Citation Nr: 1310091	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  07-17 392	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder and, if so, whether service connection is warranted.

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for folliculitis.

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for a prostate disability.

5.  Entitlement to service connection for erectile dysfunction including as secondary to right testicular pain with epididymitis.

6.  Entitlement to a compensable rating for bilateral pes planus.

7.  Entitlement to a compensable rating for right testicular pain with epididymitis.

8.  Entitlement to an increased rating for a left knee disorder, currently evaluated as 10 percent disabling.

9.  Entitlement to an increased rating for a mid-back disorder, rated as 10 percent disabling prior to November 19, 2009, and 20 percent disabling from November 19, 2009.

10.  Entitlement to an initial rating in excess of 10 percent for dermatitis with tinea versicolor and tinea cruris (skin disorder) from April 6, 2010.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from February 1989 to August 1998.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2006, September 2008, and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In a December 2009 rating decision, the RO increased the Veteran's mid-back disorder to a 20 percent rating effective from November 19, 2009. 

In this regard, one of the issues listed as being on appeal is a claim for an earlier effective date for the grant of the 20 percent rating for the Veteran's mid-back disorder.  However, a review of the record on appeal reveals that the Veteran is essentially claiming that the 20 percent rating should date back to his June 2006 claim for an increased rating.  The Board finds that this earlier effective date claim is part of the Veteran's ongoing claim for an increased rating for his mid-back disorder.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Therefore, the Board has characterized the rating claim as it appears above so as to incorporate the earlier effective date claim.  

While the RO characterized one of the issues on appeal as a claim of service connection for prostatitis, the Board has recharacterized it as a claim of service connection for a prostate disability so as to best reflect the evidence found in the claims file and the Veteran's intent while filing the claim. 

In October 2010, the Veteran withdrew his September 2010 requests for a hearing before a Veterans' Law Judge traveling to the RO and his February 2010 request for a video hearing. 

The application to reopen the claim of service connection for folliculitis, the reopened claim of service connection for a right knee disorder, and the claims of service connection for erectile dysfunction and a prostate disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  An August 2005 rating decision denied the Veteran's claim of service connection for a right knee disorder; the Veteran did not appeal that decision or submit new and material evidence within the one year appeal period.

2.  Evidence received since the time of the final August 2005 rating decision is new, related to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right knee disorder.

3.  The most competent and credible evidence of record shows that the Veteran has PTSD as a result of his service in the Persian Gulf during the first Persian Gulf War.

4.  The most competent and credible evidence of record is against finding that the Veteran's pes planus is manifested by objective evidence of weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet, even taking into account his complaints of pain, at any time during the pendency of the appeal.

5.  The most competent and credible evidence of record is against finding that the Veteran's right testicular pain with epididymitis is manifested by urinary tract infections requiring long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management at any time during the pendency of the appeal.

6.  The most competent and credible evidence of record is against finding that the Veteran's left knee disorder is manifested by flexion of the knee limited to 30 degrees or extension of the knee limited to 15 degrees even taking into account his complaints of pain; slight recurrent subluxation or lateral instability; ankylosis; a dislocated semilunar cartilage; impairment of the tibia and fibula; or genu recurvatum at any time during the pendency of the appeal.

7.  Prior to November 19, 2009, the most competent and credible evidence of record showed that the Veteran's mid-back disorder was manifested by forward flexion of the thoracolumbar spine being less than 60 degrees taking into account his complaints of pain.

8.  The most competent and credible evidence does not show that the Veteran's mid-back disorder is manifested by forward flexion of the thoracolumbar spine being to 30 degrees or less even taking into account his complaints of pain, at least 4 weeks of incapacitating episodes in any 12-month period, or objective evidence of compensable adverse neurological symptomatology at any time during the pendency of the appeal.

9.  From April 6, 2010, the most competent and credible evidence of record does not show that the Veteran's skin disorder covers 20 to 40 percent of the entire body, 20 to 40 percent of exposed areas affected, or requires systemic therapy for a total duration of six weeks or more during the any 12-month period at any time during the pendency of the appeal.


CONCLUSIONS OF LAW

1.  The August 2005 rating decision, which denied entitlement to service connection for a right knee disorder, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005).

2.  Evidence submitted to reopen the claim of entitlement to service connection for a right knee disorder is new and material, and therefore, the claim is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  PTSD was incurred in military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

4.  The criteria for a compensable rating for bilateral pes planus have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012).

5.  The criteria for a compensable rating for right testicular pain with epididymitis have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.115a, 4.115b, Diagnostic Code 7525 (2012).

6.  The criteria for a rating in excess of 10 percent for a left knee disorder have not been met at any time during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5020, 5257 to 5261 (2012).

7.  Prior to November 19, 2009, the criteria for a 20 percent rating for a mid-back disorder were met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012).

8.  The criteria for a rating in excess of 20 percent for a mid-back disorder have not been met at any during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012).

9.  The criteria for an initial rating in excess of 10 percent for a skin disorder have not been met at any time from April 6, 2010.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.27, 4.118, Diagnostic Codes 7806, 7813 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under 38 U.S.C.A. § 5102 VA, first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The Veteran must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants.  Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented.  Specifically, VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim.

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

As to the application to reopen the claim of service connection for a right knee disorder, given the fully favorable decision with respect to the issue of whether new and material evidence has been submitted to reopen the claim, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary since any deficiency in the timing or content of such notice would constitute harmless error.  

As to the claim of service connection for PTSD, given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice provided to the Veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error.  To whatever extent the decision of the Court in Dingess requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as a disability rating and effective date, the Board finds that the RO will address any applicable downstream issues when effectuating the award and therefore any failure to provide this notice at this junction cannot prejudice the claimant because he will be free to appeal any unfavorable finding by the RO regarding the disability rating and effective date.

As to the claims for increased ratings, the Board finds that letters dated in July 2006, December 2006, October 2007, May 2008, July 2008, March 2009, and May 2010 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the initial adjudication of the claims, the Board finds that providing him with this notice in the above letters followed by a readjudication of the claims in the May 2012 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006).  

As to the claim for a higher initial rating for a skin disorder, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, the Court also held that in cases where service connection has been granted and initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, regardless of whether the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify as to this issue has been satisfied.  

As to all the issues on appeal, even if VA had a duty to provide additional notice and failed to do so, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above VCAA letters as well as the rating decisions, statements of the case, and supplemental statements of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

VA has also secured all available pertinent evidence and conducted all appropriate development.  Specifically, the record shows that VA obtained and associated with the claims file all identified and available in-service and post-service records including his service treatment records and his records from the Central Texas Health Care System including from the Temple and Dallas VA Medical Centers (VAMCs).

As to the rating claims, the Veteran was provided VA examinations in August 2006, November 2007, August 2008, January 2009, November 2009, June 2010, and/or September 2011.  Moreover, the Board finds that the examinations are adequate because after comprehensive examinations of the claimant and after a review of the record on appeal and/or after taking a detailed history from the claimant, the examiners provided opinions as to the severity of his service connected disabilities that allows the Board to rate them under all relevant diagnostic codes.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one).

In summary, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's record including those found in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim to Reopen

The Veteran and his representative contend that the claimant's current right knee disorder is due to his military service.  In the alternative, it is claimed that his right knee disorder was caused or aggravated by his service-connected left knee disorder and/or mid-back disorder.  It is also requested that the Veteran be afforded the benefit of the doubt. 

As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed.  38 U.S.C.A. § 5108 (Wet 2002).  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed.  Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam).  The Board is required to give consideration to all of the evidence received since the first denial of the claims in light of the totality of the record.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  

The RO first denied service connection for a right knee disorder in an August 2005 rating decision.  The Veteran was notified of the decision by a letter dated later that month. He did not appeal the August 2005 rating decision.  

In the first year following notice of the August 2005 rating decision, the RO obtained and associated with the claims file additional VA treatment records dated from April 2005 to October 2005 that noted the Veteran's continued complaints of right knee pain as well as noted that x-rays of the right knee were normal.

In this regard, the Board notes that medical records documenting the Veteran's post-service complaints and treatment for right knee pain without a diagnosis of an underlying disease process were part of the record at the time the August 2005 rating decision denied the claim.  Accordingly, the Board finds that this evidence is not new and material as it is cumulative of evidence previously considered.  38 C.F.R. § 3.156(a).

Therefore, the Board finds that the record does not show that the Veteran, following the August 2005 rating decision, submitted medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period.  38 C.F.R. § 3.156(b).  Accordingly, the Board finds that the rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005).  

As to reopening the prior final decision, the August 2005 rating decision denied the claim of service connection for a right knee disorder because, among other reasons, the record did not show a diagnosis of an underlying disease process causing the Veteran's right knee pain.  VA treatment records added to the record since August 2005 show the Veteran being diagnosed with right knee degenerative joint disease.  This is seen in VA treatment records dated in August 2006, December 2008, October 2008, and January 2009.

Establishing service connection requires, among other things, medical evidence of a current disability.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012); Hickson v. West, 12 Vet. App. 247, 253 (1999).  Therefore, the Board finds the treatment records are both new and material evidence as defined by regulation.  See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  

The claim of entitlement to service connection for a right knee disorder is therefore reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  To this extent, the appeal is granted.  The underlying service connection claim is further addressed in the remand section.

The Service Connection Claim

The Veteran claims that his PTSD was caused by, among other things, seeing dead and mutilated bodies while serving in the Persian Gulf during the first Persian Gulf War.  He also reported, in substance, that he was in fear of his life at this time because on at least one occasion while on an operation he heard gun fire and was told to prepare for the enemy.  It is also requested that the Veteran be afforded the benefit of the doubt. 

In general, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the evidence relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  

In summary, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson, 12 Vet. App. at 253.  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As to claims of service connection for PTSD, controlling regulations provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  The provisions of 38 C.F.R. § 4.125(a) (2012) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV).  

The Board notes that during the pendency of this appeal, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  More specifically, the revisions liberalized the standards for establishing the occurrence of in-stressors involving a "fear of hostile military or terrorist activity."  See 38 C.F.R. § 3.304(f)(3).  Accordingly, the provisions apply to this case.

As to medical evidence diagnosing PTSD, when examined by VA in February 2010 the examiner opined that the clamant did not meet the DSM IV criteria for a diagnosis of PTSD because his loss of interest in social activities and social detachment "appear more in the context of depressive symptomatology rather than PTSD" and his nightmares are not directly related to combat.

On the other hand, VA treatment records document the Veteran being diagnosed with PTSD since 2005.  A diagnosis was provided in VA treatment records dated in December 2005, January 2006, March 2006, November 2009, February 2010, August 2010, October 2010, February 2011, and May 2011.  Moreover, in November 2009 the healthcare professional specifically opined that the Veteran's PTSD met the DSM IV criteria for PTSD based, in substance, on the same stressors and adverse symptomatology reported to the February 2010 VA examiner.

The Board finds that the equivocal language used by the February 2010 VA examiner (i.e., "appear more in the context of") places in doubt the credibility of the opinion.  See Tirpak v. Derwinski, 2 Vet. App. 609 (1992).  Moreover, the Board finds more competent and credible the opinion by the VA healthcare provider that has seen the Veteran for years for his adverse psychiatric symptomatology and who opined that he met the DSM IV criteria for PTSD than the opinion from the examiner who saw the claimant on one isolated occasion in February 2010.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).  

Therefore, the Board finds that the evidence as to whether the Veteran has a diagnosis of PTSD in accordance with the DSM IV, both positive and negative, is at least in equipoise.  Under such circumstances, and granting the Veteran the benefit of reasonable doubt in this matter, the Board concludes that the record contains a competent and credible diagnosis of PTSD in accordance with the DSM IV.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Accordingly, the Board finds that the Veteran has met the first element for establishing service connection for PTSD.  See 38 C.F.R. § 3.304(f). 

As to medical evidence establishing a link between current symptoms and an in-service stressor, the December 2005 and November 2009 VA treatment records which diagnosed the Veteran with PTSD did so based on his reports of seeing dead and mutilated bodies while serving in the Persian Gulf during the first Persian Gulf War and being in fear of his life during this time.  Therefore, the Board finds that the second element for establishing service connection for PTSD has been met.  See 38 C.F.R. § 3.304(f).

As to credible supporting evidence that the claimed in-service stressor occurred, as reported above, the Veteran claims that his PTSD was caused by seeing dead and mutilated bodies while serving in the Persian Gulf during the first Persian Gulf War and being in fear of his life during this time.  Tellingly, his DD 214 confirms that as a chemical operations specialist he served in the Persian Gulf from January 1990 to April 1991 during the first Persian Gulf War.  Moreover, as noted by the February 2010 VA examiner, the RO has confirmed that during this service his unite traveled on Highway 8 (a/k/a the Highway of Death).  Accordingly, because the Veteran's in-service stressors involved "fear of hostile military or terrorist activity," the Board also finds that the record contains credible supporting evidence that the claimed in-service stressor occurred.  Therefore, the Board finds that the third element for establishing service connection for PTSD has been met.  See 38 C.F.R. § 3.304(f).

Given the above diagnosis of PTSD along with the opinion that the PTSD was caused by the Veteran's fear of his life while serving in the Persian Gulf during the first Persian Gulf War and the DD 214 which confirms this service, the Board finds that the evidence, both positive and negative, is at least in equipoise.  Under such circumstances, and granting the Veteran the benefit of reasonable doubt in this matter, the Board concludes that service connection for PTSD is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.304(f).


The Rating Claims

The Veteran asserts that his service connected disabilities warrant higher evaluations at all times during the pendency of the appeal.  It is also requested that the Veteran be afforded the benefit of the doubt. 

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2012).  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart, 21 Vet. App. at 505.  Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain).  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id. at 206.

Under 38 C.F.R. § 4.40 (2012), disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

Additionally, 38 C.F.R. § 4.45 (2012) provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations:  (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).  (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).  (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).  (d) Excess fatigability.  (e) Incoordination, impaired ability to execute skilled movements smoothly.  (f) Pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  For the purpose of rating disability from arthritis, the spine is considered a major joint.

Likewise, 38 C.F.R. § 4.59 (2012) provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  In this regard, the Court in Burton v. Shinseki, 25 Vet. App. 1 (2011), held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  

Bilateral Pes Planus

The October 2006 rating decision confirmed and continued a noncompensable rating for bilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, a 10 percent rating is warranted if the disability is manifested by moderate pes planus evidenced by the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet (bilateral or unilateral).  A 30 percent rating is warranted if the disability is manifested by severe pes planus evidenced by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities.  

With the above criteria in mind, the Board notes that at the August 2006 VA examination, the Veteran complained of bilateral foot pain with weakness and stiffness as well as occasional swelling and lack of endurance but no flare-ups.  The Veteran did not use a shoe insert.  On examination, the calcaneal pitch was at 15.7 degrees which was below the lower limits of normal.  However, the feet were symmetrical and normal in appearance.  There was no pain with motion, additional lost motion after repetitive use, no objective evidence of pain or weakness, the gait was normal without functional limitations, and there was no unusual shoe wear.  It was also noted that the Achilles tendon was midline and correction was not needed.  There was no valgus, malalignment, or hallux valgus.  The diagnosis was pes planus.  

At the November 2007 VA examination, the Veteran complained of bilateral foot pain, weakness, stiffness, swelling, heat, and lack endurance not corrected by orthotics.  The Veteran did not complain of flare-ups.  On examination, there was palpable tenderness in the lateral plantar area of both feet and the calcaneal pitch was 15.7 degrees which was below the lower limits of normal.  However, the feet were symmetrical and normal in appearance.  There was no additional lost motion.  His gait was normal.  There were no skin changes or calluses.  The alignments of the Achilles tendons were normal with and without weight bearing.  There was no valgus, malalignment, or hallux valgus.  There was normal flexion and extension of the great toe.  The diagnosis was pes planus with plantar fasciitis.

At the November 2009 VA examination, the Veteran complained of bilateral foot pain.  The Veteran thereafter denied using orthotics.  The Veteran denied having problems with flare-ups, weakness, swelling, or fatigability.  On examination, he had a normal gait, his feet were symmetrical, the Achilles tendons were aligned and not tender to manipulation, there was no evidence of abnormal weight bearing, there was no instability, there were no calluses, and no painful forefoot, hindfoot, or midfoot.  Additionally, he could dorsiflex and plantar flex his toes from zero to 20 degrees without pain as well as without additional lost range of motion, coordination, fatigue, weakness, endurance, or increased pain with three repetitions.  The diagnosis was bilateral pes planus.

Thereafter, at the September 2011 VA general examination, the Veteran complained of daily bilateral foot pain mostly with standing 30 minutes or walking three to four blocks.  He also reported that while he used an insert, it did not help.  He also denied having flare-ups.  On examination, Achilles tendon alignment was normal, there was no pain on manipulation, there were no calluses, active range of motion did not produce fatigue, weakness, or incoordination, there was no additional lost range of motion after three repetitions, there was normal weight bearing, and there was normal standing and walking.  The diagnosis was bilateral pes planus.

Lastly, the Board notes that while treatment records document the Veteran's periodic complaints and treatment for bilateral pes planus, these treatment records do not show his adverse symptomatology to be worse than what was reported at the above three VA examinations.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  

In summary, the objectively confirmed adverse symptomatology due to the Veteran's bilateral pes planus is limited to the calcaneal pitch being below the lower limits of normal and the foot tenderness found at the November 2007 VA examination.  

As to the foot tenderness, the record shows that there was no pain on manipulation and use of the feet at the earlier August 2006 VA examination or at the later November 2009 and September 2011 VA examinations.  Likewise, while treatment records periodically document the Veteran's complaints and treatment for bilateral foot pain, they are also negative for objective evidence of pain on manipulation and use of the feet.  Therefore, the Board finds that the most competent and credible evidence of record is the medical evidence that shows that the Veteran's bilateral pes planus is not manifested by pain on manipulation and use of the feet.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion.").  

The Board also finds that the record on appeal is negative for objective evidence of the Veteran's bilateral pes planus causing weight-bearing line over or medial to the great toe and/or inward bowing of the tendo achillis.

Therefore, the Board finds that, even taking into account the Veteran's objective complaints of pain as per 38 C.F.R. §§ 4.40, 4.45 and DeLuca, that the most competent and credible evidence of record does not show that he has at least "moderate" pes planus.  Accordingly, his claim for a compensable rating under Diagnostic Code 5276 must be denied.  38 C.F.R. § 4.71a.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.  Hart, 21 Vet. App at 505.

Right Testicular Pain with Epididymitis.

The October 2006 rating decision confirmed and continued a noncompensable rating for right testicular pain with epididymitis under 38 C.F.R. § 4.115b, Diagnostic Code 7525 (2012).  

Under 38 C.F.R. § 4.115b, Diagnostic Code 7525, chronic epididymo-orchitis is rated as a urinary tract infection.

In this regard, 38 C.F.R. § 4.115a (2012) provides that urinary tract infection requiring long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management warrants a 10 percent rating.  Urinary tract infection, where the evidence shows recurrent symptomatic infection requiring drainage and frequent hospitalization (greater than two times per year) and/or requiring continuous intensive management, warrants a 30 percent rating.  

With the above criteria in mind, the Board notes that at the August 2006 VA examination, the Veteran complained of right testicle pain.  The Veteran denied having recurrent urinary tract infections, incontinence, hospitalizations, catheterizations, dilations, drainage, or diet.  However, he complained of frequency 8 times a day without nocturia or decreased stream by hesitancy.  Examination was normal as to the left testicle except for ultrasound evidence of post-surgical changes.  The diagnosis was chronic prostatitis.  

At the November 2007 VA examination, the Veteran complained of right testicle pain.  The Veteran denied having incontinence, recurrent urinary tract infections, hospitalizations, catheterizations, dilations, drainage, or diet.  However, he complained of frequency 14 times a day and nocturia 3 to 4 times a night.  Examination was normal except for ultrasound evidence of post-surgical changes.  The diagnosis was chronic right testalgia.  

Thereafter, at the August 2008 VA examination, the Veteran complained of right testicle pain.  The Veteran denied having incontinence or hospitalizations for urinary tract disease.  Examination was normal except for ultrasound evidence of post-surgical changes.  A computerized tomography (CT) was normal.  

At the November 2009 VA examination, the Veteran complained of flare-ups, once a week, of dull right testicle discomfort that might last all day with no pattern and with no swelling, discomfort in other areas, abdominal pain, dysuria, incontinence, or change in stream.  Examination was normal on the right.  The diagnosis was chronic right-sided orchialgia.  

Subsequently, at the September 2011 VA general examination, Veteran complained of right testicle pain.  The examiner thereafter noted that an October 2010 ultrasound showed tubular ectasia bilateral testes, small lateral hydroceles and varicocles, and a 3 mm right epididymal head cyst or spermatocele.  On examination, the right testicle was tender but with no swelling or masses.  

Lastly, the Board notes that while treatment document the Veteran's repeated complaints and treatment for right testicle pain, these treatment records do not show his adverse symptomatology to be worse than what was reported at the above VA examinations.

The record is uniform in showing that the Veteran's right testicular pain with epididymitis did not cause urinary tract infections requiring long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management.  In fact, the Veteran denied having urinary tract infections or hospitalizations because of his service connected disability at most of his VA examinations.  Therefore, the Board finds that a compensable rating is not warranted for his right testicular pain with epididymitis under Diagnostic Code 7525 when rated based on urinary tract infections.  See 38 C.F.R. §§ 4.115a, 4.115b.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.

The Board will next consider if it should rate the Veteran's right testicular pain with epididymitis by analogy to another diagnostic code used to rate genitourinary injuries and diseases.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding that the Board's choice of a diagnostic code should be upheld so long as it is supported by explanation and evidence.).

In this regard, the record reveals that the Veteran's primary disability is his objective complaints of pain and the subjective evidence of tenderness noted by the September 2011 VA examiner as well as the adverse symptomatology seen in the October 2010 ultrasound.  However, the Board does not find that any of the other diagnostic codes found at 38 C.F.R. § 4.115b provides a better match for rating the Veteran's service connected right testicular pain with epididymitis than that already applied by the RO (i.e., Diagnostic Code 7525 (chronic epididymo-orchitis)).  Therefore, the Board will not rate his right testicular pain with epididymitis by analogy to another diagnostic code.  See Butts, 5 Vet. App. at 538.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.

In reaching the above conclusion, the Board has not overlooked the fact that the Veteran complained of frequency to his VA examiners.  However, no medical professional has ever opined that this frequency is a residual of his service-connected right testicular pain with epididymitis.  Therefore, the Board will not rate his disability as urinary frequency under 38 C.F.R. § 4.115a.

Left Knee Disorder

The October 2006 rating decision granted the Veteran a 10 percent rating for his left knee disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5020.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5020, synovitis is rated on limitation of motion like degenerative arthritis.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling.  Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling.  And, severe recurrent subluxation or lateral instability warrants a 30 percent rating.

The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2012).  The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order.  If flexion of the knee is limited to 30 degrees a 20 percent rating is in order.  If flexion of the knee is limited to 15 degrees a 30 percent rating is in order.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order.  If extension of the knee is limited to 15 degrees a 20 percent rating is in order.  If extension of the knee is limited to 20 degrees a 30 percent rating is in order.  If extension of the knee is limited to 30 degrees a 40 percent rating is in order.

Full range of motion of the knee is from zero to 140 degrees.  38 C.F.R. § 4.71, Plate II (2012).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula (nonunion with loose motion requiring a brace or malunion) with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating.

In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings.  The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions.  Id.  

In this regard, VA General Counsel has also held that 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.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004).  The basis for the opinion was a finding that a limitation in planes of movement were each compensable.  Id.

VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 23-1997 (July 1, 1997).

As to an increased rating under Diagnostic Codes 5020, 5260, and/or 5261, at the August 2006 VA examination, the Veteran complained of left knee pain, weakness, instability, and lack of endurance.  He also complained of flare-ups two times a day with increased pain after prolonged standing which will eases with rest.  However, the flare-up did not cause additional lost range of motion.  On examination, the range of motion of the left knee taking into account the Veteran's pain was 20 to 110 degrees with no additional lost motion with repetition.  There was no objective evidence of painful motion, edema, effusion, weakness, tenderness, redness, heat, or guarding.  His gait was normal.  X-rays showed effusion.  

At the November 2007 VA examination, the Veteran complained of left knee pain but with no flare-ups.  He wore a knee brace.  The examiner thereafter reported that the Veteran's pain free flexion was zero to 30 degrees and his pain free extension was 70 to 90 degrees.  This study gave the Veteran's left knee a pain free range of motion of only 20 degrees of extension and 30 degrees of flexion.  The examiner also reported that there was no objective evidence of the Veteran's complained of pain such as painful motion, edema, effusion, weakness, tenderness, redness, heat, or guarding.  Range of motion did not change after five repetitions. 

At the August 2008 VA examination, the Veteran complained of daily left knee pain but with no flare-ups.  He wore a knee brace.  On examination, the range of motion of the left knee after three repetitions was zero to 140 degrees with no pain, fatigue, incoordination, weakness, or lack of endurance.  There was no objective evidence of redness, heat, swelling, or tenderness. 

At the June 2009 VA examination, the Veteran complained of left knee locking and giving way as well as tenderness and swelling.  He also reported having flare-ups every two to three weeks.  He wore knee brace and has been treated with steroid injections.  The Veteran also reported that he could not stand for more than a few minutes or walk more than a few yards.  A December 2008 magnetic resonance imaging evaluation (MRI) revealed a possible meniscus tear.  He had not had surgery.  On examination, there was crepitus, tenderness, and grinding.  The range of motion of the left knee after three repetitions was zero to 130 degrees with objective evidence of pain.

At the September 2011 VA general examination, the Veteran complained of chronic left knee pain but with no swelling.  He continued to wear a knee brace.  He had not had surgery.  He denied having any additional limitations with flare-ups.  On examination, there was slight tenderness under the patella.  The range of motion of the left knee after three repetitions was zero to 130 degrees with no weakness, fatigue, or incoordination.

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for left knee pain with lost motion, these records do not show the range of motion of the left knee less than what was reported at the above VA examinations.

Initially, the Board finds the most competent and credible evidence of record as to the range of motion of the left knee both taking into account the Veteran's complaints of pain and after repetition are those provided by the August 2008, June 2009, and September 2011 VA examiners and not those provided by the August 2006 and November 2007 VA examiners.  See Owens, 7 Vet. App. at 433.  The Board has reached this conclusion because the August 2006 and November 2007 VA examiners both opined that the Veteran's pain, which was caused his additional lost motion, was not supported by any objective evidence such as edema, effusion, weakness, tenderness, redness, heat, or guarding.  See 38 C.F.R. §§ 4.40, 4.45; see also Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence).

As to an increased rating under Diagnostic Code 5260, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, that the Veteran's functional losses do not equate to the criteria required for a 20 percent rating because, at its worst, flexion of the knee is not limited to 30 degrees but instead is 130 degrees.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to an increased rating under Diagnostic Code 5261, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, that the Veteran's functional losses do not equate to the criteria required for a 20 percent rating under Diagnostic Code 5261 because, at its worst, extension of the knee is not limited to 15 degrees but instead is zero degrees.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to separate compensable ratings under Diagnostic Code 5260 and Diagnostic Code 5261 under VAOPGCPREC 9-2004, the Board notes that when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, the Veteran's functional losses do not equate to the criteria required for separate compensable ratings under Diagnostic Code 5260 and under Diagnostic Code 5261 because flexion of the knee, at its worst, was limited to 130 degrees and not 45 degrees and extension of the knee, at its worst, was limited to zero degrees and not 10 degrees.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; VAOPGCPREC 9-2004.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to a separate compensable rating under Diagnostic Code 5257, the Board notes that the record is negative for objective evidence of left knee recurrent subluxation or lateral instability.  In fact, the August 2006, November 2007, August 2008, and June 2009 VA examiners opined that there was no subluxation or lateral instability and/or opined that the knee was stable.  These opinions are not contradicted by any other medical opinion of record.  Therefore, a separate compensable rating is not warranted under Diagnostic Code 5257 for slight subluxation or lateral instability of the left knee.  38 C.F.R. § 4.71a; VAOPGCPREC 23-1997.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to an increased rating under Diagnostic Code 5256, the Board notes that VA and private treatment records document lost left knee motion.  Similarly, the range of motion of the left knee was restricted at all of the Veteran's VA examinations.  See VA examinations dated in August 2006, November 2007, August 2008, June 2009, and September 2011.  However, the record on appeal never shows the left knee being ankylosed.  In fact, the August 2008 and June 2009 VA examiners specifically opined that there was no ankylosis of the left knee.  These opinions are not contradicted by any other medical opinion of record.  In the absence of ankylosis, the Board may not rate his service-connected left knee disorder as ankylosis.  Johnston v. Brown, 10 Vet. App. 80 (1997).  Consequently, an increased rating is not warranted for the Veteran's left knee disorder under Diagnostic Code 5256.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to an increased rating under Diagnostic Codes 5259 and/or 5263, the Board notes that the disability rating already assigned the Veteran's service-connected left knee disorder meets the maximum rating possible under these code sections.  Therefore, an increased rating under these code sections must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to an increased rating under Diagnostic Code 5258 or Diagnostic Code 5262, the record on appeal is negative for objective evidence of dislocated semilunar cartilage or malunion or nonunion of the tibia and fibula.  VA examinations dated in August 2006, November 2007, August 2008, and June 2009; x-rays dated in August 2006 and December 2008; and an MRI dated in December 2008, do not show this symptomatology.  In the absence of objective evidence of dislocated semilunar cartilage or malunion or nonunion of the tibia and fibula, the Board will not rate his service-connected left knee disorder as dislocated semilunar cartilage impairment of the tibia and fibula.  Consequently, an increased rating is not warranted for the Veteran's service-connected left knee disorder under Diagnostic Code 5258 or Diagnostic Code 5262.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

Mid-Back Disorder

The October 2006 rating decision confirmed and continued a 10 percent rating for his mid-back disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5237 (lumbosacral strain).  A December 2009 rating decision thereafter granted a 20 percent rating for the Veteran's mid-back disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5237, effective from November 19, 2009.

In this regard, under the General Rating Formula for Disease and Injuries of the Spine, the claimant will only be entitled to a 20 percent rating for his disability if there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.  A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine.  (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992).).  38 C.F.R. § 4.71a.

Under the Formula for Rating Intervertebral Disc Syndrome, a 20 percent rating is warranted when the intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months and a 40 percent rating when the intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.  Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest.  Id.

The August 2006 VA examiner opined that the range of motion of thoracolumbar spine, after taking into account the Veteran's complaints of pain and after repetition, was forward flexion to 45 degrees and the combined range of motion of the thoracolumbar spine was 165 degrees (forward flexion to 45 degrees; backward extension to 20 degrees; left and right lateral flexion to 20 degrees; and left and right rotation to 30 degrees).  There were spasms in the mid-thoracic muscle without guarding but tenderness.  It was opined that the spasm was not severe enough to result in abnormalities such as abnormal gait or spinal contour.  There was no ankylosis.  

Likewise, at the November 2007 VA examination, the range of motion of thoracolumbar spine after taking into account the Veteran's complaints of pain and after repetition was forward flexion to 30 degrees and the combined range of motion of the thoracolumbar spine was 140 degrees (forward flexion to 30 degrees; backward extension to 10 degrees; left and right lateral flexion to 20 degrees; and left and right rotation to 30 degrees).  The examiner also reported that the Veteran flexion was 0 to 90 degrees following his knee examination.  Moreover, there was no objective evidence of painful motion, spasms, weakness, tenderness, guarding, or posture abnormality. 

Similarly, at the November 2009 VA examination, there was tenderness to palpation of the thoracic spine with no muscle spasms.  The range of motion of thoracolumbar spine after taking into account the Veteran's complaints of pain and after repetition was forward flexion to 50 degrees and the combined range of motion of the thoracolumbar spine was 150 degrees (forward flexion to 50 degrees; backward extension to 20 degrees; left and right lateral flexion to 20 degrees; and left and right rotation to 20 degrees).   

Thereafter, at the September 2011 VA general examination, the Veteran complained of mid-back pain that occasionally radiated down the left leg but without any numbness.  On examination, there was tenderness to palpation of the thoracic spine with no muscle spasms or atrophy.  The range of motion of thoracolumbar spine after taking into account the Veteran's complaints of pain and after repetition was forward flexion to 50 degrees and the combined range of motion of the thoracolumbar spine was 160 degrees (forward flexion to 50 degrees; backward extension to 10 degrees; left and right lateral flexion to 25 degrees; and left and right rotation to 25 degrees).   

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for mid-back pain with lost motion, these records do not show adverse symptomatology worse than what was reported at the above VA examinations.

As to an increased rating under the General Rating Formula for Disease and Injuries of the Spine, the Board finds that when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, that his functional losses for his mid-back disorder equate to the criteria required for a 20 percent rating because flexion of the thoracolumbar spine was less than 60 degrees.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  Therefore, the Board concludes that a 20 percent rating is warranted prior to November 19, 2009.

Given the above award of a 20 percent rating for the Veteran's mid-back disorder at all times prior to November 19, 2009, as well as the fact that the claimant is already entitled to a 20 percent rating for his mid-back disorder at all times from November 19, 2009, the Board will next see if he is entitled to a disability rating in excess of 20 percent for his mid-back disorder at any time during the pendency of the appeal.  

As to an increased rating for the Veteran's mid-back disorder under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis, while the range of motion of the thoracolumbar spine was restricted at all of the Veteran's VA examinations, it was never reported to be ankylosed.  In fact, the August 2006 VA examiner specifically opined that there was no ankylosis of the thoracolumbar spine.  Likewise, the treatment records found in the claims file never shows the thoracolumbar spine being ankylosed.  In the absence of ankylosis, the Board may not rate his service-connected mid-back disorder as ankylosis.  Johnston, 10 Vet. App. at 80.  Consequently, a rating in excess of 20 percent is not warranted for the Veteran's service-connected mid-back disorder under this part of the General Rating Formula for Disease and Injuries of the Spine.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to an increased rating for the Veteran's mid-back disorder under the General Rating Formula for Disease and Injuries of the Spine, due to limitation of motion of the thoracolumbar spine, the Board finds that when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, his functional losses do not equate to the criteria required for a 40 percent rating.  Although forward flexion was measured to 30 degrees at the November 2007 VA examination, the Board does not find that the measurement is representative of limitation of motion of the thoracolumbar spine.  The prior VA examination in August 2006, and the two subsequent VA examinations in November 2009 and September 2011, showed that forward flexion was limited to 45 degrees and 50 degrees.  In view of these multiple examinations reflecting limitation of flexion to greater than 30 degrees both before and after the other measurement, the Board finds that the competent and credible evidence tends to show that the Veteran's flexion of the thoracolumbar spine has not been limited to 30 degrees or worse.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a.  Consequently, a rating in excess of 20 percent is not warranted for the Veteran's service-connected mid-back disorder under this part of the General Rating Formula for Disease and Injuries of the Spine.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

As to an increased rating under the Formula for Rating Intervertebral Disc Syndrome, while the Veteran and his representative claim that the appellant's adverse mid-back symptomatology causes him to be unable to function at times, there is no competent and credible evidence in the record of it requiring physician prescribed bed rest for 4 weeks or more during any 12 month period at any time during the pendency of the appeal.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  In fact, at the August 2006, November 2007, and September 2011 VA examination it was specifically reported that he had not had any incapacitating episodes.  Likewise, the treatment records are negative for any evidence of physician prescribed bed rest because of the Veteran's mid-back disorder.  Therefore, a rating in excess of 20 percent is also denied under the Formula for Rating Intervertebral Disc Syndrome.  38 C.F.R. § 4.71a.  This is true at all times during the pendency of the appeal and therefore consideration of staged ratings is not warranted.

The Board next notes that Note 1 to 38 C.F.R. § 4.71a allows the Veteran to receive a separate compensable rating for adverse neurological symptomatology associated with his service connected mid-back disorder.  

In this regard, a review of the record on appeal shows the Veteran's complained of pain radiating down into his left leg.  However, a November 2010 electromyography (EMG) was normal.  Likewise, neurological examinations conducted at the August 2006, November 2007, and September 2011 VA examinations were also normal.  These opinions are not contradicted by any other medical opinion of record.  In this regard, while the November 2009 VA examiner reported that the Veteran had no reflexes in the knees and 1+ reflexes in the ankles as well as weak extensor hallucis muscle strength this adverse symptomatology was not attributed to the service connected mid-back disorder and pinprick sensation was normal.

Therefore, despite the Veteran's claims to the contrary, the Board finds that the most competent and credible evidence of record does not show that his mid-back disorder is manifested by adverse neurological symptomatology.  Accordingly, the Board finds that the claimant is not entitled to a separate compensable rating for adverse neurological symptomatology.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.  This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings is not warranted.

Lastly, the Board notes that each of the ways by which the mid-back is ratable, other than some of those described in 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012), contemplates limitation of motion.  Also see VAOPGCPREC 36-97; 63 Fed. Reg. 31262 (1998).  Therefore, assigning separate ratings on the basis of both a strain and other symptoms, such as those set forth in Diagnostic Code 5242, would be inappropriate at any time during the pendency of the appeal.  38 C.F.R. § 4.14 (2012).  

Skin Disorder

The August 2010 rating decision granted service connection for dermatitis with tinea versicolor and tinea cruris and rated it as 10 percent disabling effective from April 6, 2010, under 38 C.F.R. § 4.118, Diagnostic Code 7813-7806 (2012).

In this regard, because the Veteran filed his claim of service connection for his skin disorder in April 2010, only the post-October 2008 revisions to 38 C.F.R. § 4.118 are applicable to the current appeal.  See 73 Fed. Reg. 54708 (Sept. 23, 2008). 

Under 38 C.F.R. § 4.118, Diagnostic Code 7813, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability.

Given the nature of the Veteran's disability as described at the VA examinations outlined below, the Board finds that his skin disorder's predominant disability is closest to those found when rating dermatitis.  See Butts, 5 Vet. App. at 538.

In this regard, under 38 C.F.R. § 4.118, Diagnostic Code 7806, a 10 percent rating is warranted where the skin disability covers at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period; a 30 percent rating is assigned when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or by systemic therapy being required for a total duration of six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating is assigned when the disorder covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or by constant or near-constant systemic therapy being required during the past 12-month period. 

With the above criteria in mind, at the June 2010 VA examination, the Veteran complained of chronic itching and burning as well as reported that he treated his symptoms with Clotrimazole (an over the counter non-steroid antifungal medication) twice a day.  The examiner thereafter opined that tinea versicolor covered zero percent of the entire body and 4 percent of exposed areas affected; tinea cruris covered less than 1 percent of the entire body and 0 percent of exposed areas affected; and dermatitis covered 2 percent of the entire body and 15 percent of exposed areas affected.  The diagnoses were tinea versicolor of the chest and back, tinea cruris, and dermatitis of the head and neck.

Thereafter, at the September 2011 VA general examination, the Veteran continued to complain of an itchy rash that he treated with ketoconazole (a non-steroid antifungal medication).  On examination, there was no evidence of tinea versicolor or tinea cruris. 

While a review of the record on appeal reveals the Veteran's periodic complaints and treatment for his skin disorder, these records do not show adverse symptomatology worse than what was reported at the above VA examinations.

Initially, Board notes that the record is negative for any evidence that the Veteran's skin disorder required systemic therapy being for a total duration of six weeks or more during any 12-month period during the pendency of the appeal.  The Board also finds that the most competent and credible evidence of record does not show that the Veteran skin disorder covers at least 20 percent of his entire body or 20 percent of the exposed areas affected.  Therefore, the Board finds that the claim for a higher evaluation must be denied.  38 C.F.R. § 4.118, Diagnostic Code 7813-7806.  This is true at all time from April 6, 2010, and therefore consideration of staged ratings is not warranted.

Conclusion

In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record.  In this regard, the Veteran is competent to report on what he sees and feels and others are competent to report on what they can see.  However, the Board finds more competent and credible the medical opinion as to the severity of his disabilities provided by the expert at the Veteran's VA examinations than these lay assertions.  See Black, 10 Vet. App. at 284; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993).

Based on the Veteran's and his representative's claims that the appellant's disabilities are worse than rated, the Board will consider the application of 38 C.F.R. § 3.321(b)(1) (2012).   

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.   In short, there is nothing in the record to indicate that these service-connected disabilities cause impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted,

In adjudicating the current appeal for higher evaluations, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability).  However, during the pendency of the current appeal for increased ratings for many of his service connected disabilities, the RO denied the Veteran's claim for a TDIU in a November 2011 rating decision.  The Veteran did not appeal that rating decision.  Therefore, the Board finds that the current appeal does not include a claim for a TDIU.  See 38 C.F.R. §§ 20.200, 20.302(c) (2012) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case); Roy v. Brown, 5 Vet. App. 554, 556 (1993) (if the claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision").  

In adjudicating the current appeal for higher evaluations, the Board has also considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against the Veteran's claims to the extent outlined above, the doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a right knee disorder is reopened, and to that extent only, the appeal is granted.

Service connection for PTSD is granted.

A compensable rating for bilateral pes planus is denied.

A compensable rating for right testicular pain with epididymitis is denied.

An increased rating for a left knee disorder is denied.

Prior to November 19, 2009, a 20 percent rating for a mid-back disorder is granted, subject to the laws and regulations governing the payment of monetary awards.

A rating in excess of 20 percent for a mid-back disorder is denied.

An initial rating in excess of 10 percent for a skin disorder is denied.


REMAND

As to the application to reopen a claim of service connection for folliculitis, the record does not show that the Veteran was provided notice of the laws and regulations governing claims to reopen in a statement of the case or supplemental statement of the case.  See 38 C.F.R. §§ 19.29, 19.31 (2012).  Therefore, the Board finds that this claim must be remanded to provide the Veteran with this missing notice. 

As to the claims of service connection for erectile dysfunction and a right knee disorder, the RO provided the Veteran with VA examinations in August 2008 to obtain medical opinions as to the origins of these disabilities.  However, the Board does not find the examinations to be wholly adequate.  The Board has reached this conclusion because the examiners did not provide needed medical opinions as to whether either disability was caused or aggravated by any already service-connected disability.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1994) (en banc) (holding that service connection could be granted for a disability which was not only proximately due to or the result of a service-connected condition, but where a service-connected disability had aggravated a nonservice-connected disability).  Therefore, a remand to obtain these missing medical opinions is required.  See 38 U.S.C.A. § 5103A(d); Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As to the claim of service connection for a prostate disability, service treatment records starting in 1989 document the Veteran's complaints and treatment for chronic prostatitis which diagnosis continued through to 1996.  Moreover, post-service the August 2006 VA examiner diagnosed prostatitis and the September 2011 general VA examiner diagnosed the Veteran with benign prostatic hypertrophy.  Additionally, the Veteran has claimed that he had had the same problems with the observable symptoms of his prostate disability since military service and the Board finds that he is competent to report on such observable symptomatology.  Given the above record, the Board finds that this issue should be remanded to obtain a medical opinion as to the relationship, if any, between the Veteran's current prostate disability and his military service.  See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006).

The Veteran receives ongoing treatment from the Central Texas Health Care System including from the Temple and Dallas VAMCs.  However, his post-November 2011 treatment records from these facilities are not found in the record.  Therefore, while the appeal is in remand status these records should also be obtained and associated with the claims file.  38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records).

Accordingly, these issues are REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC should obtain and associate with the claims file the Veteran's treatment records dated since November 2011 from the Central Texas Health Care System including his records from the Temple and Dallas VAMCs.  All actions to obtain the requested records should be documented fully in the claims file.

2.  The RO/AMC should provide the Veteran with notice of the evidence and information that is necessary to reopen the claim of service connection for folliculitis as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim in the August 2005 rating decision.  See Kent, 20 Vet. App. 1.

3.  After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a VA examination by an appropriate medical doctor to obtain an opinion as to the relationship, if any, between the his erectile dysfunction and his service-connected right testicular pain with epididymitis.  The claims file should be provided to the examiner in connection with the examination.  The examiner should conduct all indicated tests and studies.  After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions:

a.  Is it at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction was caused by his service-connected right testicular pain with epididymitis?
	
b.  Is it at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction was aggravated by his service-connected right testicular pain with epididymitis?

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disability.  

If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  

If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. 

In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

4.  The RO/AMC should also provide the Veteran with a VA examination by an appropriate medical doctor to obtain an opinion as to the relationship, if any, between the Veteran's right knee disorder and a service-connected disability including his left knee disorder and/or mid-back disorder.  The claims file should be provided to the examiner in connection with the examination.  The examiner should conduct all indicated tests and studies.  After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions:

a.  Is it at least as likely as not (50 percent probability or more) that the Veteran's right knee disorder was caused by any service-connected disorders including his left knee disorder and mid-back disorder?
	
b.  Is it at least as likely as not (50 percent probability or more) that the Veteran's right knee disorder was aggravated by any service-connected disorders including his left knee disorder and mid-back disorder??

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disability.  

If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  

If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. 

In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

5.  The RO/AMC should also provide the Veteran with a VA examination by an appropriate medical doctor to obtain an opinion as to the relationship, if any, between the Veteran's current prostate disability and his military service.  The claims file should be provided to the examiner in connection with the examination.  The examiner should conduct all indicated tests and studies.  After a review of the record on appeal and an examination of the claimant, the examiner should provide an answer to the following question:

Is it at least as likely as not (50 percent probability or more) that the Veteran's current prostate disability was caused by or has continued since service?

In providing an answer to the above question, the examiner should comment on and/or take note of the fact that the claimant is competent to report on the observable symptoms of his disability, service treatment records dated from 1989 to 1996 documented his complaints and treatment for chronic prostatitis, the August 2006 VA examiner diagnosed him with prostatitis, and the September 2011 general VA examiner diagnosed him with benign prostatic hypertrophy.  

If the examiner cannot provide an answer to the above question, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing an answer to the above question, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

6.  After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand.  If a report is deficient in any manner, it should be returned to the examiner for corrective action.

7.  The RO/AMC should thereafter readjudicate the claims remaining on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) which includes citation to all evidence added to the claims file since the May 2012 SSOC as well as notice of the laws and regulations governing claims to reopen.  A reasonable period of time should be allowed for response before the appeal is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky, 12 Vet. App. at 369.

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



______________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs