Citation Nr: 1308697	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  01-05 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease.

2.  Entitlement to service connection for a cervical spine disability, to include degenerative joint disease.

3.  Entitlement to service connection for a right arm disability.

4.  Entitlement to service connection for a left arm disability.

5.  Entitlement to service connection for a right elbow disability.

6.  Entitlement to service connection for a left elbow disability.

7.  Entitlement to service connection for temporomandibular joint syndrome.

8.  Entitlement to service connection for a pelvic disability, to include degenerative joint disease.

9.  Entitlement to service connection for hypertension, to include as being secondary to a service-connected disability.

10.  Entitlement to service connection for headaches, to include as being secondary to a service-connected disability.

11.  Entitlement to a compensable evaluation for bilateral anterior compartment syndrome prior to January 27, 2012, and in excess of 10 percent as of January 27, 2012.

12.  Entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee.

13.  Entitlement to an evaluation in excess of 10 percent for chondromalacia of the left knee.

14.  Entitlement to an evaluation in excess of 10 percent for bilateral pes planus.


(The issue of entitlement to a waiver of recovery of an overpayment of compensation benefits in the amount of $52,820.00 is the subject of a separate Board decision.)


REPRESENTATION

Appellant represented by:	David L. Huffman, Attorney at Law


WITNESSES AT HEARINGS ON APPEAL

Appellant, T.M. & J.M.


ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel


INTRODUCTION

The Veteran had active service from September 1974 to September 1977 and from September 1979 to March 1984.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 

In February 2009, the Veteran, T. M., and J. M., testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO.  A transcript of the hearing has been associated with the Veteran's claims file.

In April 2011, the Board reopened multiple claims for service connection for various disabilities.  The Board then remanded those claims, along with other claims for service connection, and the claims for increase, to include entitlement to a total disability rating based upon individual unemployability, for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.

While the case was in remand status, the RO awarded service connection for a psychiatric disorder and right ankle strain (two issues that were previously before the Board) and a total disability rating based upon individual unemployability.  Thus, these three issues are no longer part of the current appeal.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (notice of disagreement following denial of a particular claim for service connection cannot be construed as a notice of disagreement following the granting of service connection for that claim); Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (a notice of disagreement ceases to be valid if the RO grants the benefit sought on appeal, or the veteran withdraws the appeal).  

In the April 2011 decision, the Board noted the Veteran had raised an issue of clear and unmistakable error.  The matter was referred to the RO for additional development or clarification.  Thus far, there is no indication that the RO has considered the Veteran's statements or sought clarification of the matter.  Thus, it is referred again to the RO for any action deemed appropriate.  

The issues of entitlement to service connection for (1) headaches, to include as being secondary to a service-connected disability, and (2) hypertension, to include as secondary to a service-connected disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  The preponderance of the evidence is against a finding that a chronic lumbar spine disability, to include degenerative joint disease and degenerative disc disease, had its onset in service or that arthritis was manifested to a compensable degree within one year following service discharge.

2.  The preponderance of the evidence is against a finding that a chronic cervical spine disability had its onset in service or that arthritis was manifested to a compensable degree within one year following service discharge.

3.  The Veteran's right arm disability is not in any way related to any service-connected disability.  

4.  The Veteran's left arm disability is not in any way related to any service-connected disability.  

5.  The Veteran's right elbow disability is not in any way related to any service-connected disability.  

6.  The Veteran's left elbow disability is not in any way related to any service-connected disability.  

7.  The preponderance of the evidence is against a finding that temporomandibular joint syndrome had its onset in service or is otherwise related to service.  

8.  The preponderance of the evidence is against a finding that a pelvic disability had its onset in service or that arthritis was manifested to a compensable degree within one year following service discharge.

9.  Prior to January 27, 2012, bilateral anterior compartment syndrome was not manifested by a moderate muscle disability of either extremity or scars that were unstable or painful.

10.  As of January 27, 2012, bilateral anterior compartment syndrome has not been manifested by a moderate muscle disability or by three or four scars that are unstable or painful.

11.  Chondromalacia of the right knee has not been manifested by compensable limitation of extension, compensable limitation of flexion, or instability or subluxation of the right knee.

12.  Chondromalacia of the left knee has not been manifested by compensable limitation of extension, compensable limitation of flexion, or instability or subluxation of the left knee.

13.  Bilateral pes planus has not been manifested by objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities.


CONCLUSIONS OF LAW

1.  A lumbar spine disability, to include degenerative joint disease and degenerative disc disease, was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

2.  A cervical spine disability was not incurred in or aggravated by service nor may arthritis be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

3.  A right arm disability is not related to any service-connected disability.  38 C.F.R. §§ 3.303, 3.310 (2012).

4.  A left arm disability is not related to any service-connected disability.  38 C.F.R. §§ 3.303, 3.310 (2012).

5.  A right elbow disability is not related to any service-connected disability.  38 C.F.R. §§ 3.303, 3.310 (2012).

6.  A left elbow disability is not related to any service-connected disability.  38 C.F.R. §§ 3.303, 3.310 (2012).

7.  Temporomandibular joint syndrome was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

8.  Pelvic disability, to include degenerative joint disease, was not incurred in or aggravated by service nor may arthritis be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

9.  The criteria for entitlement to a compensable evaluation for bilateral anterior compartment syndrome prior to January 27, 2012, and in excess of 10 percent as of January 27, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.56, 4.73, Diagnostic Codes 5310, 5311, 5312 (2012) & Diagnostic Code 7804 (2007 & 2012).

10.  The criteria for entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012).

11.  The criteria for entitlement to an evaluation in excess of 10 percent for chondromalacia of the left knee have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012).

12.  The criteria for entitlement to an evaluation in excess of 10 percent for bilateral pes planus have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify & Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In September 2003, August 2006, December 2006, May 2008, and June 2008 letters, VA notified the Veteran of the information and evidence needed to substantiate and complete claims of entitlement to service connection and increased ratings, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  VA also informed the Veteran of how disability evaluations and effective dates are assigned.  

The Board was unable to find a "letter" wherein the RO addressed how to establish a claim for secondary service connection.  However, defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009).  In this regard, the Board notes that although the issue of entitlement to service connection for hypertension is being remanded below, during his February 2009 testimony, the Veteran and his representative set forth statements demonstrating their knowledge of the criteria to establish service connection on a secondary basis.  Moreover, with regard to the Veteran's bilateral arm and elbow disability claims, the Veteran asserts that those disabilities are related to his cervical spine disabilities.  However, for the reasons set forth below, because service-connection for a cervical spine disability has not been established, any claim seeking to establish service connection on a secondary basis related to those disabilities must be denied as a matter of law.  Thus, no additional action in this regard is warranted.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (determining that a remand would "unnecessarily [impose] additional burdens on the [Board] and [regional office] with no benefit flowing to the veteran"); Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA was inapplicable to a matter of purely statutory interpretation).

As to the duty to assist, VA obtained VA treatment records, private medical records, and the records relied upon by the Social Security Administration (SSA) in awarding the Veteran disability benefits.  VA has provided the Veteran with examinations in connection with all the claims on appeal.  As to the claims for increase, the examiner provided the relevant clinical findings in order for the Board to evaluate the level of severity of the disability.  Additionally, as to the claims for service connection, the medical opinions provided are adequate for adjudicative purposes.  In the examinations, the examiners reviewed the claims file, discussed the pertinent evidence of record, and provided a rationale for their ultimate conclusions.

In connection with the April 2011 remand, the Board requested that (1) VA obtain the SSA records and the vocational rehabilitation folder; (2) the Veteran submit the records from Luquette Chiropratic Clinic, and (3) VA provide the Veteran with examinations in connection with all the issues on appeal.  As noted above, VA obtained the SSA records.  In December 2011, the Veteran's representative submitted the records from Luquette Chiropratic Clinic.  VA also requested the Veteran's vocational rehabilitation folder.  In an April 2012 e-mail exchange, a rehabilitation technician wrote that the file had been "retired."  A review of the record reveals that another remand is not necessary to obtain the vocational rehabilitation file.  The purpose of obtaining the vocational rehabilitation file was in connection with the Veteran's claim for a total disability rating based upon individual unemployability, which benefit was granted in a May 2012 rating decision.  The Veteran has not alleged that the facts in that folder are relevant to the claims for increase.  Thus, the Board finds that the Veteran is not prejudiced by it not remanding the claims to obtain the folder.  For these reasons, the Board finds there has been substantial compliance with the Board's instructions in obtaining additional evidence.  See Soyini, supra.

As previously indicated, as to providing the Veteran with examinations in connection with all the issues on appeal, the Board finds there has also been substantial compliance with this part of the remand instructions.  As to each of the claims for service connection being decided herein, the examiner addressed the likelihood of whether the disability was incurred in or aggravated by service and provided a rationale of the opinion that was based upon medical principles and evidence in the claims file.  As to each of the claims for increase, the examiner addressed the clinical findings to allow the Board to determine the appropriate level of severity of the disability.  

VA has provided the Veteran with a hearing before a Decision Review Officer (DRO) (May 2008) and a Veterans Law Judge (February 2009) in connection with the appeal.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the May 2008 and February 2009 hearings, the DRO and the undersigned Veterans Law Judge fully explained the issues involved.  See DRO transcript and Board transcript.  The Veteran was represented at both hearings by private attorneys (from the same firm), who are well versed in veterans law.  As the Veteran's representative raised issues that had not been decided by the agency of original jurisdiction at the time of the DRO hearing (service connection for temporomandibular joint syndrome and headaches), the DRO explained that he did not have jurisdiction over the issues, but he allowed testimony on them.  These issues were subsequently adjudicated in a December 2008 rating decision, and the Veteran perfected appeals therefrom.  The issues were discussed during the February 2009 Board hearing.

While the DRO and the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice, as the Veteran has shown actual knowledge of the evidence that is lacking in his claims for both service connection and increased ratings for the service-connected disabilities.  He has submitted medical opinions where the examiner has attributed disabilities to service, and he has provided testimony and statements asserting why he believes service connection is warranted.  At this point, the issues for service connection involve the weighing of evidence.  As to the claims for increased ratings, the RO has provided the Veteran with the criteria used to evaluate his disabilities, which has put him on notice of the evidence necessary to substantiate a higher rating.  Therefore, to the extent that the DRO and the undersigned did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice.

For the above reasons, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  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).

II.  Analysis

A.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.

Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(table).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

It is acknowledged that in a recent Federal Circuit decision, Walker v. Shinseki, ___F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Because diagnoses of degenerative joint disease of the cervical and lumbar spine as well as of the pelvis are of record, those claims are subject to consideration of entitlement to service connection based upon continuity of symptomatology as "arthritis" under 38 C.F.R. § 3.309(a).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by the Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury.  38 C.F.R. § 3.310.  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.  The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006.  The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

At the May 2008 Decision Review Officer hearing, the Veteran testified that he sustained an injury to his back during basic training, when he was doing sit-ups.  He stated that a sergeant came up behind him and pushed him all the way forward, and that he passed out for a "few moments."  The Veteran testified he injured his low back and was sent to the dispensary, which put him on light duty.  He described having pain in his legs, back, and arms.  He stated he complained of low back pain throughout his service since the drill instructor had pushed him.  The Veteran testified that when he was stationed in Alaska, he was in an automobile accident, when he reinjured his back and arms and had whiplash and "some kind of compression fracture."  See transcript on page 16.  The Veteran's representative noted that the pain in the Veteran's arms was from the cervical spine.  The Veteran was asked if he underwent any CAT scans or MRIs at the time of the automobile accident, and the Veteran stated he did not.  He stated that while complaining of his compartment syndrome symptoms, he also complained of back pain but that "no one paid any attention."  Id. on page 18.  The Veteran stated that prior to his service discharge, he was complaining of his cervical and lumbar spine, pain down his arms, and pain down his legs; that it was not limited to the pain from the compartment syndrome.  The Veteran testified he had been in a motor vehicle accident in 1990, which he stated merely increased his low back and neck pain.  

The Veteran's former spouse testified as well.  She stated she and the Veteran were married from 1974 to 1991.  She described him as being in pain a lot in his back and neck and arms/hands.  

At the February 2009 Board hearing, the Veteran testified that he first developed a pelvic problem in 1974 during basic training when he was doing sit-ups and his drill sergeant came up behind him and pushed him forward.  He stated that the 1982 motor vehicle accident aggravated the disability.  The Veteran stated that the same thing happened to his low back-it was injured in 1974 and aggravated in 1982.  The Veteran's representative noted that the disabilities involving his upper extremities were neuralgia, which was related to the cervical spine disability.  The Veteran attributed these disabilities to the 1974 injury as well and stated they were aggravated in 1982.  As to the low back disability, the Veteran stated it began in 1974 and was aggravated in 1982.  The Veteran was asked whether he had given a private physician (Dr. Battle), who had provided a nexus opinion, a copy of his claims file back in 2001, and the Veteran stated he did.  

The Veteran's son provided testimony at the hearing.  He testified that the Veteran was not able to play ball with him.  He noted that he and the Veteran would play basketball when he was eight or nine years old.  The Veteran's son stated the Veteran was not able to do repetitive things like change a tire.  

Regarding the Veteran's appellate assertions, the Board acknowledges that he is competent to report the symptoms he experienced with his claimed disorders.  However, the Veteran's inconsistent statements throughout the pendency of the appeal have impacted the probative value of his statements and testimony in connection with all of his claims.  For example, the Veteran was seen in March 1982 with complaints of "having pain on back."  The examiner noted that the Veteran was involved in a car accident.  The Veteran had full range of motion, and x-rays of the lumbar spine were normal.  See March 1982 VA treatment record and x-ray report.  The next time the Veteran complained of back pain was in August 1982, approximately five months later.  The examiner wrote that the Veteran reported "body aches from hips to feet, soreness [for] 2 days."  The Veteran reported that the pain began in his low back and legs two days prior.  The examiner wrote, "No h[istory of] trauma."  

Contrast these records with the Veteran's post service complaints of having severely injured his low back in the March 1982 accident with chronic pain since then, and his subsequent assertions of having severely injured his cervical spine at the same time as the low back.  Yet, while reporting various complaints of pain and symptoms at the time of the March 1982 accident, the Veteran did not reference neck complaints.  As to his claim of chronic symptoms since the 1982 accident, he denied trauma five months later when complaining of back pain.

Additionally, on this issue, the Veteran underwent x-rays for his lumbar spine at the time of the March 1982 accident.  Again, x-ray findings were normal.  At a December 2001 VA examination, he reported he underwent an MRI of both the lumbar spine and the cervical spine.  He reported that the lumbar spine MRI showed a bulging disc at L5-S1 and that the cervical spine MRI showed a compression fracture and a bulging disc at the C5 and C6.  See examination report.  The service treatment records do not show that an MRI was performed on the lumbar spine or the cervical spine.  The report of a compression fracture in the cervical spine is not substantiated in the service treatment records.  The Board accords more probative value to the service treatment records, which were created contemporaneously with service, than statements the Veteran made almost 20 years following service discharge.  

Contrast what the Veteran reported to the December 2001 VA examiner that he underwent MRIs of both his cervical spine and lumbar spine to his May 2008 testimony that he did not undergo an MRI following the accident.  See transcript on page 17 (Mr. Huffman: "Did they ever do any CAT scans or MRIs or anything [in service following the accident]?"  Veteran: "None of that....  Just basically going in and []gave me some medication and said that you know to get better.").  This testimony is contradicts what the Veteran reported to the December 2001 examiner and lessens the Veteran's credibility.  

At the February 2009 hearing before the Board, the Veteran testified that he lost consciousness when he was doing sit-ups in basic training in 1974 and the drill sergeant pushed him forward.  See transcript on page 25.  However, in a May 1983 Report of Medical History completed by the Veteran at that time, he denied ever having or having then "Periods of unconsciousness."  See item # 11, third column.  The Veteran reported a positive history for multiple symptoms listed under item # 11, which would indicate that the Veteran did not check "No" for all medical questions asked.  Again, the Veteran's testimony contradicts the statement he made contemporaneously with service.

The Veteran's inconsistent statements weakened his credibility, which negatively impacts the probative value of multiple statements and testimony he has provided in connection with his claims for benefits.

1.  Lumbar spine disability

After having carefully reviewed the evidence of record, the Board finds that the evidence weighs against the claim of entitlement to service connection for a lumbar spine disability.  

The service treatment records do not substantiate a chronic low back disability, as alleged by the Veteran.  A November 1974 service treatment record shows that the Veteran reported a two-week history of left inguinal pain, which began while doing sit-ups.  Physical examination revealed the left hip to have full range of motion.  There was no inguinal hernia.  An x-ray taken at that time revealed calcifications below the pubic tubercle on the left.  X-ray of the hips was noted to be "ok."  This document shows the Veteran was given crutches.  However, there is no complaint regarding low back pain.  The Veteran reported pain in the other areas that he was experiencing at that time.  He did not report pain in his low back.

He was seen in June 1975 with complaints of pain in the low back and tingling in the legs.  Physical examination revealed full range of motion of the back.  Reflexes and motor strength were normal, and straight leg raising was negative.  The diagnosis was sprain of the vastis literalis with myositis.  

A December 1977 VA examination report shows the examiner noted that the Veteran "show[ed] good back mobility."  The Veteran was seen for low back pain following discharge from the first period of service in May 1978, which, initially, he reported began on April 18, 1978.  There is a letter from a private chiropractor, who noted the Veteran had presented to him on April 18, 1978, with back pain.  He wrote the Veteran underwent x-rays of the cervical, thoracic, and lumbar spine, which showed no evidence of fracture, dislocations and/or bone pathology.  He did, however, provide "chiropractic findings," which he summed up as subluxation complexes of all three areas of the spine.  

May 1978 treatment records show the Veteran subsequently reported that the low back pain had begun four years prior.  He was hospitalized in May 1978, and the VA hospitalization summary report does not show that a low back disability was diagnosed; rather, a psychiatric disorder was diagnosed.  

The Veteran re-entered service and the first documentation in the service treatment records of back pain was in March 1982, when he was seen with pain on his back.  The examiner wrote the Veteran had been "involve[d] in a car accident."  The examiner noted the Veteran had full range of motion, and an x-ray taken of the lumbar spine at that time was normal.  He was seen in August 1982 with "multiple somatic complaints."  The examiner wrote the Veteran had a two-day history of pain beginning in the lower back and involving the legs.  He noted there was no history of trauma.  The Veteran reported aching pain in the thighs, hamstrings, and lower legs.  The examiner found the back was without costovertebral angle tenderness.  While the Veteran reported a history of recurrent back pain in May 1983, clinical evaluation of the spine at that time was normal.  The Veteran seemed to be reporting a history versus stating that he currently had low back pain.  For example, in the May 1983 Report of Medical History, when asked for a statement of the examinee's present health, the Veteran wrote, "I am in poor and fair health. Problem with legs."  The summary of defects in the May 1983 Report of Medical Examination included four findings, and none of them involved the low back.  An October 1983 Report of Medical Examination shows that clinical evaluation of the spine was normal.  The Veteran continued to report low back pain in January 1984, which was a couple of months before service discharge and which the Veteran attributed to a lifting incident at that time.  When his back was examined at that time, he had full range of motion, excellent strength, intact sensation, negative straight leg raising, and his deep tendon reflexes were 2+ and equal.  

Following service discharge from the second period of service, the Veteran first claimed service connection for the neck and back in January 1986.  However, a February 1986 VA examination report shows the examiner, following clinical evaluation of the lumbar spine, concluded that it was "essentially normal to examination at the present time, no significant impairment of function."  An x-ray of the lumbar spine at that time was normal.  

Following this period, the next documented evidence of low back pain is in June 1989.  At that time, the Veteran reported "persistent lumbar pain for several months."  The examiner wrote, "He cannot recall a particular incident of injury.  He does relate that his original injury occurred in February of 1988 when he fell on a platform at [Texas Department of Corrections] in the Beto Unit #1 and was seen for a muscle pulled and back strain in my office at that time."  The examiner diagnosed thoracolumbar back pain with associated muscle spasm and history of back injury 14 months ago.  A CT scan of the lumbar spine was normal, as was a CT scan of the lower thoracic and upper lumbar spine.  A bone scan was also normal.  

When the Veteran was examined in August 1990, x-rays of the lumbar spine were normal.  The VA examiner noted the Veteran reported that he had begun working for the Texas Department of Corrections in 1986 but was relieved of that job in 1989 "after multiple complaints of having strained his back helping to pick up one of the prisoners."  The examiner indicated the Veteran was not cooperating in performing range of motion of the lumbar spine, but noted there was full passive range of motion, the lumbar and lumbosacral spine had normal curvature, and there no muscle spasm.  

A September 1997 MRI of the lumbar spine shows a disc bulge that did not impinge on the thecal sac and only minimally approached the S1 nerve roots without compressing either.  The other levels showed only minor degenerative disease.  No central canal stenosis was seen, and no large disc herniations were seen.  Thus, documented evidence of a low back disability was not shown for many years following service discharge in 1984.

The Board notes that it does not find any basis to consider the presumption of soundness as to the Veteran's second period of service based on the fact that the Veteran complained of low back pain between his first and second periods of service.  While the Board is aware that in the April 1978 letter from the chiropractor, he provided "chiropractic findings," which he characterized as subluxation complexes of the lumbar spine, the Board does not find that such constitutes evidence of a pre-existing disease or injury.  The chiropractor noted that x-rays of the lumbar spine showed no evidence of fracture, dislocations and/or bone pathology.  Additionally, x-rays of the lumbar spine in March 1982 and February 1986 were normal; a 1989 CT scan of the lumbar spine was normal, as was a bone scan; and August 1990 x-rays of the lumbar spine were normal.  Although "chiropractic findings" was noted, the independent evidence is clearly against a finding that the Veteran had a disability involving the lumbar spine in 1978.  In other words, the evidence is insufficient to establish by clear and unmistakable evidence that the disability pre-existed service.  Thus, the only issue the Board is considering is service incurrence.

In a January 2012 VA examination report, the examiner reviewed the claims file and determined it was less likely as not that the low back disability was incurred in or caused by service.  The examiner noted the complaints the Veteran made from 1975 to 1984, which he found were temporary conditions, as the October 1983 Report of Medical Examination and the February 1986 VA examination report showed no current low back disability.  He added that the February 1986 x-ray of the lumbar spine was normal.  The examiner noted the Veteran had had injuries to his back in 1989, 1990, and 1991, which he also labeled as temporary conditions.  He noted the 1997 MRI findings (of a disc bulge and minor degenerative changes) and wrote, "This would indicate the current spinal pathology occurred some 13 to 14 years later."  He added that the CT myelogram in 2008 and 2011 MRI showed significant degenerative spine and disc disease with spinal cord and neuroforaminal encroachment, which he explained was a normal progression of the disease process noted on the 1997 MRI.  The examiner concluded that these findings were the most reasonable medical explanation for the Veteran's current symptoms of low back pain with radiation into the lower extremities.  He added, in part:

Therefore, it is the opinion of this medical examiner that the current lumbar spine condition is a new and separate condition and is less than likely related to or caused by any inservice event.  A reasonable explanation is spine changes related to the normal aging process, especially since the Veteran has similar changes in the cervical spine.  Spondylosis is a natural process of aging, is seen in 10% of individuals by the age of 25 years and in 95% by the age of 65 years.

The examiner supported the last sentence with two medical publications.

The Board accords this medical opinion high probative value for multiple reasons.  The examiner clearly reviewed the evidence of record.  He addressed the relevant clinical findings over the years.  He provided an opinion, and then substantiated the opinion with evidence in the file and medical principles.  This is evidence against the claim.

The Veteran has submitted several medical opinions, where the examiner attributed the low back disability to the Veteran's period or periods of service.  In none of these opinions did the examiner provide a rationale for the opinion.  For example, in a March 1991 letter, Dr. J. M. Welch wrote he had treated the Veteran for the last six months with evidence of back pain, arm pain, and leg pain, which were related to ongoing degenerative changes in his back.  He stated these were related to a moving vehicle accident while in the military.  This medical opinion is accorded no probative value.  The examiner did not provide any rationale for his opinion, and it is unclear what evidence the examiner reviewed in providing this opinion.  

In December 2000 and March 2001 letters, Dr. C. C. Battle wrote that the Veteran was having chronic shoulder pain, as well as chronic degenerative arthritis in his neck, back, and legs, which "problems developed while he was in the service between 1974 and 1984 and are still causing him to be 100% disabled at this time."  He added that all of these problems were "definitely service-related."  Like Dr. Welch, Dr. Battle provided no rationale for this conclusion.  In a June 2001 letter, Dr. Battle added that he had reviewed "all of [the Veteran']s VA records from 1974 through 1984 in making the December 2000 opinion.  The Board is aware that the Veteran testified at the February 2009 hearing that Dr. Battle had reviewed his claims file (not just the records from 1974 to 1984) at the time he provided his medical opinion.  However, neither of these facts change the Board's finding that this medical opinion does not warrant any probative value.  Without the examiner providing a rationale, his medical opinion has no probative value, even if Dr. Battle had reviewed the claims file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (holding that "most of the probative value of a medical opinion comes from its reasoning").   The Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).

Finally, as to the Veteran's allegations of chronic low back pain since the 1974 injury or that his current low back disability is due to service, while the records document multiple complaints of low back pain, they also document that no chronic back disability was diagnosed until many years following service discharge.  The Veteran is competent to report complaints of pain and attribute symptoms to an in-service event; however, he is not competent to state that the cause of the pain is an actual disability due to an in-service disease or injury.  Further, the more probative objective evidence of record weighs against his assertions.  Service treatment records record no chronic back disability.  Examiners were physically examining the Veteran in the years following his service discharge in 1986 and 1990, and found no current disability.  See VA examination reports.  Post service intercurrent injuries are of record, including an on-the-job injury as well as additional motor vehicle accidents.  In January 2012, upon review of the claims file and examination of the Veteran, the examiner found that the Veteran's current back disorder was not related to service.  The medical examiner's finding was supported by a well-reasoned rationale.  The Board accords more probative value to the clinical findings and conclusions by medical professionals than the Veteran's own statements.  A medical professional has reviewed the evidence of record and found that the current low back disability is not a result of an injury or injuries during service, whereas the medical opinions provided in support of the Veteran's claims are conclusory and without a discussion of the pertinent evidence of record.  The Board finds that the 2012 medical opinion has not been outweighed by any other competent opinion, and the Veteran's statements or complaints of continuity of symptoms since service are of little or no probative value.

In summary, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease.  Additionally, there is no competent evidence of arthritis manifested to a compensable degree within one year following service discharge.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See Gilbert, 1 Vet. App. at 53.

2.  Cervical spine disability

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a cervical spine disability, do include degenerative joint disease.  

The service treatment records do not substantiate a chronic neck or cervical spine disability, as alleged by the Veteran.  A November 1974 service treatment record shows that the Veteran reported a two-week history of left inguinal pain, which began while doing sit-ups.  Physical examination revealed the left hip to have full range of motion.  There was no inguinal hernia.  An x-ray taken at that time revealed calcifications below the pubic tubercle on the left.  X-ray of the hips was noted to be "ok."  This document shows the Veteran was given crutches.  However, there is no complaint regarding neck pain.  The objective medical records recorded at that time independently verifies the Veteran's complaints and injuries, the Veteran reported pain in the other areas that he was experiencing at that time.  He did not report pain in his neck.  

The Veteran was seen for neck pain following discharge from the first period of service in May 1978, which, initially, he reported began on April 18, 1978.  There is a letter from a private chiropractor, who noted the Veteran had presented to him on April 18, 1978, with neck pain.  He wrote the Veteran underwent x-rays of the cervical, thoracic, and lumbar spine, which showed no evidence of fracture, dislocations and/or bone pathology.  He did, however, provide "chiropractic findings," which he summed up as subluxation complexes of all three areas of the spine.  A June 1978 military medical facility record shows that the Veteran complained of neck pain with occasional numbness in the hands.  Following examination, the examiner wrote, "Multiple somatic complaints, probable functional overlay."  

The Veteran re-entered service in 1979.  A review of the service treatment records for this period of service shows no documentation of neck pain, including at the time the Veteran was seen following the March 1982 car accident.  At that time, the examiner noted that the Veteran was "having pain on back."  He noted that there was full range of motion and that x-rays were negative.  While it is unclear as to what part of the back the Veteran was complaining of, the Board finds it is reasonable to conclude it was the low back only, as the examiner requested an x-ray of the lumbar spine only to rule out a fracture.  Additionally, as an aside, there is no documentation in the claims file of the Veteran having sustained a compression fracture anywhere on his spine during service.  

There were no complaints involving the cervical spine during the Veteran's second period of service.  The May 1983 and October 1983 Reports of Medical Examination show clinical evaluations of the head, face, neck, and scalp and spine were normal.  

Following service discharge from the second period of service, the Veteran first claimed service connection for the neck and back in January 1986.  However, a February 1986 VA examination report shows the examiner, following clinical evaluation of the neck, concluded that they were "essentially normal to examination at the present time, no significant impairment of function."  An x-ray of the cervical spine at that time was normal.  

At the time the Veteran underwent a VA examination in August 1990, he was not claiming service connection for a cervical spine disability.  Initially, when the Veteran reported the 1982 accident, he talked about his back being injured.  The examiner wrote, "He goes back and relates the story of his accident several times and each time adds further complaints which include pain in the left side of the neck and trapezius area and he relates this to complaints of pain in both forearms."  The examiner noted, in part:

At first, he describes pain in the median nerve distribution of both upper extremities and later in the interview he insists that the pain he was describing involved the 4th and 5th fingers in the lateral portion of both hands.  When confronted with my notes in which he contradicts himself, he then states that his whole arm and both hands hurt and get numb.

The examiner noted that the Veteran would not cooperate in attempting to demonstrate range of motion of the neck, but noted that curvature of the cervical spine was normal.  He also stated there was no evidence of muscle spasms or tenderness.  The examiner reported there was full range of passive motion of both elbows, wrists, and hand joints.  There was no impairment of muscle strength.  Tendon reflexes in the upper extremities were 2+ and equal.  The examiner did not enter a diagnosis pertaining to the cervical spine.

A March 1998 MRI of the cervical spine shows minimal focal degenerative changes at C5-C6 with small central disc bulge but no impingement on the spinal cord or on the neural foramen at this or any level.  

In a December 2001 VA examination report, the Veteran reported that the 1982 in-service motor vehicle accident had caused a compression fracture to his cervical spine, as well as a bulging disc at C5-C6.  The examiner diagnosed the Veteran with compression fracture and a bulging disc based solely on the Veteran's history.  As noted above, there is no documented evidence of the Veteran having sustained a compression fracture to his cervical spine during service or anywhere else on his spine in service.  

The Board notes that it does not find a basis to consider the presumption of soundness as to the Veteran's second period of service based on the fact that a chiropractor diagnosed subluxation complexes of the cervical spine in April 1978.  The Board does not find that such constitutes evidence of a pre-existing disease or injury.  The chiropractor noted that x-rays of the cervical spine showed no evidence of fracture, dislocations and/or bone pathology.  Additionally, x-rays of cervical spine were normal in February 1986, and the 1998 MRI of the cervical spine, according to the January 2012 VA examiner, was normal.  The evidence is against a finding that the Veteran had a disability involving the cervical spine in 1978.  In other words, such would not establish by clear and unmistakable evidence that a disability existed prior to service.  The only issue the Board is considering is service incurrence.

In a January 2012 VA examination report, the examiner reviewed the claims file and determined it was less likely as not that the cervical spine disability was incurred in or caused by service.  He found that any complaint of neck pain during the Veteran's service were temporary conditions and pointed out that May 1983 and October 1983 Reports of Medical Examination were negative for neck findings.  He also noted that the February 1986 VA examination and x-rays revealed no current disability.  The examiner stated that the Veteran reported he was able to work as a prison guard until 1989, when he developed a cervical spine disability with radiculopathy.  He also noted the Veteran continued to work as a commercial driver for another 10 years.  He stated cervical spine x-rays were normal in 1990 and 1998 and that a 1998 MRI of the cervical spine was normal.  The examiner found that the 2008 myelogram and 2011 MRI of the cervical spine showed significant degenerative spine and disc disease with spinal cord or neuroforaminal encroachment, which he stated was a new finding since 1998.  He added: 

This would indicate the spinal pathology did not occur in the presumptive time period after separation from the military.  These MRI findings are a most reasonable medical explanation for the Veteran's current symptoms of neck pain with radiation into the upper extremities.  Therefore it is the opinion of this medical examiner that the current cervical spine condition is a new and separate condition and is less than likely related to or caused by any inservice event.  A reasonable explanation is spine changes related to the normal aging process, especially since the Veteran has similar changes in the lumbar spine.  Spondylosis is a natural process of aging, is seen in 10% of individuals by the age of 25 years and in 95% by the age of 65 years.

The examiner supported the last sentence with two medical publications.

The Board accords this medical opinion high probative value for multiple reasons.  The examiner clearly reviewed the evidence of record.  He addressed the relevant clinical findings over the years.  He provided an opinion, and then substantiated the opinion with evidence in the file and medical principles.  This is evidence against the claim.

The Veteran has submitted several medical opinions, where the examiner attributed the cervical spine disability to the Veteran's period or periods of service.  In none of these opinions did the examiner provide a rationale for the opinion.  For example, in a March 1991 letter, Dr. J. M. Welch wrote he had treated the Veteran for the last six months with evidence of back pain, arm pain, and leg pain, which were related to ongoing degenerative changes in his back.  He stated these were related to a moving vehicle accident while in the military.  This medical opinion is accorded no probative value.  The examiner did not provide any rationale for his opinion, and it is unclear what evidence the examiner reviewed in providing this opinion.  

In December 2000 and March 2001 letters, Dr. C. C. Battle wrote that the Veteran was having chronic shoulder pain, as well as chronic degenerative arthritis in his neck, back, and legs, which "problems developed while he was in the service between 1974 and 1984 and are still causing him to be 100% disabled at this time."  He added that all of these problems were "definitely service-related."  Like Dr. Welch, Dr. Battle provided no rationale for this conclusion.  In a June 2001 letter, Dr. Battle added that he had reviewed "all of [the Veteran']s VA records from 1974 through 1984 in making the December 2000 opinion.  The Board is aware that the Veteran testified at the February 2009 hearing that Dr. Battle had reviewed his claims file (not just the records from 1974 to 1984) at the time he provided his medical opinion.  However, neither of these facts change the Board's finding that this medical opinion does not warrant substantial probative.  Without the examiner providing a rationale, his medical opinion has no probative value, even if Dr. Battle had reviewed the claims file.  See Nieves-Rodriguez, 22 Vet. App. at 305 (holding that "most of the probative value of a medical opinion comes from its reasoning"). 

Finally, as to the Veteran's allegations of neck pain since the 1974 injury or that his current neck disability is due to service, while the records document multiple complaints of pain, they also document that cervical spine disability was diagnosed many years following service discharge.  The Veteran is competent to report complaints of pain and comment that he experienced the pain after an in-service event; however, given the complexity of the Veteran's cervical spine disability, he is not competent to state that the cause of the pain is a specified chronic disability due to an in-service disease or injury.  More importantly, the more probative objective evidence weighs against the Veteran's assertions.  The service treatment records do not document chronic neck disability.  Examiners were physically examining the Veteran in the years following his service discharge in 1986 and 1990, and found no current disability.  There is post service evidence of intercurrent injuries to the cervical spine, to include an on-the-job injury.  In 2012 following an examination of the Veteran and a review of the claims file, a VA examiner found that the Veteran's cervical spine disability was not related to service.  The Board accords more probative value to the clinical findings and conclusions by medical professionals than the Veteran's own statements.  A medical professional has reviewed the evidence of record and found that the current neck disability is not a result of an injury or injuries during service, whereas the positive opinions submitted by the Veteran are conclusory and fail to discuss the pertinent evidence of record.  A chronic neck disability with its onset in service, continuity of symptoms since service, or being related to service has not been demonstrated.

In summary, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a cervical spine disability, to include degenerative joint disease.  Additionally, there is no competent evidence of arthritis manifested to a compensable degree within one year following service discharge.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See Gilbert, 1 Vet. App. at 53.

3.  Right & left elbow and right and left arm disabilities 

Initially, the Board notes that at the February 2009 Board hearing, the Veteran's representative stated that these disabilities, which he attributed to being neuralgia of the upper extremities, were related to the cervical spine disability.  See transcript on pages 31-32.  There, the representative was clear in stating that both the arm and elbow disabilities were related to the cervical spine disability.  The Veteran reiterated this to the January 2012 examiner.  See examination report.  The Board will limit its discussion to this issue, since both the Veteran and his representative have informed VA of its intent to address these issues as being part of the cervical spine disability.

After having carefully reviewed the evidence of record, the Board finds that the service connection is not warranted for the Veteran's right and left arm and elbow disabilities.  As discussed above, the preponderance of the evidence is against a finding that a cervical spine disability was incurred in service.  Because the upper extremity disabilities are related to the cervical spine disability, service connection on a secondary basis cannot be established.  In other words, without a finding that the cervical spine disability is related to service, the symptoms associated with such disability, including symptoms in the upper extremities as a result of the cervical spine disability, cannot be service-connected as a matter of law.  Thus, the claims must be denied.  See Sabonis, supra.

4.  Temporomandibular joint syndrome

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for temporomandibular joint syndrome.  

Service dental records dated in July 1975 show that the Veteran had an impaction surgically removed.  A post-service Application for Medical Benefits submitted by the Veteran in May 1978 shows that he reported having top and bottom teeth extracted in 1975 while stationed in Korea.  VA medical records dated in January 1978 and June 1978 show that the Veteran was treated for reported pain and locking of his right temporomandibular joint.  The assessment was possible myofascial pain dysfunction.  Service dental records from the Veteran's second period of service dated from December 1979 to April 1983 show significant dental treatment undergone by the Veteran.

With respect to the Veteran's second period of enlistment, the Board does not find any basis to consider the presumption of soundness as to the Veteran's second period of service based on the fact that he was diagnosed with possible myofascial pain dysfunction between his two periods of service.  The Board does not find that such constitutes evidence of a pre-existing disease or injury.  A finding of a possible diagnosis does not constitute clear and unmistakable evidence that a disability existed prior to service.  Thus, the only theory of entitlement the Board is considering is service incurrence.

In the November 2009 Appellant's Brief In Support Of Claim, the Veteran's representative described that while the Veteran was in service in Korea, he had gone to a civilian Korean doctor for a wisdom tooth extraction and experienced complications requiring repeated follow-up treatment during both his periods of active service.  It was also asserted that he has had continued symptoms associated with a temporomandibular joint disorder ever since service discharge.

At this time, it is noted that a theory of entitlement to service connection based on continuity of symptomatology can only be used in cases involving those conditions explicitly recognized as chronic diseases pursuant to 38 C.F.R. § 3.309(a).  Because a temporomandibular joint syndrome is not listed as a chronic disease in § 3.309(a), the Veteran's claim cannot be processed under 38 C.F.R. § 3.309(b).  See Walker v. Shinseki, ___F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. 21, 2013).

In a January 2012 VA examination report, the examiner reviewed the claims file and determined that temporomandibular joint syndrome was not related to a tooth extraction in service.  Before the Board goes into a discussion of this medical opinion, it must address the fact that there is an inconsistency shown in this examination report.  Specifically, under section 11 of the examination report, the examiner wrote "The current medical condition of temporomandibular joint disorder is at least as likely as not (at least a 50 percent or greater) related to Veteran's periods of active service which include the July 1975 surgical removal of impaction."  See report on page 7.  This would seem to indicate a positive nexus between the current disability and service (as evidence in equipoise is positive evidence when reasonable doubt is applied).  However, in reading through the rationale of the opinion, it is clear that the examiner found a negative relationship between the in-service dental procedure and the diagnosis of temporomandibular joint syndrome.  Thus, the Board finds that the medical opinion is negative and weighs against the Veteran's claim.    

In the examiner's rationale, she provided a detailed report of the facts and then explained why she concluded that the current disability is not related to service.  She noted the Veteran was missing multiple teeth with remaining dentition having rampant dental decay.  She described the Veteran's oral hygiene as poor.  The examiner noted that the Veteran had reported difficulty with chewing food, particularly hard-to-chew food.  She stated that review of the claims file did not reveal any adverse reaction to extraction of impaction on July of 1975.  She noted that a January 1978 record showed treatment for a complaint of pain in the right temporomandibular joint, right face, with a diagnosis of possible myofascial pain dysfunction.  She then provided the following opinion in part:

Although the Veteran may have some discomfort or limitation on temporomandibular joint area, this would not affect his ability to maintain gainful employment.  The Veteran has adapted because [he] does not exhibit any problems with speech and the examiner understands the Veteran when he speaks.  Also, the Veteran appears to have enough nutrition so as not to appear emaciated.  The discomfort in his [temporomandibular joint] area is probably not related to his extraction of impaction.  That episode would have healed or else the Veteran would not have been able to function in normal daily activities such as speech and mastication.  The discomfort in [temporomandibular joint] area is likely the result from multiple missing posterior teeth caused by dental caries.  Dental caries if left untreated and compounded by poor oral hygiene can lead to eventual tooth loss.

The Board accords this medical opinion high probative value for multiple reasons.  The examiner reviewed the evidence of record.  She addressed the relevant clinical findings in service and over the years.  She provided an opinion, and then substantiated the opinion with evidence in the file and medical principles.  The examiner explained that she based the determination that the extraction had healed on the fact that the Veteran would not have been able to function in normal daily activities if such had not been the case.  This is evidence against the claim.

The Veteran has not provided any competent evidence to refute this medical opinion.  The Veteran's and his former wife's statements are acknowledged.  The Veteran's former wife provided testimony that she remembers the Veteran having lock jaw.  Nonetheless, the examiner's opinion outweighs their lay assertions.  Moreover, the other objective evidence of record is consistent with the examiner's opinion.  The service treatment records do not demonstrate that the Veteran's temporomandibular joint syndrome had its onset in service and the post service medical evidence of record does not demonstrate that it is related to any event from service.    

In summary, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for temporomandibular joint syndrome.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See Gilbert, 1 Vet. App. at 53.

5.  Pelvic disability

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a pelvic disability.  

The service treatment records do not substantiate a chronic pelvic disability, as alleged by the Veteran.  While the Veteran reported left inguinal pain in November 1974, while doing sit-ups, physical examination revealed the left hip to have full range of motion.  X-rays of the hips were noted to be "ok."  He was seen in June 1975 with complaints of pain in the left hip.  Again, physical examination revealed full range of motion of the left hip.  The diagnosis was sprain to the vastis lateralis (which involves the thigh).  

A June 1978 military medical facility record shows that the Veteran complained of pain in the hips with movement.  The examiner noted the Veteran had full range of motion of all extremities.  He diagnosed, "Multiple somatic complaints, probable functional overlay."  

The Veteran re-entered service.  Complaints of the knees and legs were noted during the Veteran's second period of service.  A chronic pelvic disability was not identified.  

Although the January 2012 VA examiner wrote that the Veteran was seen with complaints of bilateral hip soreness in 1982, the examiner found that the hip pain complaints were temporary conditions and pointed out that the May 1983 and October 1983 Reports of Medical Examinations showed no findings pertaining to the hips/pelvis.  In the May 1983 Report of Medical History, the Veteran reported a current problem with his legs.  A current problem with his hips/pelvis was not noted.

Following service discharge from the second period of service, the Veteran did not claim hip or pelvic pain for many years.  When he filed the 1986 claim for service connection for neck and back disabilities, he did not include a complaint of hip pain.  In the February 1986 examination report, the examiner noted the Veteran had normal reflexes and muscle strength and full range of motion in all joints.  X-rays taken at that time showed a normal pelvis.  Thus, approximately two years following service discharge, no pelvic disability was demonstrated.  When the Veteran was examined by VA in August 1990, he was not claiming pain in the hip(s) or pelvis.  The examiner noted in the August 1990 VA examination report that the Veteran had full passive range of motion of the hips.  A September 1997 x-ray of the lumbosacral spine showed that the sacroiliac joints, sacrum, and coccyx were unremarkable.  Thus, more than 10 years following service discharge, the Veteran did not have a pelvic disability.  

The Veteran's assertions of chronic hip pain in service and continuing in the years after service to lack credibility.  The record shows that the Veteran reported pain for multiple areas of his musculoskeletal system over the years, but he did not report chronic pain in the hips or pelvic area.  When a reference to the hips was made it was made as a result of other diagnoses, e.g., a left inguinal hernia, anterior compartment syndrome, lower back pain, or a sprain of the vastus lateralis with myositis.  

In addition, in a January 2012 VA examination report, the examiner reviewed the claims file and determined it was less likely as not that the pelvic disability was incurred in or caused by service.  He found that the hip complaints in service were temporary conditions and pointed out that May 1983 and October 1983 Reports of Medical Examination were negative for hip findings.  He also noted that the February 1986 VA examination and x-rays revealed no current disability.  The examiner added that the Veteran reported he was able to work as a prison guard until 1989, when he developed cervical spine disease with radiculopathy.  The examiner stated that a 1997 x-ray of the hip was normal and that a 2012 x-ray showed mild osteoarthritis, which was a "new and separate condition."  The examiner concluded the following, in part:

These [2012] x-ray findings are a reasonable medical explanation for the Veteran's current symptoms of hip pain.  This would indicate the hip joint pathology did not occur in the presumptive time period after separation from the military.  Therefore, it is the opinion of this medical examiner that the current hip condition is a new and separate condition and is less than likely related to or caused by an inservice event.  A reasonable explanation is hip changes related to the normal aging process.  "Osteoarthritis ... is the most commonly encountered rheumatic disorder and the major cause of disability and reduced activity after 50 years of age.  Radiographic evidence of osteoarthritis is found in up to 85% of people older than 65.  Autopsies indicate evidence of osteoarthritis in weight-bearing joints of almost all persons by the age of 45 years."

The examiner supported the quoted portion a medical publication.

The Board accords this medical opinion high probative value for multiple reasons.  The examiner reviewed the evidence of record.  He addressed the relevant clinical findings over the years.  He provided an opinion, and then substantiated the opinion with evidence in the file and medical principles.  This is evidence against the claim.

As noted above, the Veteran submitted several medical opinions, where the physician's attributed disability to the Veteran's period or periods of service; however, all of these opinions relate to areas other than the hip and pelvis.  To the extent that one would argue that the discussion of low back and bilateral leg disabilities being related to service encompass the hips and/or pelvis, the examiners in these opinions did not provide a rationale for the opinion.  For example, in a March 1991 letter, Dr. J. M. Welch wrote he had treated the Veteran for the last six months with evidence of back pain, arm pain, and leg pain, which were related to ongoing degenerative changes in his back.  He stated these were related to a moving vehicle accident while in the military.  This medical opinion is accorded no probative value.  The examiner did not provide any rationale for his opinion.  Additionally, to the extent it is implied that the Veteran's hip disability is related to his nonservice-connected back disability, service connection in this regard is prohibited as a matter of law.  38 C.F.R. § 3.310.

In December 2000 and March 2001 letters, Dr. C. C. Battle wrote that the Veteran was having chronic shoulder pain, as well as chronic degenerative arthritis in his neck, back, and legs, which "problems developed while he was in the service between 1974 and 1984 and are still causing him to be 100% disabled at this time."  He added that all of these problems were "definitely service-related."  Like Dr. Welch, Dr. Battle provided no rationale for this conclusion.  In a June 2001 letter, Dr. Battle added that he had reviewed "all of [the Veteran']s VA records from 1974 through 1984 in making the December 2000 opinion.  The Board is aware that the Veteran testified at the February 2009 hearing that Dr. Battle had reviewed his claims file (not just the records from 1974 to 1984) at the time he provided his medical opinion.  However, neither of these facts change the Board's finding that this medical opinion does not warrant any probative.  Without the examiner providing a rationale, his medical opinion has no probative value, even if Dr. Battle had reviewed the claims file.  See Nieves-Rodriguez, 22 Vet. App. at 305 (holding that "most of the probative value of a medical opinion comes from its reasoning"). 

In summary, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a pelvic disability, to include degenerative joint disease.  Additionally, there is no competent evidence of arthritis manifested to a compensable degree within one year following service discharge.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See Gilbert, 1 Vet. App. at 53.


B.  Increased Ratings

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  The RO has staged the ratings for the bilateral anterior compartment fasciotomies during the appeal period.  The Board has reviewed the evidence with consideration of the possibility that different ratings may be warranted for different time periods for all four service-connected disabilities.

Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling, and pain on movement.  38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).  With any form of arthritis, painful motion is a factor to be considered.  38 C.F.R. § 4.59 (2012).

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

At the May 2008 hearing before the Decision Review Officer, the Veteran testified that the pain level in his knees was regularly an 8 on a scale from one to 10 with 10 being the worst.  He described his feet as getting numb, which he stated was at the heel.  He also stated that the calf of his right leg was numb as well.  

At the February 2009 hearing before the Board, the Veteran testified that he had pain in his knees on a daily basis.  He stated he could walk for one block, at which point his knees felt weak and he would fall down at times.  The Veteran testified he could not carry anything of weight because of his knees.  He stated that the trouble he had with walking was impacted by both his knees and feet.  The Veteran testified he was unable to do a job that would require kneeling.  He noted he used braces on his knees for stability.  The Veteran stated that the symptoms he had associated with his knees were similar to the symptoms for the compartment syndrome.  He reported having swelling in his legs, as opposed to having any atrophy.  The Veteran testified his feet hurt on a daily basis, and that he could stand for 15 minutes or so before the pain would set in.  

The Veteran's son testified as to the leg pain the Veteran experienced.  He stated the Veteran was unable to play ball with him because of the pain.  

1.  Bilateral anterior compartment syndrome

For background purposes, the Veteran was diagnosed with anterior compartment syndrome during his second period of service, which by April 1981, was chronic.  He underwent bilateral fasciotomies on April 30, 1981.  He was kept at bed rest for one day and then ambulated on the ward and through physical therapy.  The examiner stated the Veteran did well postoperatively.  

In a June 1984 rating decision, the RO awarded service connection for bilateral anterior compartment, fasciotomies, and assigned a noncompensable evaluation under hyphenated Diagnostic Code 5312-7805, effective March 10, 1984.  The Veteran's disability evaluation remained at a noncompensable evaluation until the RO assigned a 10 percent evaluation in the May 2012 rating decision, effective January 27, 2012, which is the date of VA examination.  The Board will address each evaluation separately, as it is not changing the staged ratings assigned by the RO, nor the effective date assigned.  

Since service connection was granted for this disability back in 1984, the RO has evaluated it under Diagnostic Code 5312, which addresses Muscle Group XII.  The function of Muscle Group XII muscles is dorsiflexion; extension of toes; and stabilization of arch. 38 C.F.R. § 4.73, Diagnostic Code 5312.  These muscles include tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius.  A slight disability warrants a noncompensable evaluation, and a moderate muscle disability warrants a 10 percent evaluation.

In the January 2012 VA examination report, the examiner wrote that Muscle Groups X and XI were impacted, which is actually the first time a medical professional has implicated these Muscle Groups.  This examiner indicated that Muscle Group XII was not impacted.  Diagnostic Code 5310, which addresses Muscle Group X, governs movements of the forefoot and toes and propulsion thrust in walking. The muscles of Muscle Group X are divided into two groups, the plantar and the dorsal muscles.

The muscles of the plantar aspect of the foot consist of (1) flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi; (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor digiti minimi brevis; (9) dorsal and plantar interossei.  Other important plantar structures are the plantar aponeurosis, long plantar and calcaneonavicular ligaments, tendon of posterior tibial, peroneus longus, and long flexors of the great and little toes.  A slight disability warrants a noncompensable evaluation, and a moderate muscle disability warrants a 10 percent evaluation.  

The muscles of the dorsal aspect of the foot consist of (1) extensor hallucis brevis and (2) extensor digitorum brevis.  Other important dorsal structures are the cruciate, cruel, deltoid, and other ligaments; tendons of long extensors of toes and peronei muscles.  A slight disability warrants a noncompensable evaluation, and a moderate muscle disability warrants a 10 percent evaluation.  

Under Diagnostic Code 5311, Muscle Group XI encompasses the posterior and lateral crural muscles and the muscles of the calf, and their functions include propulsion and plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee.  38 C.F.R. § 4.73, Diagnostic Code 5311.  It involves the following muscles in the posterior of the calf: triceps surae, tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris.  A slight disability warrants a noncompensable evaluation, and a moderate muscle disability warrants a 10 percent evaluation.

Thus, of the three Muscle Groups involved, they all provide the same evaluations for slight and moderate disabilities.  

Under 38 C.F.R. § 4.56, governing the evaluation of muscle disabilities, (a) an open comminuted fracture with muscle or tendon will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; (b) a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; (c) for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement; (d) under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows:

A slight disability of a muscle anticipates a simple muscle wound without debridement or infection and with a history of a superficial wound with brief treatment and no cardinal signs or symptoms of muscle disability, such as loss of power, weakness, fatigue-pain, or impairment of coordination and uncertainty of movement.  Objective findings of a slight disability include a minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or retained metallic fragments.  38 C.F.R. § 4.56(d)(1).

A moderate disability of a muscle anticipates a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection.  A history consistent with a moderate disability would include complaints of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use.  Objective findings include some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue.  38 C.F.R. § 4.56 (d)(2).

The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case.  Robertson v. Brown, 5 Vet. App. 70 (1993).

The other applicable Diagnostic Codes address scars, as the Veteran has residual scars from the fasciotomy he underwent during service.  During the course of the Veteran's appeal, VA revised the rating criteria for evaluating scars, effective October 23, 2008.  See 73 Fed. Reg. 54710 (October 23, 2008).  Generally, where the rating assigned is on appeal and the rating criteria have been amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply).  See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000).

Notice of the final rule revising that portion of the schedule that addresses skin disabilities, includes the following as to applicability date:

This amendment shall apply to all applications for benefits received by VA on or after October 23, 2008.  A veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review.  The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates, 38 CFR 3.400, etc.

73 Fed. Reg. 54708 (September 23, 2008).

Here, the Veteran filed his claim in December 2006 and has not specifically requested consideration under the new provisions.  However, the Board also notes that the purpose for adding these provisions was "to ensure that veterans . . . are compensated as fully as possible for their wounds."  See 73 Fed. Reg. 428 (January 3, 2008).  VA has clearly stated that its intent behind applying the revised criteria irrespective of whether the condition has worsened is to ensure veterans receive the best rating possible.  Thus, it would be inconsistent with the stated intent of the 2008 amendments to restrict a veteran to consideration of only the pre-October 23, 2008 version of the schedular criteria.  The Board finds Kuzma to be the controlling law in this case.  In the January 2012 rating decision, the RO specifically considered the revised criteria in awarding the Veteran the 10 percent evaluation.  Therefore, the Board will consider the Veteran's claim under the former and amended criteria in order to ascertain which version would result in the highest rating.

Both under the revised and unrevised criteria, Diagnostic Codes 7801 and 7802 provide for ratings for scars not of the head, face, or neck.  Diagnostic Code 7801 would not apply because under both criteria, it contemplates a scar that his deep and nonlinear.  The scars from the fasciotomies are not deep and nonlinear.  As to Diagnostic Code 7802, which contemplates scars other than on the head, face, or neck, that are superficial and do not cause limited motion are rated 10 percent in area or areas of 144 squares inches (929 square centimeters) or greater.  This criteria did not change as of October 2008; however, the Veteran's scars are too small to be evaluated under this Diagnostic Code.  See January 2012 VA examination report (examiner reported that the scar on the left lower extremity was 7 square centimeters and on the right lower extremity was 10 square centimeters for a total of 17 square centimeters).  

Prior to October 2008, superficial unstable scars were assigned a 10 percent disability rating.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).  Prior to October 2008, superficial scars which were painful on examination were assigned a 10 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  Effective October 23, 2008, Diagnostic Code 7803 was removed from the schedule and the criteria previously found under that code were incorporated into the revised Diagnostic Code 7804.

Effective October 23, 2008, one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; five or more scars that are unstable or painful warrant a 30 percent evaluation.  38 C.F.R. § 4.118 7804 (2012).  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1).  If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Id. at Note (2).  Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable.  Id. at Note (3).

Prior to October 2008, the rater was directed to rate other scars on limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).  Effective October 23, 2008, Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2012). 

a.  Prior to January 27, 2012

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a compensable evaluation prior to January 27, 2012, whether considering the criteria for muscle groups or the criteria for scars.  

The Veteran has not claimed that the fasciotomy surgery was due to a through-and-through injury, and the evidence does not demonstrate such.  Additionally, examiners have specifically noted that the Veteran did not sustain that type of injury.  See September 2006, September 2008, and January 2012 VA examination reports.  Thus, this would be indicative of no more than a slight muscle injury, which warrants no more than a noncompensable evaluation under Diagnostic Codes 5310, 5311, and 5312.  When examined in September 2006, the examiner stated there was no tissue loss; no bone, joint, or nerve damage; and no muscle herniation.  The examiner also stated that the Veteran had good muscle strength.  In the September 2008 VA examination report, the examiner wrote there was no tissue loss, no loss of muscle function, and tenderness along there arterial tibialis muscles.  These clinical findings are in agreement with the objective findings described under 38 C.F.R. § 4.56(d)(1), which describe what would constitute a slight muscle disability.  Id.  

As to consideration of the scar criteria, the evidence prior to January 2012 does not demonstrate that a compensable evaluation is warranted.  For example, in September 2006, the examiner stated that the incisions were well healed and that the scar was not sensitive nor tender.  See examination report.  In September 2008, the examiner noted the in-service surgery but wrote that there was no change in the surgical scars.  Thus, the evidence establishes that there are no symptoms associated with the scars to warrant a compensable evaluation under the various Diagnostic Codes for the scars.

b.  As of January 27, 2012

In the May 2012 rating decision, the RO granted a 10 percent evaluation the amended Diagnostic Code 7804 based on two scars that are unstable or painful, effective the date of the January 2012 VA examination.  The Board has reviewed this examination and cannot find where the examiner found that the scars were tender and painful.  For example, the examiner was asked if the scars were painful, and the examiner checked, "No."  The examiner was asked if the scars were unstable with frequent loss of covering of the skin over the scar, and he checked, "No."  Id.  He was asked if the scars were "BOTH painful and unstable," and he responded, "No."  .  The examiner also stated that the scars did not result in limitation of function.  Based on the foregoing medical evidence, a rating in excess of 10 percent as of January 27, 2012 is not warranted.

As to the former criteria, a higher evaluation is not available, as the only Diagnostic Code addressing scars that offers an evaluation in excess of 10 percent is Diagnostic Code 7801, and the total square centimeters involved is 17, which does not meet the criteria for a compensable evaluation.  As to the amended criteria, a higher evaluation is not available except for Diagnostic Code 7804, and that would require three or four scars, which the Veteran does not have as a result of the fasciotomy surgery (he has two scars only (one on each leg)).  Thus, an evaluation in excess of 10 percent based upon the scars is not warranted.

Considering the disability under the muscle group Diagnostic Codes, again, the fasciotomy surgery was not due to a through-and-through injury.  Thus, this would be indicative of no more than a slight muscle injury, which warrants a noncompensable evaluation under Diagnostic Codes 5310, 5311, and 5312.  In the January 2012 examination report, the examiner provided clinical findings that establish very little symptoms.  For example, he stated that there were no fascial defects or evidence of fascial defects associated with muscle injury, no muscle injury affecting the substance or function of the muscle, no loss of power, no weakness, no lowered threshold of fatigue, no fatigue-pain, no impairment of coordination, no uncertainty of movement, and no muscle atrophy.  He stated the Veteran had 5/5 strength in the lower extremities and that the Veteran's gait was normal.  The only abnormal finding the examiner reported was that there was decreased light touch/pain in the upper leg adjacent to and secondary to fasciotomy scars.  This finding appears to be the basis of the RO's award of the 10 percent evaluation, although this pain was not on the scar.  These clinical findings are in agreement with the objective findings described under 38 C.F.R. § 4.56(d)(1), which describe what would constitute a slight muscle disability.  Id.  Thus, a compensable evaluation based upon residuals of the muscle injury is not warranted for either extremity as of January 2012.



2.  Chondromalacia of the knees

The Veteran's service-connected chondromalacias of the knees have both been evaluated as 10 percent disabling since 1997.  He claims that his knees are worse than the 10 percent evaluations contemplate.

The RO has rated the right and left knees by analogy to osteomyelitis, which is rated under degenerative arthritis.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5014.  Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2012).

The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II (2012).
 
Flexion of the leg limited to 60 degrees warrants a 0 percent rating.  Flexion limited to 45 degrees warrants a 10 percent rating.  Flexion limited to 30 degrees warrants a 20 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). 
 
Extension of the leg limited to 5 degrees warrants a noncompensable rating, and extension limited to 10 degrees warrants a 10 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012).  

Separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria.  The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable.  VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). 

Limitation of motion and instability of the knee are two, separate disabilities, and a veteran may be rated separately for these symptoms.  See VAOPGCPREC 23-97 (July 1, 1997) (when a claimant has arthritis and is rated under instability of the knee, those two disabilities may be rated separately under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010 and Diagnostic Code 5257).

In addition, a separate 10 percent rating may be awarded for the symptomatic removal of semilunar cartilage under Diagnostic code 5259.  Or, a separate 20 percent rating may be awarded for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion, to the extent that there is separate compensable symptomatology.  VAOPGCPREC 09-98 (August 14, 1998), 63 Fed. Reg. 56704 (1998).

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to evaluations in excess of 10 percent for chondromalacia of the right and left knees.  The Board will address both knees together in its analysis since the symptoms described by medical professionals and the Veteran are almost identical.  

Throughout the appeal, the Veteran's extension has been full, and his limitation of flexion has not been compensable.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261.  For example, the September 2006 and September 2008 VA examination reports show the Veteran had a range of motion in both knees of 0 to 120 degrees.  The January 2012 VA examination report shows that the Veteran had a range of motion in the right knee of 0 to 110 degrees and in the left knee of 0 to 100 degrees.  Thus, neither knee warrants a compensable evaluation under Diagnostic Codes 5260 and 5261 in light of the ranges of motion objectively demonstrated.  As a result, neither knee warrants separate evaluations for limitation of extension and limitation of flexion.  See VAOPGCPREC 09-04.  Because the motions in each knee do not meet the criteria for a 10 percent evaluation under either Diagnostic Code, evaluations in excess of 10 percent for each knee are not warranted.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.  

A separate evaluation under Diagnostic Code 5257 is also not warranted for either knee.  At each of the examinations in September 2006, September 2008, and January 2012, the examiners made specific findings that the Veteran had no instability.  For example, in the September 2006 VA examination report, the examiner wrote that the medical and lateral collateral ligaments and the anterior and posterior cruciate ligaments were stable in both knees.  In the September 2008 VA examination report, the examiner wrote that there was no instability to varus or valgus stress and that Lachman's was negative.  The January 2012 VA examiner wrote that examination did not reveal anterior instability, posterior instability, or medial lateral instability.  The January 2012 examiner also noted that there was no history of recent or past subluxation or dislocation.  Thus, there is no basis for a finding of a separate evaluation for instability or subluxation of either knee.  See VAOPGCPREC 23-97.

The Board has considered the holding in DeLuca and finds that the assigned 10 percent evaluations fully compensate the Veteran's pain with a noncompensable loss of flexion and no loss of extension.  In the September 2006 examination report, the examiner noted the knees were not additionally limited by pain, fatigue, weakness, lack of endurance, following repetitive movement.  In the September 2008 examination report, the examiner noted that while there was increased pain following repetitive use, there was no further loss of motion.  Finally, in the January 2012 examination report, the examiner noted that following repetitive movement, the Veteran's ranges of motion of 0 to 110 degrees in the right knee and 0 to 100 degrees in the left knee did not change.  That examiner also noted the Veteran had 5/5 strength for both flexion and extension.  Such findings do not establish a basis to award the Veteran evaluations in excess of 10 percent for either knee.

The Board finds that Diagnostic Codes 5258 and 5259 are not applicable, as there is no evidence that the Veteran's service-connected disabilities have involved the semilunar cartilage.  

The Board is aware that the Veteran has complained of extreme pain in his knees and falling down and has alleged he has instability in both knees.  The Board has accorded more probative value to the clinical findings by medical professionals, who have reported the Veteran does not have instability and have provided clinical findings that would not be indicative of any more than slight knee disabilities, than the Veteran's own statements.  The medical professionals have not provided clinical findings that would support the more severe symptoms described by the Veteran, such as falling down and weakness.  In the January 2012 VA examination report, the examiner found the Veteran had no weakness, fatigability, or lack of endurance, and specifically found the Veteran had 5/5 strength in both flexion and extension of both knees.  Such evidence weighs against a finding that the Veteran's right and left knee disabilities are any more than 10 percent disabling.

3.  Bilateral pes planus

Bilateral pes planus is currently rated as 10 percent disabling, which has been in effect since August 1997.

Under Diagnostic Code 5276, a 10 percent rating is assigned when pes planus (flatfoot) is moderate, whether unilateral or bilateral, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet.  Where pes planus is bilateral and severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 30 percent rating is to be assigned.  Where pes planus is bilateral and pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, a (maximum) 50 percent rating is warranted.  38 C.F.R. § 4.71a, Code 5276.

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for bilateral pes planus.  The Veteran's disability picture is well-encapsulated by the criteria for a 10 percent rating for pes planus.  Specifically, the evidence does not show that he has a marked deformity.  In the June 2006 examination report, the examiner noted that the feet were mildly flat, the Achilles tendon was in good alignment, and that the forefoot and mid foot were in good alignment.  In the September 2008 examination report, the examiner described the Veteran's pes planus was moderate with mild forefoot pronation and normal alignment of the Achilles tendon.  In the January 2012 examination report, the examiner made a specific finding that there was no evidence of marked pronation of the foot.  

Additionally, the evidence does not show pain on manipulation and use accentuated or characteristic callosities.  For example, in the June 2006 examination report, the examiner wrote there was no callosities and that examination of the feet was not painful.  In September 2008, the examiner stated there was mild hindfoot pain but that the Achilles tendons were not painful with manipulation.  The examiner also stated there was no evidence of callosities or abnormal wear.  In the January 2012 examination report, the examiner stated there was no pain on manipulation of the feet and no characteristic calluses.  He also noted there was no extreme tenderness of the plantar surface.  While the September 2008 VA examiner noted swelling in the feet, there was no swelling in the feet in June 2006 or January 2012.  Thus, of the 30 percent evaluation criteria, the Veteran showed such symptom one time over a six-year period.  Thus, the Board finds the preponderance of the evidence is against a finding that the Veteran has swelling on use to warrant the 30 percent evaluation.  

The examiners have noted that the Veteran's symptoms are relieved by arch supports.  The January 2012 examiner made specific clinical findings that the Veteran did not meet the criteria for a 50 percent evaluation.  Regardless, without the symptoms that warrant a 30 percent evaluation, a 50 percent evaluation would not be warranted.  The Veteran's disability picture more nearly approximates the criteria for a 10 percent rating and no higher.

5.  Extraschedular consideration

The above determinations are based on application of pertinent provisions of VA's rating schedule.  For each of the Veteran's increased rating claims, the schedular criteria are adequate to rate the service-connected disabilities.  Consideration is laid out above in the discussions as to why higher ratings are not warranted.  The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  Thun v. Peake, 22 Vet. App. 111 (2008).

At no point during this appeal period have any of the Veteran's service-connected disabilities of the legs, knees, and feet been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  38 C.F.R. § 3.321(b)(1) (2012).  As an aside, the Board adds that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating for these issues.  Shipwash v. Brown, 8 Vet. App. 218 (1995).  The Board is aware the Veteran has been awarded a total rating for compensation based upon individual unemployability based upon all of his service-connected disabilities, but each of the individual disabilities discussed in this decision do not caused marked interference with employment in and of themselves.  For example, in the January 2012 VA examination report, the examiner made specific findings on the impact each of these disabilities had on the Veteran's work.  As to pes planus, the examiner found that it did not impact the Veteran's ability to work.  See page 193.  As to the bilateral knee disabilities, the examiner found that they also did not impact the Veteran's ability to work.  See page 160.  As to the compartment syndrome, the examiner found the Veteran would be able to do a sedentary job.  See page 215.  There is no evidence during the appeal of the Veteran being hospitalized for any of these disabilities.  The assigned ratings are adequate and referral for extraschedular consideration is not warranted.


ORDER

Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease, is denied.

Entitlement to service connection for a cervical spine disability is denied.

Entitlement to service connection for right arm disability is denied.

Entitlement to service connection for left arm disability is denied.

Entitlement to service connection for right elbow disability is denied.

Entitlement to service connection for left elbow disability is denied.

Entitlement to service connection for temporomandibular joint syndrome is denied.

Entitlement to service connection for pelvic disability, to include degenerative joint disease, is denied.

Entitlement to a compensable evaluation for bilateral anterior compartment syndrome prior to January 27, 2012, and in excess of 10 percent as of January 27, 2012, is denied.

Entitlement to an evaluation in excess of 10 percent for chondromalacia of the right knee is denied.

Entitlement to an evaluation in excess of 10 percent for chondromalacia of the left knee is denied.

Entitlement to an evaluation in excess of 10 percent for bilateral pes planus is denied.


REMAND

The Board regrets that another remand is necessary before the Board can decide the issues of entitlement to service connection for headaches and hypertension, both on a direct basis and as secondary to a service-connected disability or disabilities.  The RO provided the Veteran with a VA examination in January 2012.  There, the examiner addressed the issue of whether headaches and hypertension were incurred in service and whether hypertension was manifested to a compensable degree within one year following service discharge.  However, the examiner did not address the question of whether either disability was due to or the result of a service-connected disability.  Service connection is in effect for an anxiety disorder with mood disorder, rated at 70 percent; chondromalacia of the left knee, rated at 10 percent; chondromalacia of the right knee rated at 10 percent; bilateral pes planus, rated at 10 percent; bilateral anterior compartment fasciotomies, rated at 10 percent, and a right ankle sprain, rated at zero percent.  Thus, it is for this purpose only that the Board is remanding these claims.

The Board does not find that another examination is warranted and will request that the claims file be sent to the examiner who provided the January 2012 VA examination in connection with these claims to have him address the aggravation issue.

The RO has properly uploaded the VA treatment records up until April 2012 to Virtual VA.  It should add any treatment records after that date to the file.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any VA treatment records from April 2012 to the present time.

2.  Refer the claims file to the examiner, who performed the January 2012 VA examination, Dr. W. J. T., and ask him to review the file again, including the additional evidence received.  

If the examiner finds that he needs to physically examine the Veteran to answer the questions, an examination should be scheduled.

The examiner is informed of the following facts:

* You reviewed the Veteran's claims file in January 2012 and were asked to provide medical opinions as to whether it was at least as likely as not that hypertension and/or headaches were incurred in service.  In the January 2012 examination report, you responded to these questions and provided a rationale for your opinions.

* However, additional inquiry is required.  Please comment on whether it is at least as likely as not that either or both of these disabilities was either due to a service-connected disability/disabilities or aggravated by a service-connected disability/disabilities.

* For your reference, Volumes 7 and 8 will be of particular interest. 

* As noted, the Veteran is service connected for the following disabilities:
(1) Anxiety disorder with mood disorder
(2) Chondromalacia of the right knee
(3) Chondromalacia of the left knee
(4) Bilateral pes planus 
(5) Bilateral anterior compartment fasciotomies
(6) Right ankle sprain

After a review of the claims file and your January 2012 VA examination report, the Board asks that you answer the following questions: 

   (i)  Is it at least as likely as not (i.e., is there a 50/50 probability or higher) that the Veteran's headaches are due to or caused by any of the service-connected disabilities (whether alone or in combination)?  Please state upon what facts in the claims file and medical principles you base the opinion.  

	(ii)  If the answer to (i) is negative, is it at least as likely as not (i.e., is there a 50/50 probability or higher) that headaches are aggravated (worsened) by any of the service-connected disabilities (whether alone or in combination)?  Please state upon what facts in the claims file and medical principles you base the opinion.  

   (iii)  Is it at least as likely as not (i.e., is there a 50/50 probability or higher) that the Veteran's hypertension is due to or caused by any of the service-connected disabilities (whether alone or in combination)?  Please state upon what facts in the claims file and medical principles you base the opinion.  

	(iv)  If the answer to (iii) is negative, is it at least as likely as not (i.e., is there a 50/50 probability or higher) that hypertension is aggravated (worsened) by any of the service-connected disabilities (whether alone or in combination)?  Please state upon what facts in the claims file and medical principles you base the opinion.  

3.  If the original examiner is not available, then forward the claims folder to another physician for responses to the above questions.   If the examiner finds that he needs to physically examine the Veteran to answer the questions, an examination should be scheduled.

4.  Thereafter, ensure that the development above has been completed in accordance with the remand instructions; undertake any other development action that is deemed warranted, and re-adjudicate the issues of entitlement to service connection for headaches and hypertension on both a direct and secondary basis.  If any of the benefits sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters 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 remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs