Citation Nr: 1307432 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 11-25 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a stomach disability, claimed as an ulcer. 2. Entitlement to an initial evaluation in excess of 10 percent for traumatic arthritis of the left elbow with painful motion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1957 to March 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) from April 2011 and September 2011 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran previously filed a claim of entitlement to service connection for a stomach disability in June 1984. The RO requested copies of the Veteran's service treatment records. However, the National Personnel Records Center (NPRC) informed the RO that the Veteran's service treatment records had been destroyed in the 1973 fire at the NPRC facility in St. Louis, Missouri. In August 1984, the RO sent the Veteran a letter advising him of the unavailability of his service treatment records and requested additional evidence and information pertaining to his claim. Moreover, the letter informed the Veteran that if the evidence and/or information requested was not received within one year of the date of the letter (August 28, 1984), any benefits the Veteran may be entitled to may not be paid for any period before the date of receipt of the evidence and/or information. The Veteran did respond to the letter in September 1984, but provided no additional information than that which he had included in his June 1984 claim form. The RO sent the Veteran another letter in November 1984 requesting any copies of service treatment records in his possession, or, in the alternative, that he complete a GSA Form R6-7284. However, no response from the Veteran was received. Thus, the Veteran's claim was considered abandoned. See 38 C.F.R. § 3.158(a) (2012) (when evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned). In sum, the Veteran's 1984 claim for service connection for a stomach disability was never adjudicated by the RO, and there is no final denial of the claim. Therefore, although the RO treated the Veteran's more recent July 2010 claim for a stomach disability as requiring new and material evidence, the Board finds that new and material evidence is not necessary in this case, as there was no prior final adjudication of the claim. In June 2012, the Veteran's representative submitted a statement indicating that the Veteran wished to submit a claim of entitlement to service connection for left arm and shoulder nerve damage and for an increased rating for his service-connected left wrist disability. The issues of entitlement to service connection for left arm and shoulder nerve damage and to an increased rating for a left wrist disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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). FINDINGS OF FACT 1. Symptoms of stomach disability were not chronic in service, have not been continuous since service separation, peptic ulcers did not manifest to a degree of ten percent or more within one year of service separation, and the current stomach disability is not related to active service. 2. Throughout the initial rating period on appeal, the Veteran's left elbow disability has been manifested by flexion to 130 degrees, extension to zero degrees, pronation to 80 degrees, supination to 80 degrees, objective evidence of pain following repetitive motion but no additional limitations after repetition, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach disability, including presumptive service connection for peptic ulcers as a chronic disease, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2011). 2. The criteria for an initial evaluation in excess of 10 percent for traumatic arthritis of the left elbow with limited motion have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5207 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Stomach Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as peptic ulcers, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran contends that he has a current stomach disability that began during active service. Specifically, he avers that, during active service, in 1957, while stationed in Germany, he had stomach ulcers that ruptured and had to be surgically cauterized to stop the bleeding. He avers that he continues to take medication for the same stomach problem, and that a more recent biopsy revealed the scars from the in-service 1957 surgery. As mentioned above, the Board notes that the Veteran's service treatment records are not available. In circumstances such as this, where the original service treatment records are unavailable, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The claims file does include a March 1959 DA Form 1811, entitled "Physical and Mental Status on Release from Active Service," which indicates that the Veteran was considered physically qualified for separation, noting that his physical profile at the date of separation was normal. This form does not indicate that the Veteran had any stomach problems at the time of his separation from service in March 1959. Even so, in light of the unavailability of any other service treatment records, the Board will consider whether the post-service evidence shows continuity of stomach symptoms, such that service connection is warranted. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates symptoms of a stomach disability have not been continuous since separation from active service in March 1959, more than 50 years ago. Following service separation in March 1959, the evidence of record does not show any complaints, diagnosis, or treatment for a stomach disability until January 1988, when the Veteran reported upper abdominal pain extending into his chest and that he was taking medication for possible reflux. In March 1989, the Veteran reported three weeks of "ulcer" symptoms consisting of increased bloating and abdominal distress, and stated that he had a thirty year history of peptic ulcer disease. However, the absence of post-service complaints, findings, diagnosis, or treatment for nearly thirty years after service separation until 1988 is one factor that tends to weigh against a finding of continuous symptoms of a stomach disability after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence showing that stomach disability symptoms have not been continuous since service separation includes a January 1980 Medical Certificate which lists a number of current symptoms but does not include any complaints or history of stomach or abdominal distress. The Veteran's failure to report any stomach symptoms at this January 1980 examination is probative evidence against his claim. Moreover, post-service VA treatment records do not demonstrate a current diagnosis of peptic ulcer disease (or any other ulcers). Indeed, an April 1989 endoscopy revealed gastritis with no notation of any ulcers, and current VA treatment records show a diagnosis of gastroesophageal reflux disease (GERD), but no other gastrointestinal problems. The lack of any documentation of a post-service diagnosis of an ulcer weighs against the Veteran's contention that he continues to suffer from residuals of the ulcers he avers he received treatment for during active service. The Board next finds that the weight of the evidence demonstrates that peptic ulcers did not manifest to a compensable degree within one year of service. As noted above, the March 1959 DA Form 1811 was negative for any symptoms, diagnosis, or history of a stomach disability, including ulcers. Further, as discussed above, there are no post-service treatment records that show the presence of a peptic ulcer. As a peptic ulcer did not manifest to a compensable degree within one year of service, there is no factual basis to support a presumption of service connection for peptic ulcers as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had symptoms of a stomach disability since separation from service in March 1959, more than 50 years ago, the Board finds that, while the Veteran is competent to report the onset of stomach disability symptoms, his recent report of continuous stomach disability symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to continuous stomach disability symptoms after service are not credible because they are outweighed by other evidence of record that includes the more contemporaneous March 1959 DA Form 1811 which is negative for any complaints, history, or diagnoses of a stomach disability, the lack of any post-service documentation of treatment or diagnoses of a stomach disability for nearly thirty years after service separation until 1988, and the January 1980 Medical Certificate which includes a number of physical complaints, but no mention of stomach problems. In effect, his statements at service separation and following service outweigh his current statements. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current stomach disability (diagnosed as GERD) and his military service, including no credible evidence of either an in-service stomach disease or injury, chronic symptoms of a stomach disability during active service, or continuity of symptomatology of a stomach disability, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion. Even assuming the Veteran underwent surgical cauterization of stomach ulcers during active service (which is very unclear) as he avers, there is no credible evidence of any residuals of the in-service surgery and treatment, as shown by the negative DA Form 1811 and lack of documentation of post-service stomach symptoms for nearly thirty years after service separation. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a stomach disability, and outweighs the Veteran's more recent contentions regarding in-service chronic stomach disability symptoms and post-service stomach disability symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Higher Initial Rating for Arthritis of the Left Elbow Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's elbow disability has been evaluated under Diagnostic Code 5207, found in the Schedule of Ratings for the Musculoskeletal System under 38 C.F.R. § 4.71a. Under Diagnostic Code 5207, which addresses limitation of extension of the forearm, 10, 10, 20, 20, 30, and 40 percent evaluations are assigned where extension of the forearm of the minor extremity is limited to 45, 60, 75, 90, 100, and 110 degrees, respectively. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. As above, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartright, 2 Vet. App. at 25 ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales, 218 F.3d at 1380-81; Timberlake, 14 Vet. App. at 128-30. In the present case, service connection for the left elbow disability was granted in the September 2011 rating decision that is the subject of this appeal. An initial 10 percent evaluation was assigned, effective from July 27, 2010, the date the Veteran's claim for service connection was received. The Veteran, including through his representative, contends that that his left elbow disability symptoms, which include tender motion and weakness, warrant an initial rating higher than 10 percent. Moreover, he avers that he deserves a higher initial rating in light of the severity of the left arm injury during service. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for service-connected traumatic arthritis of the left elbow with limited motion for the entire initial rating period on appeal. For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected left elbow disability did not manifest extension limited to 75 degrees or more, as required for an evaluation in excess of 10 percent under Diagnostic Code 5207. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in April 2011. It was noted that, during active service, he had fallen twice onto his left arm and suffered two separate breaks of the bone of the forearm (which is not in dispute). Currently, he reported intermittent pain in his forearm and wrist, as well as weakness of the forearm and wrist. With regard to the left elbow, he reported giving way, instability, pain, locking episodes occurring one to three times per month, and signs of inflammation including warmth and tenderness. He denied deformity, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, and effusion, providing evidence against this own claim. He reported severe flare-ups of pain that occurred weekly and lasted for hours, during which he stated he could not do anything with the left arm. The VA examiner summarized the elbow findings to include tenderness, abnormal motion, and weakness. On physical examination in April 2011, range of motion testing revealed flexion to 130 degrees, extension to zero degrees, pronation to 80 degrees, and supination to 80 degrees, with no objective evidence of pain with active motion. There was objective evidence of pain following repetitive motion, however, but no additional limitations after three repetitions of range of motion, providing more evidence against his claim. There was no ankylosis. Review of a January 2011 x-ray study showed moderate degenerative changes of the left elbow. The VA examiner assessed status post left forearm fracture times two with residual degenerative joint disease of the left elbow, and stated that the condition would have no significant effects on the Veteran's occupation (he had retired ten years prior by reason of age or duration of work). The VA examiner stated the left elbow disability would have moderate effects on sports, mild to moderate effects on chores, mild effects on recreation, traveling, and driving, and no effects on shopping, exercise, feeding, bathing, dressing, toileting, and grooming. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 10 percent for a left elbow disability is not warranted for any period, as the requirements of extension limited to 75 degrees or more have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5207. Indeed, at the 2011 VA examination, extension was not limited at all (to zero degrees), which would provide evidence against the current evaluation. In reaching its finding that the evidence did not show extension to 75 degrees or more for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 10 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the objective evidence of pain on after repetitive motion at the 2011 VA examination, the Veteran's report that he was unable to do anything with his left arm during weekly flare-ups of pain, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the 2011 VA examiner noted objective evidence of pain after repetitive motion, but that function and motion were not additionally limited after repetition; thus, even if the pain on extension is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category. Indeed, the extension measurement of zero degrees (in other words, unlimited extension) recorded at the 2011 VA examination following repetition does not even meet the minimum criteria for the currently assigned ten percent rating under Diagnostic Code 5207. 38 C.F.R. § 4.71a. Therefore, the Veteran's pain after repetitive motion has been taken into account, and, indeed, serves as the only basis for the currently assigned ten percent evaluation. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's statement that his pain sometimes prevented him from using his left arm. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (extension limited to 75 degrees or more) such as to enable a finding that the disability picture more nearly approximates the next-higher, 20 percent, evaluation under Diagnostic Code 5207. 38 C.F.R. § 4.71a. While the Board understands the Veteran's central concern that he has a debilitating left elbow disability, it is important for the Veteran to understand that a 10 percent evaluation indicates an impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a ten percent reduction in the Veteran's ability to function due to his left elbow pain. The critical question in this case, however, is whether the problems the Veteran has cited meet the next highest level under the rating criteria. For reasons cited above, they do not, at this time. As discussed above, without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. As mentioned above, the criteria for the currently-assigned 10 percent evaluation under Diagnostic Code 5207 is extension limited to 60 degrees or less. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial evaluation higher than 10 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 20 percent, rating category - extension to 75 degrees - even when taking into account additional loss of motion due to DeLuca factors. Even with such factors, the evidence does not show even the minimum criteria for the currently assigned ten percent rating. For these reasons, the Board finds that an initial disability rating in excess of ten percent is not warranted for any period. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, Diagnostic Code 5205 does not apply, as the evidence does not demonstrate ankylosis of the elbow. Diagnostic Code 5206 does not allow for a higher initial evaluation, as flexion has not been limited to 90 degrees or less. Diagnostic Code 5208 does not allow for a higher evaluation, as flexion has not been limited to 100 degrees, nor extension limited to 45 degrees. Diagnostic Code 5209 does not apply, as there is no evidence of a joint fracture of the elbow. Diagnostic Code 5210 does not apply, as there is no nonunion of the radius and ulna. Diagnostic Codes 5211 and 5212 do not apply, as there is no impairment of the ulna or radius, respectively, manifested by malunion or nonunion. Finally, Diagnostic Code 5213 does not apply, as there is no impairment of supination or pronation. In addition, the Board has considered Diagnostic Code 5010, which addresses traumatic arthritis. Diagnostic Code 5010 instructs traumatic arthritis to be rated as degenerative arthritis, which is address by Diagnostic Code 5003. In this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. There are no other applicable codes available for consideration. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 10 percent for traumatic arthritis of the left elbow with limited motion for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's left elbow disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's left elbow disability has manifested in arthritis and painful movement. The schedular criteria for rating the left elbow disability (38 C.F.R. § 4.71a, Diagnostic Code 5207) specifically provide for ratings based on the presence of painful arthritis and limitations of motion of the elbow (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the left elbow to the rating schedule, the degree of disability of the left elbow throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the left elbow disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. Because the appeal as to the left elbow disability rating arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a left elbow disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). With regard to the stomach disability claim, in a timely August 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's post-service VA and private treatment records, a VA examination report with regard to the left elbow disability, and the Veteran's statements. The Board notes, as above, that the Veteran's service treatment records are unavailable. The RO issued a Formal Finding of Unavailability in December 2010, outlining its multiple attempts to obtain copies of the Veteran's service treatment records. The RO also sent the Veteran a letter in December 2010 advising him that his service treatment records were unavailable, and asking him to submit any copies of his service treatment records he may have in his possession. However, the Veteran has not submitted any service treatment records. The Board finds that VA's duty to assist has been fulfilled with regard to attempting to obtain the Veteran's service treatment records, and that further efforts to obtain them would be futile. The Veteran has been afforded an adequate examination on the issue of rating the left elbow disability. VA provided the Veteran with an examination in April 2011. The Veteran's history was taken, and a complete examination with clinical measures was conducted, to include review of an x-ray study. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. Therefore, the Veteran has been afforded an adequate examination on the left elbow issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for a stomach disability; however, the Board finds that a VA examination is not necessary in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, although the Veteran' service treatment records are not available, a March 1959 DA Form 1811 indicates that the Veteran did not have any stomach problems at the time of service separation. Moreover, although the Veteran has repeatedly contended that he had ulcer surgery at a hospital in Germany during active service, he has not provided the name of the hospital such that the records from the hospital could be requested, nor is there any other documentation of a surgery during active service. Thus, there is no credible evidence that the Veteran sustained an injury, disease, or event relating to a stomach disability in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no continuity of symptoms of a stomach disability since service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a stomach disability. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's stomach disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's current stomach disability and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a stomach disability is denied. An initial evaluation in excess of 10 percent for traumatic arthritis of the left elbow with limited motion is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs