained below. Hypertension The Veteran contends that he had hypertension during service and that his current hypertension is related to his service. Hypertension is defined as persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. Dorland's Illustrated Medical Dictionary p. 889 (30th ed. 2003). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Veteran's STRs reflect systolic readings of 140 mm or more and diastolic readings of 90 mm or more on separation examination in July 1977. Specifically, the Veteran had readings of 140/90 and 148/90. On VA examination in July 2010, the Veteran presented with a history of hypertension since 1977 and the examiner diagnosed him with untreated hypertension. However, the examiner stated that there was no documentation to support a diagnosis of hypertension while the Veteran was on active duty. It is important to note here that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds the July 2010 VA examination to be inadequate because the examiner's statement that there was no documentation to support an in-service diagnosis of hypertension is inaccurate, since he clearly had blood pressure readings of 140 mm or more and diastolic readings of 90 mm at separation in July 1977. On remand, an addendum report should be obtained that will address the Veteran's possible hypertension during his service and provides an opinion as to whether the Veteran's currently diagnosed untreated hypertension is related to his service. State Disability Records As previously noted, in August 2012 the Veteran testified that he had been in receipt of disability benefits from the State of North Carolina. The record includes a copy of a medical report from the State of North Carolina, Department of State Treasurer, Retirement Systems Division, dated in July 2002 which shows that the Veteran is in receipt of benefits for a low back disability. However, to date, a complete copy of records related to the Veteran's state disability benefits from the State of North Carolina has not been associated with the claims file. As such, these records must be obtained on remand. 38 C.F.R. § 3.159(c) (2012). Social Security Records In August 2012, the Veteran testified that he filed for Social Security disability benefits for a back disability, but his claim was denied. Such records are potentially relevant to the Veteran's claim. VA's duty to assist the Veteran particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA or Social Security records. See 38 C.F.R. § 3.159(c)(2). Therefore, because the records from the Social Security Administration (SSA) may contain pertinent information to the Veteran's claim, VA is obligated to obtain them. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). For the foregoing reasons, a remand is warranted so that the Veteran's SSA records may be obtained and associated with the record. Manlincon-Issuance of SOC A March 2012 rating decision granted service connection for residuals of a fracture of the right 5th metacarpal and assigned a noncompensable (0 percent) rating, effective July 30, 2007. At his August 2012 Video Conference hearing before the Board, the Veteran expressed disagreement with the noncompensable disability rating assigned for his right 5th finger disability. The Veteran's testimony constitutes a notice of disagreement (See Tomlin v. Brown, 5 Vet. App. 355 (1993) (holding that a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a Notice of Disagreement (NOD) within the meaning of 38 U.S.C.A. § 7105(b)). Upon consideration of the foregoing, the Board notes that the August 2012 NOD was received (by the RO) within one year of the March 2012 rating decision and is, thus, timely. 38 U.S.C.A. § 7105. Because a timely NOD has been submitted, a remand is required in order to provide the Veteran with an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that Board should remand for issuance of SOC when NOD has been timely filed); 38 U.S.C.A. § 7105(d)(1). Thereafter, the Veteran must submit a timely substantive appeal in order for this issue to be perfected for appeal to the Board. 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED for the following actions: 1. Request from SSA all records related to the Veteran's claim for Social Security disability benefits, including all medical records and copies of any decisions or adjudication, and associate them with the claims folder. All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. Request from the State of North Carolina, Department of State Treasurer, Retirement Systems Division, all records related to the Veteran's claim for disability benefits, including all medical records and copies of any decisions or adjudication, and associate them with the claims folder. All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 3. Thereafter, obtain a supplemental medical opinion from the July 2010 medical examiner (or another appropriate medical professional if Dr. P.B.K. is unavailable), without further examination of the Veteran. If another medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. a. Based on review of the claims folder, the examiner/reviewer should state whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current hypertension had its onset in service, or is otherwise causally or etiologically related to active military service, to include any symptomatology shown therein; OR whether such a relationship is unlikely (i.e., a probability of less than 50 percent.). b. In providing the opinion, the examiner/reviewer should also discuss lay and medical evidence contained in the Veteran's STRs, to include the July 1977 blood pressure readings. The examiner/reviewer should also discuss post-service lay and medical evidence in support of his or her conclusions, to include the Veteran's hearing testimony that he has had hypertension since his service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner/reviewer cannot answer any question posed without resorting to unsupported speculation, the examiner should so state, and explain why that is so. 4. Thereafter, readjudicate the Veteran's claims for service connection for a low back disability and hypertension, to include consideration of evidence submitted since the March 2012 Supplemental Statement of the Case (SSOC). Should the benefits sought on appeal remain denied, provide the Veteran with an SSOC and an appropriate period of time for response. Thereafter, return the case to the Board, if in order. 5. Send the Veteran an SOC with respect to the issue of entitlement to an initial compensable rating for residuals of a fracture of the right 5th metacarpal, to include notification of the need and the appropriate time period in which to file a substantive appeal. If, and only if, a timely substantive appeal is filed in response, this issue should be returned to the Board for appellate review. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs