Citation Nr: 1303971	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  09-22 207	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to an increased evaluation for pes planus, with calcaneal spurs and osteoarthritis, currently rated as 10 percent disabling.

2.  Entitlement to service connection for a right knee and foot disorder other than pes planus.

3.  Entitlement to service connection for a heart disorder.

4.  Entitlement to service connection for an eye disorder.

5.  Entitlement to service connection for a skin disorder, to include scarring.

6.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a gastrointestinal disorder.

7.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory disorder.

8.  Whether new and material evidence has been submitted to reopen a claim for compensation for psychiatric disability under the provisions of 38 U.S.C.A. § 1151, and if so, whether compensation may be awarded.

9.  Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether service connection may be awarded.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from February 1945 to October 1945.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  

The Board acknowledges that the June 2009 statement of the case and the August 2008 supplemental statement of the case characterized the gastrointestinal, respiratory, and psychiatric issues on appeal as original claims for service connection.  However, the record reflects that those claims were previously denied in June 2005 and July 1999 decisions, which were rendered by the Board and RO, respectively, and have since become final.  As such, those issues are more appropriately characterized as new and material evidence claims, as reflected on the title page of this decision.  

Pursuant to the holding in Clemons V. Shinseki, 23 Vet. App. 1 (2009), the claim for service connection for scarring has been broadened to encompass all of the skin disorders for which the Veteran now seeks VA benefits.  

Throughout the pendency of this appeal, the Veteran's treating providers have repeatedly noted that he is unemployable as a consequence of his mental disabilities.  The Veteran is not currently service connected for any such disabilities.  Nevertheless, the Board finds that, in light of its decision to reopen and remand his claim for service connection for a psychiatric disorder under the provisions of 38 U.S.C.A. § 1110, a claim of entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) has been effectively raised by the record.  Significantly, however, the issue of TDIU has not been raised in connection with a pending increased rating claim nor previously adjudicated by the AOJ.  But see Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for one or more service-connected disabilities, the claim for TDIU will be considered part of the claim for benefits for the underlying disability).  As such, that issue is not currently in appellate status and, thus, is referred to the AOJ for appropriate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.





FINDINGS OF FACT

1.  Prior to September 23, 2011, the Veteran's service-connected pes planus was manifested by mild hallux valgus in the Achilles tendon of the right foot, with no corresponding misalignment of the left Achilles tendon or the bilateral forefoot or midfoot tendons.  There was no evidence of bilateral marked deformity, such as pronation or abduction, nor any sign of arthritic changes, palpable on X-ray.  Nor were there any complaints or clinical findings of edema, instability, callosities, breakdown, or uneven shoe wear pattern with respect to either foot.

2.  Since September 23, 2011, the Veteran's pes planus has been manifested by the symptoms, noted above, and has also been productive of bilateral calcaneal spurs and osteoarthritis, shown on X-ray.

3.  Throughout the pendency of this appeal, the Veteran's pes planus has been adequately compensated by the rating schedule.  Moreover, that service-connected disability has not presented an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards.

4.  The preponderance of the competent and credible evidence shows that the Veteran currently suffers from right knee arthritis and radiating pain in his lower right extremity, which arose many years after his discharge from the military and is unrelated to his service-connected pes planus or to any other aspect of his service.

5.  The preponderance of the competent and credible evidence shows that the Veteran currently suffers from hypertension, exertional angina, and coronary artery disease, which did not manifest to a compensable level within a year of his military discharge and is unrelated to any aspect of his active service.

6.  The preponderance of the competent and credible evidence shows that the Veteran currently suffers from poor vision in the right eye secondary to a chroidal rupture incurred in a 1969 motor vehicle accident, as well as bilateral posterior vitreous detachment with pseudophakia, a macular pucker of the left eye, bilateral postoperative cataracts, and bilateral macular degeneration, none of which is related to any aspect of his active service. 

7.  The preponderance of the competent and credible evidence shows that the Veteran currently suffers from skin problems, which have been alternately diagnosed as tinea corporis, tinea cruris, tinea incognito, xerosis, onychomycosis, gyrate erythema, hyperpigmentation, intertrigo, erythema, nummular eczema, and nummular dermatitis, with residual scarring, but which have not been related to any aspect of his active service.  

8.  In a June 2005 decision, the Board declined to reopen the Veteran's previously denied claims for gastrointestinal and respiratory disorders (then characterized as an ulcer and bronchitis, respectively).  The Veteran did not appeal that Board decision.

9.  The evidence received subsequent to the June 2005 Board decision is not new, in that it is cumulative and redundant of the evidence previously considered by VA decision makers in the adjudication of the Veteran's gastrointestinal and respiratory claims.

10.  The RO denied entitlement to VA benefits for depression under the provisions of 38 U.S.C.A. § 1151 in a July 1999 rating decision.  The Veteran was notified of that decision and did not appeal.

11.  In the aforementioned June 2005 decision, the Board also denied entitlement to service connection for a psychiatric disorder.  The Veteran did not appeal that decision.

12.  The evidence received subsequent to the July 1999 RO decision is not cumulative, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim for VA benefits for depression under the provisions of 38 U.S.C.A. § 1151.

13.  The evidence received subsequent to the June 2005 Board decision is not cumulative, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for a psychiatric disorder.

14.  The preponderance of the competent and credible evidence shows that the Veteran's currently diagnosed PTSD, major depressive disorder with psychotic features, and anxiety did not result from his October 1993 hospitalization at a VA medical facility in which he was allegedly misdiagnosed with human immunodeficiency virus (HIV).


CONCLUSIONS OF LAW

1.  Prior to September 23, 2011, the criteria for a single rating in excess of 10 percent for moderate pes planus were not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a, Diagnostic Codes 5003, 5010, 5276, 5279, 5280, 5281, 5284 (2012).

2.  Since September 23, 2011, the criteria for separate ratings of 10 percent, but no higher, for the Veteran's right and left foot pes planus with accompanying bilateral calcaneal spurs and osteoarthritis have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a, Diagnostic Codes 5003, 5010, 5276, 5279, 5280, 5281, 5284 (2012).

3.  The criteria for referral for an increased rating for the Veteran's bilateral pes planus, with accompanying calcaneal spurs and osteoarthritis, on an extraschedular basis have not been met.  38 C.F.R. § 3.321(b)(1) (2012).

4.  The criteria for service connection for a right knee and foot disorder other than pes planus have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

5.  The criteria for service connection for a heart disorder have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

6.  The criteria for service connection for an eye disorder have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012).

7.  The criteria for service connection for a skin disorder have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012).

8.  The June 2005 Board decision, which declined to reopen the Veteran's previously denied claim for a gastrointestinal disorder is final; new and material evidence has not been submitted, and the claim is not reopened.   38 U.S.C.A. §§ 7104, 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (2012).

9.  The June 2005 Board decision, which denied entitlement to service connection for a respiratory disorder, is final; new and material evidence has not been submitted, and the claim is not reopened.   38 U.S.C.A. §§ 7104, 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (2012).

10.  The July 1999 RO decision, which denied VA benefits under 38 U.S.C.A. § 1151 for depression, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

11.  The June 2005 Board decision, which denied entitlement to service connection for a psychiatric disorder, is final.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.

12.  New and material evidence has been submitted, and the Veteran's claim of entitlement to VA benefits under 38 U.S.C.A. § 1151 for depression is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  

13.  New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for a psychiatric disorder is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  

14.  The criteria for VA benefits under 38 U.S.C.A. § 1151 for a psychiatric disorder, to include PTSD, have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.361, 17.32 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

At the outset, the Board notes that it has thoroughly reviewed the 20 volumes of lay and medical evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the appellant or on his behalf.  See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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, with respect to the Veteran's claims.  The Veteran should 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) (noting that the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

In this case, VA's notice requirements were satisfied by a letter issued in May 2007, prior to the January 2008 RO decision, which adjudicated all of the issues currently on appeal.  The May 2007 notice letter explained the evidence the Veteran was responsible for obtaining, the evidence VA would obtain on his behalf, the criteria for establishing service connection, and how VA determined effective dates and disability ratings.  That letter also notified the Veteran of what new and material evidence meant in the context of his previously adjudicated gastrointestinal, respiratory, and psychiatric claims, as well as the bases upon which those claims had previously been denied.  As such, notwithstanding the fact that the RO subsequently characterized those claims as original issues of service connection, the Board finds that the Veteran was duly apprised of the criteria set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006).  

Conversely, the Board acknowledges that the Veteran has not yet received notice of the amended regulatory criteria governing service connection for PTSD.  See 75 Fed. Reg. 39843 (July 13, 2010); 38 C.F.R. § 3.304(f) (2012).  Indeed, those regulatory criteria were amended subsequent to the May 2007 notice letter and, thus, could not have been addressed therein.  Nevertheless, the Board observes that those particular amended criteria are only implicated in the Veteran's claim for service connection for a psychiatric disorder under the provisions of 38 U.S.C.A. § 1110, which, for the reasons set forth below, must be remanded.  Accordingly, the Veteran will have additional opportunity for notice of those amended criteria as they apply to that particular issue.  None of the other issues on appeal require further VCAA notification.  

Next, relevant to VA's duty to assist, the Veteran's service and VA treatment records have been associated with his claims file.  The Veteran also has submitted treatment records from private clinicians in connection with his claims.  Significantly, he has not identified, and the claims file has not otherwise shown, any relevant available treatment records that remain outstanding.  

Conversely, the Board acknowledges that pertinent service personnel records are missing in this case.  Although the RO previously requested all of the Veteran's service personnel records in September 2010, the National Personnel Records Center responded that those records were unavailable and presumed destroyed in a 1973 fire at the St. Louis, Missouri, records repository.  In such instances when pertinent federal records have been destroyed, VA has an obligation to search for alternative records that might support the case.  Cuevas v. Principi, 3 Vet. App. 542 (1992).  Here, the RO met that obligation by requesting personnel records not only from the appropriate service department but also from the Veteran himself.  Although the service department responded in the negative, the Veteran was able to submit copies of several of his personnel records.  Those records were received in October 2010 and April 2011 and have been duly considered in support of the Veteran's appeal.  Moreover, the RO has since issued a December 2011 formal finding of unavailability with respect to the remainder of his service personnel records.  The Veteran has been informed of this fact but has not submitted any additional personnel records, nor provided any information that would enable to VA to obtain such records on his behalf.  Accordingly, the Board concludes that any additional efforts to obtain the Veteran's outstanding service personnel records would be futile.  38 U.S.C. 5103A(b)); 38 C.F.R. § 3.159(c)(2).  Further, any additional delay in adjudication in this regard would not benefit the Veteran and would unnecessarily delay and burden agency resources.  Sondel v. West, 13 Vet. App. 213 (1999).

Next, the Board acknowledges that the Veteran has not been afforded VA examinations in support of his applications to reopen his previously denied respiratory and gastrointestinal claims.  Significantly, however, the duty to assist does not require VA to provide examinations in the context of claims to reopen unless new and material evidence has been received.  38 C.F.R. § 3.159(c)(4)(iii) (2012).  As discussed below, the Board has determined that no such new and material evidence has submitted in connection with the Veteran's gastrointestinal and respiratory claims.  As such, examinations are not required with respect to those claims.  Id.  

Nor are examinations warranted with respect to the Veteran's original claims for service connection for right knee and foot, heart, eye, and skin disorders.  That is because the Board has determined, for the reasons set forth below, that the existing evidence of record does not suggest a nexus between the Veteran's brief period of active service and any of the right lower extremity problems for which he is not already service connected or for any of his currently diagnosed heart, eye, and skin disorders.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In contrast, the record has been found to contain sufficient evidence to trigger the need for VA examinations with respect to the Veteran's claim for an increased rating for pes planus and his reopened psychiatric claims.  Id.  Such examinations have been conducted during the pendency of this appeal and the results have been incorporated in the claims file.  Significantly, the Veteran has not contended, and the record does not otherwise suggest, that those examinations were inadequate for the purposes of rating his increased rating claim or his claim concerning a psychiatric disorder under the provisions of 38 U.S.C.A. § 1151.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced).  Moreover, the mere passage of time since those examinations does not, in and of itself, warrant additional development.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11- 95 (1995), 60 Fed. Reg. 43186 (1995).  Accordingly, the Board finds that new examinations are not warranted with respect to those issues.  

Conversely, a new VA examination is required in support of the Veteran's reopened claim for service connection for a psychiatric disorder under the provisions of 38 U.S.C.A. § 1110.  Consequently, that particular claim has been remanded, as discussed in further detail below.

As a final point regarding the duty to assist, the Board notes that, while the Veteran has testified before a Decision Review Officer (DRO) in connection with a prior appeal, he has not requested a hearing before a DRO or a Veterans Law Judge with respect to any of the claims now at issue.  

In light of the foregoing, the Board concludes that VA has expended reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims.  Thus, as VA's duties to notify and assist have been met with respect to all of the claims decided herein, there is no prejudice to the Veteran in proceeding to the merits of those claims.  



Increased Rating

The Veteran has a history of flat feet for which he was initially assigned a noncompensable rating, effective February 3, 1999.  Several years later, he applied for an increased rating and was granted a 10 percent evaluation, effective the date of claim (November 27, 2006).  Nevertheless, the Veteran now contends that a still-higher rating is appropriate.  

In considering the merits of the Veteran's claim, the Board notes that disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.  Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Additionally, the Board must consider entitlement to staged ratings to compensate for times during the relevant appeals period when the disability may have been more severe than at other times throughout the pendency of the claim.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.  38 C.F.R. § 4.40 (2012).
When evaluating musculoskeletal disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, must be considered when raised by the claimant or when reasonably raised by the record, regardless of whether the underlying disability involves arthritis.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Moreover, when arthritis is shown by X-ray studies, the disability is to be rated based on limitation of motion of the affected joint.  When there is some limitation of motion, but not enough to be compensable under the appropriate limitation-of-motion code, a 10 percent rating may be assigned for each major joint or group of minor joints so affected.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012).  Separate arthritis ratings are to be combined, not added under Diagnostic Code 5003.  Furthermore, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5010, Note (1).

The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  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 (2012).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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 C.F.R. §§ 4.2, 4.6 (2012).

Throughout the pendency of this appeal, the Veteran has been assigned a 10 percent rating pursuant to Diagnostic Code 5276, which pertains to flat feet.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Board has considered applying alternate diagnostic codes in connection with the Veteran's claim.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).  In this regard, the Board finds that Diagnostic Codes 5003 and 5010 are also for application in light of the clinical findings of osteoarthritis accompanying the Veteran's pes planus.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.  Additionally, given the clinical and lay evidence of Morton's neuroma, hallux valgus, hallux limitus, calcaneal spurring. and other miscellaneous foot problems, none of which has been clinically distinguished from the symptoms underlying the Veteran's service-connected pes planus, the Board will consider whether a higher rating may be granted by analogy under Diagnostic Codes 5279 (Metatarsalgia, anterior (Morton's disease)), 5280 (hallux valgus), 5281 (hallux rigidus), and 5284 (other injuries of the foot).  38 C.F.R. § 4.71a, Diagnostic Codes 5279, 5280, 5281, 5284; see Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)) (In considering the appropriate rating to assign in a particular case, when the effects of a service-connected disability have not been clinically disassociated from those of a nonservice-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability.)

Conversely, the Board will not consider the other diagnostic codes pertaining to the foot.  38 C.F.R. § 4.71a, Diagnostic Codes 5077, 5078, 5082, 5083.  That is because the Veteran has not alleged, and the record does not otherwise show, that his service-connected disability encompasses symptoms of weak foot (5077), claw foot (5078), hammer toes (5082), or malunion or nonunion of the tarsal or metatarsal bones (5083).  Therefore, the diagnostic codes contemplating those disorders are not applicable in this instance.  38 C.F.R. § 4.71a, Diagnostic Codes 5077, 5078, 5079, 5081, 5082, 5083.  Furthermore, none of the lay and clinical evidence submitted in connection with this appeal indicates that the Veteran's disability is ratable under any of the other musculoskeletal codes, or any of diagnostic criteria outside the purview of 38 C.F.R. § 4.71a.  Accordingly, the Board finds that all of the schedular rating criteria pertinent to the Veteran's claim are effectively encompassed in Diagnostic Codes 5003, 5010, 5276, and 5284.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5276, 5279, 5280, 5281, and 5284.  

As a final procedural matter before proceeding to the relevant facts in this case, the Board notes that the rating period on appeal extends from November 26, 2005, one year prior to the date of receipt of the Veteran's increased rating claim.  See 38 C.F.R. §  3.400(o)(2).  Nevertheless, under current VA law, a service-connected disability must be viewed in relation to its whole or recorded history.  38 C.F.R. § 4.1.  Therefore, the Board will consider lay and clinical evidence dated prior to November 26, 2005, but only to the extent that such evidence is found to shed additional light on the Veteran's disability picture as it relates to the rating period on appeal.

The pertinent evidence is replete with complaints of flat feet persisting since the Veteran's active service.  Moreover, clinical findings confirm that the Veteran was diagnosed with pes planus while on active duty, although he did not request service connection for that disorder until more than five decades later.  That request was granted and, as noted previously, the Veteran waited an additional several years before applying for a compensable rating.  

In support of his increased rating claim, the Veteran was afforded a June 2007 VA examination in which he complained of chronic bilateral foot pain, ratable as a 6-7 out of 10 in terms of severity.  The Veteran also reported other foot-related symptoms, including weakness, stiffness, swelling, temperature fluctuations, and fatigability, but denied any redness.  Additionally, while he complained of flare-ups, which were precipitated by prolonged walking and standing and alleviated through rest, he denied that such episodes were accompanied by any functional impairment, apart from increased pain and ankle swelling.  In terms of treatment, the Veteran reported that he had been fitted with a cane and shoe inserts.  However, he denied reliance on other orthotic devices or any need for medication.  Nor did he report any history of hospitalization or surgery for his service-connected foot problems.  

The June 2007 examination included physical testing in which the Veteran displayed decreased dorsiflexion and plantar flexion due to pain in his first metatarsophalangeal joints, bilaterally.  He also exhibited bilateral toe weakness and mild pes planus on weight bearing, as well as a mild 10 degrees of hallux valgus in the Achilles tendon of his right foot.  However, the alignments of the Veteran's corresponding left Achilles tendon and his bilateral forefoot or midfoot tendons were completely normal and there was no evidence of marked deformity, such as pronation or abduction, with respect to either foot.  Similarly, the Veteran did not display any signs of edema, instability, callosities, breakdown, or uneven shoe wear pattern with respect to either foot.  However, he was noted to have a positive squeeze test, with subjective complaints of pain, paresthesias, and tenderness, bilaterally, which was suggestive of Morton's neuroma.  Nevertheless, the examining VA clinician declined to formally diagnose the Veteran with that condition and instead determined that only a diagnosis of bilateral pes planus was warranted.

Subsequent VA medical records reflect that the Veteran has sought occasional treatment for pain in his right lower extremity.  However, that symptom has been consistently attributed to lumbar spine pathology, which is neither service connected nor currently on appeal, and to a right knee condition, which, for the foregoing reasons, does not warrant service connection in this instance.  As such, the only other clinical evidence pertinent to the Veteran's claim is a report of a follow-up VA examination, which he underwent on September 23, 2011.  

At that time, the Veteran reiterated his prior complaints of chronic bilateral foot pain on ambulation.  Moreover, clinical testing yielded evidence of painful motion, with accompanying weakness and misalignment, which were similar to the findings shown during the previous examination.  In contrast with that prior examination, however, the Veteran was found to have bilateral calcaneal spurs as well as osteoarthritis of both feet, which was demonstrable on X-ray.  Significantly, however, his overall level of disability was not found to approach a level of impairment that was equivalent to amputation with respect to any or all of his toes.  Nor was his disability shown to impact his ability to obtain or maintain gainful employment.

After careful consideration of the above evidence, the Board finds that, throughout the pendency of this appeal, the Veteran's bilateral foot disorder has been appropriately rated pursuant to Diagnostic Code 5276.  That diagnostic code contemplates a 10 percent rating for both unilateral and bilateral pes planus where there is evidence of moderate impairment manifested by abnormal weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  As noted previously, such symptoms were either shown or closely approximated during the Veteran's February 2007 and September 2011 VA examinations.  Moreover, there is no evidence that those symptoms have improved at any time throughout the remainder of the appeals period.  Consequently, the Board is satisfied that the Veteran's service-connected disability has consistently met the criteria for a 10 percent rating under Diagnostic Code 5276.  

In order to warrant a higher rating of 20 percent under the above code, the Veteran would need to exhibit severe unilateral or bilateral pes planus manifested by symptoms such as marked deformity, including pronation or abduction, or marked pain and swelling on manipulation and use, or characteristic callosities.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  Such symptoms have been neither alleged nor shown.  On the contrary, the February 2007 VA examiner expressly determined that the Veteran's pes planus was not productive of any pronation, abduction or other marked deformity, nor manifested by characteristic callosities.  Moreover, notwithstanding the Veteran's concurrent complaints of chronic pain and ankle swelling, those symptoms, by his own admission, were no more than moderate in nature.  Further, there have been no subjective or objective findings to the contrary during the remainder of the appeals period.  Accordingly, the Board concludes that, throughout the pendency of the Veteran's claim, his pes planus symptoms have fallen squarely within the parameters of his currently assigned 10 percent rating and have not risen to the level of severity for which a 20 percent evaluation would be warranted under Diagnostic Code 5276.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  

Similarly, the Veteran's service-connected disability has not approximated the criteria for a higher rating under the diagnostic codes pertaining to Morton's disease, hallux valgus, and hallux rigidus, and other injuries of the foot.   38 C.F.R. § 4.71a, Diagnostic Codes 5279, 5280, 5281, 5284.  The Board acknowledges that the Veteran has presented symptoms suggestive of each of those conditions.  Nevertheless, the particular diagnostic criteria used to rate those conditions encompass symptoms of musculoskeletal foot impairment that have already been considered in the assignment of Veteran's 10 percent rating under Diagnostic Code 5276.  Accordingly, to award a separate 10 percent rating under any or all of those other diagnostic codes would amount to impermissible pyramiding.  Esteban v. Brown, 6 Vet. App. 259 (1994).  

Moreover, the Board observes that Diagnostic Codes 5279, 5280, and 5281 do not contemplate ratings above 10 percent.  Conversely, Diagnostic Code 5284 does provide for a 20 percent rating, but only in the presence of moderately severe foot injury.  Significantly, the February 2007 VA examiner expressly characterized the Veteran's pes planus as mild.  Moreover, neither that examiner nor any other clinician has found the Veteran's overall level of foot disability to be more than moderate in degree throughout the relevant appeals period.  Further, the Veteran himself has not contended otherwise.  Accordingly, the Board finds that Diagnostic Code 5284 cannot serve as the basis for a higher rating in this instance.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  

The Board now turns to Diagnostic Code 5003, which, as previously noted, provides for separate 10 percent evaluations for each major joint or group of minor joints affected by degenerative osteoarthritis, shown on X-ray, with accompanying noncompensable limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  In this case, while X-ray findings of arthritis were not reported during the Veteran's initial February 2007 VA examination, such findings were made during his follow-up examination on September 23, 2011.  Accordingly, given the concurrent evidence of bilateral limitation of motion, the Board finds that, since September 23, 2011, the Veteran has met the criteria for separate 10 percent arthritis ratings for his left and right feet.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  

The Board recognizes that, under Diagnostic Code 5003, a higher 20 percent evaluation is theoretically possible.  However, such a rating would require evidence of occasional incapacitating exacerbations involving both feet, which has neither been contended nor shown in this case.  Therefore, the Board finds that separate ratings of 10 percent, but no higher, are warranted for the Veteran's bilateral foot arthritis, effective September 23, 2011.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  

The Board notes that the award of these separate arthritis ratings effectively supersedes the Veteran's previously assigned 10 percent evaluation under Diagnostic Code 5276.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  That particular rating code expressly contemplates limitation of motion manifested by pain on manipulation and use of the feet.  Id.  Therefore, the Veteran is precluded from receiving a compensable rating under Diagnostic Code 5276 during the period in which he is also receiving compensation under the arthritis codes.  38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1 (2012).  Indeed, to grant such a benefit would not only contradict the language of the codes themselves but would also violate the rule against pyramiding.  See 38 C.F.R. § 4.14; Esteban, supra.  Nevertheless, the Board finds that it is to the Veteran's advantage to relinquish his single 10 percent rating under Diagnostic Code 5276 for the period since September 23, 2011, during which he has met the criteria for separate 10 percent ratings for osteoarthritis.

In making the above determinations, the Board has confined its analysis to the parameters of the VA Rating Schedule.  38 C.F.R. Part 4 (2012).  Accordingly, the Board must now consider whether the Veteran's bilateral foot disability presents an exceptional case such that an extraschedular rating may be provided.  38 C.F.R. § 3.321.  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

In this case, the Veteran has not contended that the specific schedular criteria used to rate his claim are inadequate to describe the severity and symptoms of his bilateral pes planus with accompanying calcaneal spurs and osteoarthritis.  Moreover, he has not expressly contended, and the record has not otherwise shown, that this service-connected disability has resulted in frequent hospitalizations or marked occupational interference beyond that addressed by VA's Rating Schedule.  The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012).  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 (2012).  Indeed, this is especially the case with respect to the musculoskeletal rating codes, detailed above, which contemplate functional impairment as a factor in the assignment of a schedular evaluation.  38 C.F.R. § 4.84(a).

Accordingly, the Board finds that any degree of impairment associated with the Veteran's bilateral foot disorder is already contemplated by the applicable schedular criteria.  Van Hoose v. Brown, 4 Vet. App. 361 (1993) (disability rating is recognition that industrial capabilities are impaired).  In light of the above, the Board finds that a remand for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.  Thun, supra; Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996).

In arriving at this conclusion, the Board remains sympathetic to the Veteran and does not question the sincerity of his belief that his bilateral foot problems warrant higher ratings, either on a schedular or extraschedular basis.  Moreover, the Board recognizes that the Veteran is competent to report musculoskeletal symptoms, such as pain and weakness, which are capable of lay observation.  Layno v. Brown, 6 Vet. App. 465 (1994).  Further, the Board considers the Veteran's contentions to be credible in the absence of any evidence to the contrary.  Caluza v. Brown, 7 Vet. App. 498, (1995).  Nevertheless, the Board observes that, as a lay person without the appropriate medical expertise, the Veteran is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability within the context of the applicable schedular or extraschedular rating criteria.  Bostain v. West, 11 Vet. App. 124 (1998).  Therefore, the Veteran's contentions, standing alone, are insufficient to refute the probative assessments of the VA examiners upon which the Board has relied in determining the most appropriate rating for his bilateral pes planus with calcaneal spurs and osteoarthritis.  

In sum, the weight of the competent and credible evidence shows that the Veteran's service-connected bilateral foot disorder has warranted a single 10 percent rating for the period prior to September 23, 2011, and separate 10 percent evaluations since that time.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5084 (2012).  Such staged ratings most appropriately contemplate the progression of the Veteran's service-connected disability throughout the pendency of this appeal.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  However, the preponderance of the evidence weighs against the assignment of any separate or higher rating beyond that which has been granted and, thus, such a rating must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Service Connection

The Veteran alleges that he currently suffers from disabilities of right knee and foot (in addition to his service-connected pes planus) as well as heart, eye, and skin disorders, which all had their onset during his brief period of World War II-era service.  As such, he maintains that service connection is warranted for all of these conditions.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic disorders, including arthritis and cardiovascular-renal disease, may be established based upon a legal 'presumption' by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Additionally, under section 3.310(a) of VA regulations, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

The Board now turns to the pertinent evidence, beginning with the Veteran's service treatment records.  Those records reflect that the Veteran was diagnosed with bilateral pes planus at the time of his separation examination, but are otherwise devoid of any complaints or clinical findings of right knee or foot problems.  Nor do those records reveal any subjective or objective evidence of heart, eye, or skin pathology.  Accordingly, chronicity in service has not been established with respect to any of the Veteran's service connection claims.  

While the Veteran now attests to a continuity of right lower extremity, eye, heart, and skin symptomatology since service, the earliest evidence of relevant complaints or treatment is dated many years after his active duty.  Indeed, the record reflects that, beginning in the late 1990s, the Veteran began seeking treatment for chronic pain, which radiated from his lower back into his right lower extremity.  Specifically, a report of a July 1999 radiographic examination notes subjective complaints of right knee and foot pain; however, the only clinical pathology in his right lower extremity was found to consist of arterial calcifications and calcaneal spurs consistent with a diagnosis of flat feet.  Thereafter, in February 2000, the Veteran again complained of pain, which was attributed to diagnoses of hallux limitus and bilateral calcaneal spurs.  Subsequent private treatment records, dated in March 2005, reflect additional complaints of lower back pain radiating into the right lower extremity, while X-rays captured in September 2007 reveal degenerative joint disease of the right knee.  However, with the exception of the Veteran's service-connected pes planus, none of the problems affecting his right lower extremity has been clinically related to his period of service.  Moreover, no VA or private clinician has related the Veteran's pes planus to any of his other right lower extremity pathology.  Instead, that pathology has been consistently attributed to a post-service July 1969 motor vehicle accident in which he reportedly suffered severe injuries.

The above motor vehicle accident also has been cited by VA clinicians as the onset of the Veteran's vision loss and other eye problems.  Indeed, a May 2006 VA treatment note references a history of poor vision in the right eye secondary to a chroidal rupture incurred in that accident.  Contemporaneous treatment records reveal diagnoses of bilateral posterior vitreous detachment with pseudophakia, a macular pucker of the left eye, and age-related bilateral macular degeneration.  Other ophthalmologic records show that the Veteran has undergone periodic follow-up treatment for cataracts, including a November 2001 extraction surgery followed by insertion of a posterior chamber intra-ocular lens.  Significantly, however, none of the Veteran's eye problems has been attributed to his period of World War II-era service.

Nor have any of the Veteran's current heart problems been linked to his prior service.  Rather, the earliest evidence of such problems is a report of a July 1971 VA examination, which revealed a history of high blood pressure.  Subsequent VA medical records dated from April 1997 to October 1999 reflect treatment for hypertension, exertional angina, and coronary artery disease warranting cardiac catheterization, angioplasty, and placement of a stent.  Notwithstanding that extensive treatment, none of the Veteran's cardiac care providers has suggested that his heart problems were in any way caused or aggravated by his active service.

Similarly, while the record reflects that the Veteran has undergone outpatient treatment since the late 1970s for a plethora of skin diseases - alternately diagnosed as tinea corporis, tinea cruris, tinea incognito, xerosis, onychomycosis, gyrate erythema, nummular eczema, hyperpigmentation, intertrigo, erythema, nummular eczema, and nummular dermatitis - none of those conditions, which primarily affect his thigh, buttocks, and abdominal region, has been clinically attributed to his active service.  Nor has any scarring caused by those conditions.

Absent competent and credible evidence relating the above conditions to an injury or event during the Veteran's service, or to his service-connected pes planus (the only condition for which VA compensation benefits are in effect) the Board finds that VA examinations are not warranted with respect to his right lower extremity, heart, eye, and skin disability claims.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Moreover, in light of the foregoing, the Board finds that the only lower extremity disability that has been positively and probatively associated with the Veteran's active service is the bilateral pes planus for which he is already service connected.  As discussed in the preceding section, that disability is clinically indistinguishable from the Veteran's diagnoses of flat feet, bilateral calcaneal spurs, and osteoarthritis of the metatarsal joints.  As such, while mindful that those particular diagnoses have been raised in connection with the Veteran's pending right knee and foot claim, the Board finds that they are effectively contemplated by his existing service connection award.  See Mittleider v. West, 11 Vet. App. at 182.  Further, the Board finds that none of the right knee and foot symptoms that fall outside the scope of that prior award have been positively linked to the Veteran's active service.  

The Board also finds that none of the Veteran's currently diagnosed heart, eye, or skin problems has been probatively related to any aspect of his active service.  Indeed, no VA or private clinician has opined as to such a relationship.  Moreover, the Board considers it significant that, notwithstanding the Veteran's own assertions to the contrary, the overall evidence of record does not suggest a continuity of symptomatology in connection with his claims for right knee and foot, heart, eye, and skin disorders.  Indeed, the first instance of complaints or clinical treatment for any of those conditions is dated more than 25 years after the Veteran left the military.  In this regard, the Board observes that, while the operative inquiry is whether there is a continuity of symptoms since the incurrence of a claimed injury or disease in service, rather than with a continuity of treatment, the lack of such evidence weighs against the Veteran's claims.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Service connection also is not warranted on a presumptive or secondary basis.  On the contrary, the Veteran did not exhibit any right lower extremity problems, apart from pes planus, in service or within a year of his separation from the military.  Nor did he display any cardiovascular symptoms during either of those periods.  In this regard, the Board acknowledges that, at the time of the Veteran's 1971 VA examination, he reported a prior history of high blood pressure.  However, his account is uncorroborated by any of the medical records or examination reports that have been associated with his claims file.  The Board is mindful that the lack of such contemporaneous clinical evidence does not necessarily render the Veteran's account incredible.  See Buchanan, 451 F.3d at 1336.  Nevertheless, even affording the Veteran the benefit of the doubt and assuming he had hypertension before 1971, there has been no indication, either from the Veteran himself or the other evidence of record, that this condition had its onset in service or manifested to a compensable degree within a year of his discharge.  

Moreover, notwithstanding the proximity of the Veteran's pes planus to his right knee arthritis and radiculopathy, he has not contended, and the evidence has not otherwise shown, that this service-connected disability caused or permanently aggravated those other conditions affecting his right lower extremity.  Instead, as noted above, those other conditions have been consistently attributed to the low back and related joint injuries, which the Veteran incurred in the July 1969 motor vehicle accident.  Similarly, that post-service accident has been blamed for the Veteran's current eye problems.  Moreover, there has been no indication that those problems, or any of the Veteran's variously diagnosed skin disorders, are in any way attributable to his pes planus, the only disability for which he is service connected.

In sum, the Board finds that a basis for granting service connection for a right knee and foot disorder, other than pes planus, or for heart, eye, and skin disorders has not been presented under any of the applicable theories of entitlement.  Accordingly, the Veteran's appeal of those issues must be denied.

Claims to Reopen

The Veteran's 38 U.S.C.A. § 1110 service connection claims for gastrointestinal, respiratory, and psychiatric disorders were previously denied in a Board decision rendered in June 2005.  Although at that time the Board did not consider the Veteran's other psychiatric claim, filed pursuant to the provisions of 38 U.S.C.A. § 1151, it observed that this issue had also been previously adjudicated in a July 1999 RO rating decision.  Significantly, the Veteran was notified of both the prior Board and RO decisions, but did not initiate timely appeals.  Consequently, both of those decisions became final.  

The Veteran again sought VA benefits for the above disabilities in a November 2006 statement, which was construed as a request to reopen his previously denied claims.  Thereafter, in the January 2008 decision now on appeal, the RO declined to reopen the Veteran's gastrointestinal and respiratory claims.  In contrast, the RO effectively reopened and denied his psychiatric claims on the merits.  Notwithstanding the RO's actions, the Board must still consider whether new and material evidence has been received with respect to all four claims as this will determine whether the Board has jurisdiction to reach those claims and adjudicate them de novo.  Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
	
A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  New evidence is defined as evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether this low evidentiary threshold has been met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance.  Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element).

If, during an applicable appeals period, new and material evidence is received within one year after an RO rating decision, 60 days after a statement of the case, or at any time prior to a subsequent Board decision, that evidence will be considered as having been submitted in connection with the claim that was pending at the beginning of the appeals period.  38 C.F.R. § 3.156(b) (2012); Young v. Shinseki, 22 Vet. App. 461 (2009).  In such situations, the applicable rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim.  Buie v. Shinseki, 24 Vet. App. 242 (2010).  Thus, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.  38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).

While cognizant of the above provisions, the Board notes that the Veteran in this case did not submit any evidence specific to his 38 U.S.C.A. § 1110 claims until he applied to reopen those previously denied claims in November 2005.  Therefore, the Board finds that it need only consider the evidence submitted since November 2005, for purposes of determining whether it is sufficiently new and material to reopen those claims.  In determining whether to reopen the Veteran's 38 U.S.C.A. § 1151 claim, the Board must consider all of the evidence submitted since June 2002.  That is when the Veteran first expressed his desire to reopen his 38 U.S.C.A. § 1151 claim.  

The Board now turns to the reasons and bases underlying the last final denials of the Veteran's claims.  As reflected in the June 2005 decision, the Board declined to reopen the previously denied gastrointestinal claim based on a determination that the new evidence submitted was cumulative and redundant of that which existed at the time of the initial June 1951 denial.  The evidence considered in that initial decision, as noted by the Board, showed no link between any currently diagnosed gastrointestinal condition and the Veteran's brief period of World War II-era service.  

Additionally, the Board denied service connection for a respiratory disability based upon findings that the Veteran's COPD, bronchitis, and other respiratory ailments had not arisen for many years following his service and were not in any way caused or aggravated by that service.  

Similarly, the Veteran's claim for service connection for a psychiatric disorder under the provisions of 38 U.S.C.A. § 1110 was denied based upon a showing that his currently diagnosed major depressive disorder, with psychotic features, had not manifested in service or within the one-year presumptive period, and was not otherwise service-related.  

Although the June 2005 Board decision did not address the Veteran's other psychiatric claim, raised pursuant to 38 U.S.C.A. § 1151, that claim was also previously denied in a rating action that became final.  Specifically, the RO determined in July 1999 that the Veteran's currently diagnosed depression had not been caused or aggravated as a consequence of clinical negligence during an October 1993 VA hospitalization in which he allegedly had been misdiagnosed with human immunodeficiency virus (HIV).  38 U.S.C.A. § 1151; VAOPGCPREC 40-97

In support of his application to reopen the above claims, the Veteran has submitted copies of medical records previously associated with the claims file, as well as new medical records showing treatment for a host of gastrointestinal problems.  He also has submitted old and new treatment records pertaining to multiple respiratory ailments, including bronchitis, COPD, asthma, and sinusitis.  

Additionally, the Veteran has directed VA's attention to his extensive history of VA treatment for mental problems ranging from alcohol abuse to anxiety to major depressive disorder with psychotic features to PTSD.  He also has submitted copies of prior written statements from his long-term VA treating psychiatrist, opining that the Veteran's severe depression and anxiety began in 1945, while he was serving in the Army, and that his overall psychiatric symptoms permanently worsened after he was mistakenly diagnosed with HIV.  Those written statements were previously considered by the Board, which determined that they were wholly predicated on the Veteran's own unsubstantiated assertions and, thus, of minimal probative value.  Significantly, however, the Veteran also has submitted a more recent February 2008 statement from the above VA mental health care provider, as well as report of a November 2011 VA mental disorders examination and a February 2012 opinion rendered by a different VA psychiatrist.  That new medical opinion evidence collectively indicates that not only did the Veteran's depression and anxiety arise in service and worsen following his October 1993 hospitalization, but that he also contracted PTSD as a direct consequence of both his general "fear of hostile military activity" in service and his HIV misdiagnosis .

After careful deliberation, the Board finds the above evidence to be both new and material, but only with respect to the Veteran's psychiatric claims.  In making this determination, the Board observes that the Veteran's bid to reopen his respiratory and gastrointestinal claims is predicated on treatment records that are largely duplicative of clinical evidence considered during the last final denial of those claims.  The Board is cognizant that the Veteran has also submitted new reports of medical treatment for gastrointestinal and respiratory problems- specifically, LUTS, diarrhea and sinusitis - which were not previously of record.  However, the Board finds that those medical records, while new, contemplate treatment for the same essential symptoms and diagnoses that were previously of record.  Moreover, those recently submitted VA medical records, which constitute the only new evidence proffered in support of his gastrointestinal and respiratory claims, fail to address the specific reasons and bases upon which those claims were previously denied.   Further, that new clinical evidence does not otherwise raise the possibility of reasonably substantiating those claims, including by triggering the need for a VA examination.  See Shade, 24 Vet. App. at 118.  On the contrary, while that clinical evidence shows that the Veteran's gastrointestinal and respiratory ailments continue to warrant periodic treatment, it does not suggest that any of those ailments were caused or aggravated in service.  As such, that evidence, while new, cannot be considered material and, thus, cannot serve as a basis for reopening his respiratory and gastrointestinal claims.   38 C.F.R. § 3.156(a).

Conversely, the recent medical opinion evidence pertaining to the Veteran's psychiatric claims is not only new but also material.  Indeed, that evidence collectively suggests that the diagnoses of major depressive disorder with psychotic features and anxiety, which were apparent at the time of the prior Board and RO decisions, as well as the diagnosis of PTSD, which was not previously of record, were all either caused or aggravated by his active service or by the diagnostic error of VA treating clinicians.  Such evidence is, at the very least, sufficiently suggestive of a nexus between the Veteran's current psychiatric problems and his active service, as well as his 1993 VA hospitalization, to trigger the need for a VA examination or etiological opinion.  See Shade, 24 Vet. App. at 118.  As such, that medical opinion evidence, which is presumed credible for the limited purpose of determining whether it is new and material, is sufficient to reopen the Veteran's psychiatric claims.
 
In sum, the Board finds that new and material evidence has not been presented with respect to the Veteran's previously denied gastrointestinal and respiratory claims and, thus, those claims are not reopened.  Conversely, new and material evidence has been introduced in support of the Veteran's psychiatric claims, both under the provisions of 38 U.S.C.A. § 1151 and 38 U.S.C.A. § 1110.  Consequently, both of those claims are considered reopened and, to that extent only, the appeal is granted.  

As discussed in further detail, below, the Board finds that additional development is needed before a final decision can be made with respect to the 38 U.S.C.A. § 1110 psychiatric claim.  In contrast, the evidence of record is sufficient to adjudicate his psychiatric claim raised under the provisions of 38 U.S.C.A. § 1151.  Thus, the Board will now proceed to the merits of that claim.

Entitlement to VA Benefits under 38 U.S.C.A. § 1151

At the outset, the Board observes that the Veteran filed his initial claim for a psychiatric disorder pursuant to 38 U.S.C.A. § 1151 in March 1999.  As noted previously, that claim was denied in a July 1999 RO rating action that subsequently became final, after which the Veteran submitted an application to reopen in November 2006.  Accordingly, the current version of 38 U.S.C.A. § 1151, which took effect October 1, 1997, applies to his reopened claim.  Under that existing statute, compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service connected.  A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and:

1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was: 

A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

B) an event not reasonably foreseeable; or

2) the disability was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 

38 U.S.C.A. § 1151.

As discussed in the preceding section, the Veteran contends that benefits are warranted under 38 U.S.C.A. § 1151 on the grounds that his mental health problems, which now include diagnoses of depression, anxiety, and PTSD, permanently worsened as a result of a misdiagnosis of HIV, which was allegedly rendered during a October 1993 hospitalization at a VA medical facility.  

A review of the Veteran's VA medical records confirms that he was indeed hospitalized in October 1993.  Moreover, those records show that he underwent an infectious disease screening on October 29, 1993.  At that time, the Veteran was noted to have diagnoses of coronary artery disease, bronchial asthma, an upper respiratory infection, and latent syphilis.  Significantly, however, a portion of the October 29, 1993, screening report is whited out, and the Veteran now contends that this deletion was made in order to retract a diagnosis of HIV, which had been rendered by the treating VA infectious disease specialist.  The Veteran further alleges that, upon learning of this diagnosis, he was cast into state of extreme anxiety, which exacerbated his preexisting psychiatric problems.  Compounding these problems, the Veteran now maintains, was the reaction of his spouse and children, who interpreted the HIV diagnosis as evidence that he had been "fooling around."  Moreover, while the Veteran concedes that, one month after receiving the HIV diagnosis, he was informed that it had been made in error, he nevertheless asserts that the "damage had been done" with respect to his family and that his relationship with them was never the same again.

The Veteran's assertions are corroborated by written statements from two VA treating psychiatrists.  Those statements, prepared in March 1999, February 2008 and February 2012, effectively restate the Veteran's own contentions regarding the erroneous October 1993 HIV diagnosis and note that it effectively worsened his preexisting depression and anxiety and caused him to develop PTSD.  Significantly, however, the March 1999 and February 2008 statements, which were rendered by the same VA psychiatrist and are largely identical, and the February 2012 statement, which was prepared by a different VA psychiatrist, offer no explanation for how an erroneous HIV diagnosis - which, by the Veteran's own admission, was corrected within a month's time - could have triggered a permanent worsening of his overall mental state.  Moreover, none of the statements reference any pertinent evidence apart from the Veteran's own assertions.

In addition to the above statements, the record contains a report of a November 2011 VA mental disorders examiner who diagnosed the Veteran with PTSD, noting that this condition was alternately related to his "fear of death or being killed in the military" and to his "misdiagnosis of HIV in 1993."  However, as with the statements from the VA treating psychiatrists, the November 2011 VA examiner's report offers no rationale in support of her opinion linking the Veteran's PTSD to his alleged misdiagnosis by the October 1993 VA infectious disease specialist.  Nor does that November 2011 report expressly indicate that the examiner reviewed the contents of the Veteran's claims file in rendering her positive nexus opinion.

Significantly, the subsequent evidence of record includes an August 2012 written statement from the chief of administrative medicine at the VA hospital where the November 2011 VA mental disorders examination was rendered.  In that statement, the August 2012 VA clinician indicated that, following a review of Veteran's complete medical records, the November 2011 VA examiner had decided to retract her prior opinion linking the Veteran's PTSD to his alleged HIV misdiagnosis.  The August 2012 VA clinician then rendered her own negative nexus opinion, asserting that not only were the Veteran's PTSD and related psychiatric symptoms unrelated to his October 1993 VA treatment but that this treatment itself never had included a formal diagnosis of HIV.  Instead, the August 2012 VA clinician observed that, "while it c[ould not] be determined what was blocked out as part of the subjective part of the [October 29, 1993, treatment] note, [t]his would not have mattered .... because the subjective portion was based on what the [V]eteran state[d] and [w]as not considered a diagnosis unless verified by actual tests."  The August 2012 VA clinician then noted that "a letter signed by the [V]eteran on November 22, 1993, state[d] that someone had indicated that he had a diagnosis of HIV and he wanted that statement omitted."  The August 2012 clinician further noted that, at the time of his November 1993 statement, the Veteran had indicated that he had been "made aware of a possible diagnosis in his chart that was not accurate and requested removal."  Therefore, the August 2012 clinician reasoned that the Veteran had "never had a misdiagnosis [of HIV] and the error in the subjective portion of the chart (the statements made by the Veteran himself, which were possibly misunderstood) [had been] blocked out in the chart in less than a month's time."  As such, that clinician concluded, the underlying typographical error "would not have impacted the Veteran's psychiatric state as the diagnosis of HIV never [had been] documented in his chart and [he] was well aware that the questionable diagnosis that was written as something he had said was removed in less than a month's time."

In view of the conflicting medical opinions offered by the Veteran's VA treating psychiatrists and the November 2011 VA examiner and the August 2012 VA clinician, the Board must now evaluate which opinion is most probative in this appeal.  See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (In its assessment of medical evidence, the Board can favor some medical evidence over other medical evidence so long as the Board adequately explains its reasons for doing so.)  In making this determination, the Board must consider whether the respective examiners were 1) fully informed of the pertinent factual premises (i.e., medical history) of the case; 2) provided a fully articulated opinion; and 3) supported that opinion with a detailed analysis.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

With regard to the first prong of this three-part inquiry, the Board observes that the August 2012 VA clinician reviewed the entire claims file, thereby demonstrating her familiarity with the pertinent facts of the case.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  Moreover, the Board considers it significant that this clinician's statement constitutes the most recent evidence of record and, thus, presumably took into account the countervailing opinions from the November 2011 examiner and the VA treating psychiatrists, which had been previously associated with the Veteran's claims file.  

In contrast, there is no indication that any of those earlier VA medical personnel had access to the relevant contents of the claims file.  The Board recognizes that claims file review is not a strict prerequisite for a medical opinion.  Nevertheless, the evidentiary weight assigned to such an opinion may be reduced if the clinician fails to acknowledge relevant evidence, particularly that which is contrary to the opinion.  Such is the case here.  Indeed, neither of the Veteran's treating psychiatrists made any mention of the fact that the portion of the October 23, 1993, infectious diseases treatment note which had been whited out, and which allegedly contained the errant HIV diagnosis, was reserved for the Veteran's subjective impressions.  That salient fact, which was flagged by the August 2012 VA clinician, indicates that any mention of HIV was derived from the Veteran's own statements (however misconstrued) and, thus, did not constitute an actual diagnosis.  By omitting that fact, the VA treating psychiatrists effectively undermined their arguments linking the Veteran's PTSD and other psychiatric problems to an errant HIV diagnosis since, as pointed out by the August 2012 VA clinician, such a diagnosis was never actually rendered.  Those VA treating providers further reduced the probative value of their opinions by declining to specify whether the Veteran's PTSD and other mental disorder diagnoses were predicated on the criteria set forth in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV).  38 C.F.R. § 4.125(a).  Accordingly, the Board considers those VA psychiatrists' opinions to be of reduced evidentiary weight, relative to the findings of the August 2012 clinician.  See Black v. Brown, 5 Vet. App. 177 (1993) (The Board is not bound to accept medical opinions that are based upon an inaccurate factual background.)  

Similarly, the Board places limited evidentiary weight on the November 2011 VA examiner's report; which was predicated on the same factual inaccuracy as the VA treating psychiatrist' opinions.  Indeed, the November 2011 VA examiner apparently recognized her inaccuracy in her subsequent decision to retract her positive nexus opinion, as explained by the August 2012 VA clinician.  The retraction of that opinion further reduces its probative value.  

Next, the Board observes that neither the VA treating psychiatrists nor the November 2011 VA examiner referred to any pertinent evidence of record apart from the Veteran's own unsubstantiated assertions regarding his alleged HIV misdiagnosis.  While such assertions are certainly relevant to the Veteran's appeal, they cannot serve as the sole basis for a medical opinion when, as in the instant case, there is other pertinent evidence to consider.  See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.) 

Turning to the second and third criteria for weighing medical opinion evidence, the Board observes that the August 2012 VA clinician rendered a definitively negative nexus opinion, which was supported by a reasoned analysis.  Conversely, the VA treating psychiatrists and November 2011 VA examiner each couched their opinions in language, which, while not wholly speculative, was somewhat tentative in nature as it seemed to attribute the onset of the Veteran's mental health problems to both his alleged October 1993 HIV misdiagnosis and his active service nearly 50 years earlier.  Moreover, none of those prior opinions was supported by any rationale.  As such, while mindful that the VA treating providers' credentials as psychiatrists, and the November 2011 examiner's status as a psychologist, qualified them to comment on the etiology of the Veteran's psychiatric problems, the Board considers their opinions to be less probative overall than the statement of August 2012 VA clinician.

Moreover, the Board finds that the August 2012 clinician's statement, which declined to link the Veteran's current psychiatric problems to his October 1993 VA hospitalization, is entitled to greater evidentiary weight than the Veteran's own account of such a relationship.  In this regard, the Board acknowledges that the Veteran is competent to report having been erroneously told that he had HIV by a VA medical provider in October 1993.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Nevertheless, the Board finds that, while the credibility of the Veteran's account is presumed for the limited purpose of reopening his claim, such is not the case when considering his claim for 38 C.F.R. 1151 benefits on the merits.  Justus v. Principi, 3 Vet. App. 510 (1992); Duran v. Brown, 7 Vet. App. 216 (1994); Kutscherousky v. West, 12 Vet. App. 369 (1999).  In this context, the Board must weigh the credibility of the Veteran's assertions by considering whether they are internally consistent and consistent with the other evidence of record.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Here, the Board finds that the credibility of the Veteran's statements is called into question by the fact that his contemporaneous VA treatment reports contain no mention of an errant HIV diagnosis.  Moreover, as noted above, while the October 1993 treatment record is partially whited-out, the deleted portion encompasses the Veteran's own impressions, rather than the section in which a diagnosis would have been rendered.  This suggests that, while the Veteran may have professed the belief that he had HIV, and his impression may have been transcribed by a VA treating provider, such a misdiagnosis was not actually rendered by a VA clinician.  In this regard, the Board observes that there is a presumption of regularity that VA officials, including medical personnel, perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations.  See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners).  As such, without a more substantial showing of error, the Board is unable to presume that the October 1993 VA treating provider formally misdiagnosed the Veteran with HIV, as he now contends.  

Even assuming that the Veteran's assertions regarding an errant HIV diagnosis were wholly competent and credible, there would still need to be probative evidence showing that this error on the part of VA medical personnel caused or permanently worsened his mental health problems.  Such evidence has not been presented here.   Indeed, while the Veteran himself may believe this to be the case, he has not shown that he has the clinical expertise to comment on complex medical issues, such as the nature and etiology of his current psychiatric disorders.  See 38 C.F.R. § 3.159(a)(1) (2012) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.).  

In summary, the Board finds that the preponderance of the competent and credible evidence does not show that depression, anxiety, PTSD, or any other psychiatric disorder was caused or aggravated as a consequence of an alleged misdiagnosis of HIV by an infectious disease specialist at a VA medical center in October 1993.  Nor does the probative evidence of record otherwise weigh in favor of granting the Veteran's claim for a psychiatric disorder under the provisions of 38 U.S.C.A. § 1151.  As such, the Board finds that the benefit-of-the-doubt rule is inapplicable to the Veteran's claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 and that claim must be denied.  See 38 U.S.C.A §5107.


ORDER

Prior to September 23, 2011, a rating in excess of 10 percent for pes planus is denied.

Since September 23, 2011, separate 10 percent ratings for pes planus with calcaneal spurring and osteoarthritis of the right and left feet is granted, subject to the rules and regulations governing the payment of VA monetary benefits. 

Service connection for a right knee and foot disorder other than pes planus is denied.

Service connection for a heart disorder is denied.

Service connection for an eye disorder is denied.

Service connection for a skin disorder is denied.

New and material evidence having not been presented to reopen a claim of entitlement to service connection for a gastrointestinal disorder, the Veteran's claim is not reopened; and the appeal is denied.

New and material evidence having not been presented to reopen a claim of entitlement to service connection for a respiratory disorder, the Veteran's claim is not reopened; and the appeal is denied.

New and material evidence having been presented, the claim of entitlement to VA benefits under 38 U.S.C.A. § 1151 for psychiatric disability is reopened.

New and material evidence having been presented, the claim of service connection for a psychiatric disorder is reopened.

Entitlement to benefits under 38 U.S.C.A. § 1151 for a psychiatric disorder is denied.





REMAND

For the reasons set forth above, the Board has decided to reopen the Veteran's claim for service connection for PTSD, or any other psychiatric disorder, under the provisions of 38 U.S.C.A. § 1110.  

At the outset, the Board observes that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), under the criteria of DSM-IV; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) (2011).

VA has amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors.  75 Fed. Reg. 39843 (July 13, 2010).  The amendments, which took effect July 13, 2010, provide that if a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); 75 Fed. Reg. 39843 (July 13, 2010).

The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's 'fear of hostile military or terrorist activity.' In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist.

In this case, the Veteran has submitted statements from multiple VA treating psychiatrists, each of whom opines that the Veteran's PTSD, anxiety, depressed mood, and related psychiatric symptoms (poor sleep and auditory hallucinations) had their onset during his brief period of Army service.  Also, as previously noted, the Veteran has undergone a November 2011 VA mental disorders examination, which has yielded clinical findings of PTSD predicated on both an alleged VA misdiagnosis of HIV and an in-service stressor loosely defined as "intense fear of death and being killed during military."  

Significantly, the VA treating psychiatrists and the November 2011 VA examiner have not provided any rationale in support of their opinions linking the Veteran's PTSD, anxiety, depression and related symptoms to his active service.  See Davidson, 581 F.3d at 1316.  Nor have those clinicians indicated that their opinions were based on a review of the claims file.  See 38 C.F.R. § 4.1 (2012) (to ensure a thorough examination and evaluation, the Veteran's disability must be viewed in relation to its history).  Such omissions are significant in light of the fact the Veteran's service treatment records are wholly devoid of any evidence of psychiatric problems during his eight-month Army tenure, which did not include any overseas or combat service.  Moreover, the earliest evidence of complaints or treatment for psychiatric problems is dated in June 1973, nearly 30 years after the Veteran's Army discharge.  As such, the Board is unable to fathom the basis upon which the above VA treating clinicians and VA examiner determined that the Veteran's current psychiatric symptoms had their onset in service.  

The Board is also uncertain as to whether the diagnosis of PTSD, rendered by the VA treating providers, comports with the criteria set forth in the DSM-IV.  As noted above, such criteria must be taken into account in any psychiatric diagnosis rendered for VA purposes.  See 38 C.F.R. §§ 3.304(f), 4.125(a).  

Unlike the above treating providers, the November 2011 VA examiner did consider the DSM-IV in her diagnosis of PTSD.  However, the Board remains unclear as to whether that diagnosis is still valid, given that it was predicated in part, upon an alleged stressor (misdiagnosis of HIV), which has since been discredited.  The Board recognizes that the November 2011 examiner also attributed the Veteran's PTSD to his "intense fear of death or being killed" in the military.  Nevertheless, the Board observes that this vague assertion does not rise to the level of a credible stressor, even under the relaxed standards of the 38 C.F.R. § 3.304(f) amendment.  As such, the Board is unable to determine whether the Veteran's purported PTSD is based upon a credible in-service stressor - i.e., one consistent with the places, types, and circumstances of his active duty --  such that service connection may be granted.  

In light of the foregoing uncertainties, the Board finds that the Veteran should be afforded a follow-up VA examination to clarify whether he meets the requisite DSM-IV criteria for PTSD, or any other psychiatric disorder, and, if so, whether any such disorder is predicated upon a specific in-service stressor involving a 'fear of hostile military or terrorist activity, or is otherwise related to his active service.  

Finally, the Board finds that the Veteran should be afforded proper notice regarding the amended provisions of 38 C.F.R. § 3.304(f) pertaining to verification of in-service stressors for a service connection claim for PTSD.  Those amended provisions took effect July 13, 2010, after the Veteran had been sent his initial notice letter in connection with his application to reopen his previously denied psychiatric claim.  Therefore, he has not yet been notified of those provisions and, thus, may be uncertain of the current legal and evidentiary requirements governing claims for service connection for PTSD predicated on stressors involving hostile military and terrorist activity.  It is crucial that any such uncertainty on the Veteran's part be resolved on remand in order to ensure that he has been afforded sufficient due process in connection with his claim.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Send the Veteran a notice letter regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for an acquired psychiatric disorder, to specifically include PTSD.  Such notice should expressly inform the Veteran of the amended provisions of 38 C.F.R. § 3.304(f).  

2.  Notify the Veteran that he may submit lay statements regarding the nature, onset and continuity of his psychiatric problems.  Those statements may come from the Veteran himself as well as from other individuals who have first-hand knowledge of such symptoms.  He should be provided an appropriate amount of time to submit this lay evidence.

3.  After the above development has been completed, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric disability diagnosed.  The claims folder must be reviewed in conjunction with the examination and the examiner's report should note that review.  Any testing deemed necessary should be conducted and results reported in detail.  A fully supported rationale must be provided for all opinions.  In preparing the requested opinions, all pertinent evidence of record, including assertions from the Veteran and other lay parties, should be considered.  

The VA examiner's opinion should specifically address the following: 

a)  Diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV).

b)  Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM- IV.

c)  If a diagnosis of PTSD is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is based and state whether each stressor is related to the Veteran's fear of hostile military or terrorist activity.  Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

d)  Discuss whether it is at least as likely as not (50 percent or more probability) that any other currently diagnosed psychiatric disorder, but excluding drug or alcohol abuse, had its onset in service.  

4.  Then readjudicate the claim.  If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs