Citation Nr: 1311580 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-20 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for lumbar paravertebral myositis, claimed as back pain, to include as secondary to a service-connected disability. 2. Entitlement to service connection for degenerative disc disease of the cervical spine, claimed as a neck condition, to include as secondary to a service-connected disability. 3. Entitlement to an initial increased rating for adjustment disorder with depressed mood, evaluated as noncompensably disabling from June 25, 2007 to July 20, 2008, and 10 percent disabling from July 21, 2008. 4. Entitlement to an initial evaluation in excess of 10 percent for plantar fasciitis associated with flatfoot, claimed as both feet arches, from October 2, 2002 to August 16, 2010. 5. Entitlement to an initial evaluation in excess of 10 percent for right plantar fasciitis associated with flatfoot, claimed as both feet arches, effective August 16, 2010. 6. Entitlement to an initial evaluation in excess of 10 percent for left plantar fasciitis associated with flatfoot, claimed as both feet arches, effective August 16, 2010. ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from January 1980 until January 1983. He also served in the U.S. Army National Guard from February 1983 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In December 2010, the Board remanded the Veteran's claims for service connection for the low back and cervical spine disability for additional evidentiary development. Specifically, the Board requested that the agency of original jurisdiction (AOJ) retrieve the Veteran's updated VA treatment records, and obtain a clarifying medical opinion from the same examiner who conducted the January 2009 VA examination, addressing whether the Veteran's current back and neck conditions had their onset in service or are otherwise related to his military service. Pursuant to the December 2010 Board Remand, the Veteran's outstanding VA treatment records have been secured, and a VA medical opinion was obtained in March 2011. As additional questions remained regarding the etiology of the Veteran's claimed disorders, in a May 2012 letter, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(a) (2012). The VHA requested the medical opinion from a VA Medical Center (VAMC) and obtained an opinion from a VA medical expert in June 2012. As this opinion did not address some of the questions listed in the May 2012 letter, the Board sought an additional addendum opinion from the same VA medical expert in November 2012. An additional opinion which addressed all the questions raised in the Board's November 2012 request was issued by the same VA medical expert in November 2012, and has since been associated with the Veteran's claims folder. The issues of entitlement to an initial increased rating for adjustment disorder with depressed mood, evaluated as noncompensably disabling from June 25, 2007 to July 20, 2008, and 10 percent disabling from July 21, 2008; entitlement to an initial evaluation in excess of 10 percent for plantar fasciitis associated with flatfoot, from October 2, 2002 to August 16, 2010; entitlement to an initial evaluation in excess of 10 percent for right plantar fasciitis associated with flatfoot, effective August 16, 2010; and entitlement to an initial evaluation in excess of 10 percent for left plantar fasciitis associated with flatfoot, effective August 16, 2010 are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran's low back disability, which has been diagnosed as lumbar paravertebral myositis, was first identified many years after active duty and is not related to any injury, disease or event incurred in service, or to any service-connected disability. 2. The Veteran's cervical spine disability, which has been diagnosed as cervical degenerative disc disease, was first identified many years after active duty and is not related to any injury, disease or event incurred in service, or to any service-connected disability. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 1154, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. A cervical spine disability was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 1154, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a December 2008 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, he was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board finds that the December 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned December 2008 letter. In addition, the December 2008 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating and an award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Further, the December 2008 letter informed the Veteran of the evidence necessary to establish service connection on a secondary basis. Specifically, this letter indicated that establishing service connection on a secondary basis requires evidence of a current physical or mental condition and evidence that a service-connected disability either caused or aggravated his claimed disorder. The Board finds that the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records as well as all identified and available VA and private treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the service connection claims adjudicated herein. The RO attempted to obtain potential outstanding service treatment records associated with the Veteran's period of service in the National Guard. An October 2005 Personnel Information Exchange System (PIES) Request for additional service treatment records returned no new records, and indicated that the Veteran's complete service treatment records had already been furnished to the San Juan RO in December 2002. Based on information provided by the Veteran, in a May 2007 letter addressed to the Virgin Island National Guard Joint Force Headquarters, the RO requested any available treatment and/or personnel records pertaining to the Veteran's service with the National Guard. An October 2007 response from this unit indicated that a search through their records did not recover any additional pertaining to the Veteran. [Currently, the service treatment records associated with the Veteran's claims file consist of service treatment records pertaining to his period of active service, the February 1983 examination pursuant to his enlistment with the U.S. Army National Guard, and clinical records dated in August 1983 and March 1984.] Based on the foregoing, the Board concludes that VA has done everything reasonably possible to assist the Veteran in obtaining his complete service treatment records and the Veteran has not contended otherwise. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran was afforded a VA examination relating to his claims in January 2009 and an addendum medical opinion was obtained in March 2011. The Board also notes that VHA medical expert opinions were obtained in June and November 2012. The Board finds that collectively these medical reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). They reflect that the physicians reviewed the Veteran's past medical history, his current complaints, conducted/reviewed necessary testing and examination findings, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Veteran has not contended otherwise. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Service connection means that the facts establish 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 during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran is currently service connected for plantar fasciitis and bunion formation associated with plantar fasciitis and contends that his current low back and neck disorders arose as a result of these service-connected disorders. See December 2008 claim. Although he appears to primarily contend that his low back and neck disorders are secondary to a service-connected disorder, the Board will address his claim on both a direct and secondary basis. The Veteran's October 1979 entrance examination is clear for any signs, notations, or complaints of, or treatment provided for the back and neck condition. Specifically, the examination report noted that the Veteran's spine was normal upon clinical evaluation. The Veteran's service treatment records do reflect complaints of neck and back pain in service. In February 1980, the Veteran presented at the military clinic with complaints of cervical neck pain of one year duration. According to the Veteran, the pain came about only when he was under stress. Upon examining the Veteran, the treatment provider observed signs of tenderness to the right and left sternocleidomastoid muscles. The treatment provider further noted that the Veteran's neck and shoulder muscles were tense, but clear for signs of spasms. An April 1980 Health Record reflects the Veteran's complaints of pain at the base of the neck between the shoulder blades, and a physical evaluation of the Veteran revealed signs of myalgia in the left shoulder area. Lastly, in May 1982, the Veteran presented at the military clinic with complaints of pain at the base of his neck. Upon physical evaluation, the treatment provider noted that the Veteran exhibited pain on forced extension and rotation of the neck bilaterally. The Veteran was diagnosed with a probable muscle strain. The Veteran's February 1983 entrance examination pursuant to his enlistment in the U.S. Army National Guard is also clear for any signs, notations, complaints or treatment for the spine, to include the back and neck region. Indeed, the clinical evaluation of the Veteran's spine was shown to be normal, and the Veteran denied a history of musculoskeletal problems, to include a history of recurrent back pain, in his medical history report. In addition, the Veteran had a physical profile of 'P1' at the time of this examination. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Board finds that the weight of the evidence demonstrates that during the Veteran's service there was no combination of manifestations sufficient to identify a cervical or lumbar spine disability so as to establish chronicity of such claimed disorders during service. 38 C.F.R. § 3.303(b). While service treatment records reflect findings of myalgia and probable muscle strain in the neck on various occasions, there were no actual clinical findings of a chronic cervical or lumbar spine disability. Thus, while the Veteran underwent a few episodes of neck pain while on active duty service, the service treatment records do not indicate that he was diagnosed with a chronic neck disorders. To the contrary, the evidence indicates that the neck symptoms experienced during active duty service were of an acute and transitory nature. The remainder of the service treatment records associated with the Veteran's period of service in the U.S. Army National Guard is clear for any complaints of, or treatment for, back and/or neck problems. Additionally, VA treatment records dated in July 1985 (while the Veteran was still serving in the U.S. Army National Guard) are negative for any complaints of, or treatment for, neck and/or back problems. Indeed, the Board further observes that the post-service record on appeal is similarly negative for any findings of complaints, treatment or diagnosis of a back or neck disorder until several decades after service. In fact, the first post-service medical evidence of record pertaining to the Veteran's back and neck condition is the January 2009 VA examination report. This examination report is dated twenty-six years after the Veteran's separation from service. During this examination, the Veteran provided his medical history and reported that he started to develop cervical and lumbar spine pain shortly after he developed a bunion deformity in his left foot. According to the Veteran, his cervical pain was located around the left side of his body, was constant, local and deep, and worsened during physical activities. The Veteran also underwent an x-ray of his lumbar spine, the results of which showed significant degenerative joint disease, particularly at the lower lumbosacral junction, and mild osteopenia. Based on his review of the claims file, as well as his discussion with and evaluation of the Veteran, the VA examiner diagnosed the Veteran with cervical degenerative disc disease and left lumbar paravertebral myositis. According to the examiner, neither of these disorders were caused by, or a result of, the Veteran's service-connected bunion formation associated with his plantar fasciitis. He (the examiner) explained that both claimed disorders belong to different anatomical regions with different pathophysiological processes unrelated to the bunion formation associated with his plantar fasciitis. An addendum opinion was obtained from this same examiner in March 2011. In this opinion, the VA examiner was asked to discuss whether the Veteran's current back and/or neck condition had its/their onset in service or is/are otherwise related to his military service. The examiner was also asked to address the February 1980, April 1980, and May 1982 service treatment records, and reconcile his opinion with these in-service findings. According to the VA examiner, the Veteran's cervical degenerative disc disease and left lumbar paravertebral myositis are less likely than not caused by or a result of the Veteran's military service. He acknowledged the specified in-service treatment records reflecting the Veteran's complaints of muscle pain in the neck region, as well as assessments of myalgia and possible muscle strain, but determined that "none of the documented findings correlate with the current diagnosis of cervical degenerative disc disease which is an expected finding related to the normal process of aging." The examiner further noted that the Veteran's claims file was silent for a lumbar spine condition. While this medical opinion is sufficient with respect to the Veteran's cervical spine disability, the VA examiner's conclusion with respect to the Veteran's low back disability was based on an inaccurate factual premise, as the Veteran's claims file does reflect documentation of a lumbar spine disability - as reflected by the diagnosis of lumbar paravertebral myositis in January 2009. In addition, while the VA examiner had previously addressed whether the Veteran's neck and back condition were related to his service-connected disorders, he did not specifically state whether the Veteran's back and/or neck conditions were aggravated by his service-connected plantar fasciitis and/or bunion formation. Since the record remained unclear as to the nature and etiology of the Veteran's lumbar and cervical spine disabilities, the Board referred this case to the VHA to obtain a medical opinion from an appropriate health care professional. The Board asked that an orthopedist provide a medical advisory opinion which specifically addressed whether the Veteran's current neck and back disabilities had their onset in service, or were otherwise causally related to his military service. The Board also asked that the orthopedist address whether the Veteran's neck and back condition were either caused, and/or aggravated (permanently worsened beyond the natural progression of the disease) by his service-connected disabilities, to include the plantar fasciitis and/or bunion formation. The record reflects that the VHA sent the request out to the VAMC in St. Louis, Missouri, to obtain an opinion from a VA medical expert. The opinion was provided by the Chief of the Orthopedic Surgery Service, J.K, M.D., in June 2012. Based on his review of the claims file, Dr. K. opined that it is not at least as likely as not that the Veteran's cervical spine disability, had its onset in, or is otherwise causally related to his military service. Dr. K. based his opinion on the February 1980 service treatment note reflecting the Veteran's reported history of neck pain which reportedly began one year prior. According to Dr. K., if the Veteran's current symptoms and cervical spine condition are attributed to a condition that was identified during his military service, then this condition was a pre-existing one, and not one that had its onset in, or is otherwise causally related to military service. With respect to Dr. K's line of reasoning, the Board notes that the Veteran's October 1979 entrance examination is completely negative for any complaints or previous diagnoses of a cervical spine disability. Indeed, the only evidence indicating that the Veteran's cervical spine disability pre-existed his enlistment consists exclusively of statements made by the Veteran during an in-service treatment consultation. The Board observes that lay statements, standing alone, are insufficient to rebut the presumption of soundness which arose when the Veteran was accepted for service. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). As such, the Board is not persuaded that there is objective evidence demonstrating that the Veteran's current cervical spine disability existed prior to service. Turning back to the June 2012 medical opinion, Dr. K. further determined that it is not at least as likely as not that the Veteran's lumbar paravertebral myositis had its onset in service or is causally related to his military service. According to Dr. K., "[t]here is no substantiation that this veteran had any lumbar spine condition during his period of military service." In reaching this conclusion, Dr. K. referenced the Veteran's February 1983 examination report pursuant to his enlistment in the U.S. Army National Guard, wherein the Veteran indicated that he was in good health, and denied a history of musculoskeletal concerns, to include any complaints of recurrent back pain. With respect to whether the Veteran's lumbar and cervical-spine disabilities were secondary to his service-connected plantar fasciitis and/or bunion formation, Dr. K. determined that neither disability was caused and/or aggravated by these service-connected disabilities. However, Dr. K. appears to have only addressed the direct theory of entitlement when providing the medical reasoning for this conclusion. In his explanation, Dr. K. referenced the Veteran's service treatment records, noting that the records were devoid of any evidence indicating that either condition originated in, and/or was exacerbated during the Veteran's period of military service. He also referenced the February 1983 examination report, noting that the Veteran denied having a "bone, joint, or other deformity" in his medical history report. However, Dr. K., went on to explain that a literature review conducted on PubMed, the National Institute of Health's search engine of published literature (http://www.ncbi.nlm.nih.gov) did not provide "any substantiated causality or linkage between the conditions of plantar fasciitis or hallux valgus (bunion) with lumbar paravertebral myositis or cervical degenerative disc disease." According to Dr. K., while the Veteran's personal history has led him to attribute his lower back and neck deterioration to his bilateral foot condition, "there is no substantiation that any causal linkage between these conditions has a mechanical explanation or has either a medical or scientific basis." As mentioned above, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by, or (b) proximately aggravated by, a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While Dr. K. discussed whether the Veteran's cervical and lumbar spine condition were caused by his service-connected bilateral foot disabilities, he did not discuss whether the claimed disorders were aggravated by the service-connected disabilities. In light of the fact that additional clarification was necessary with regard whether the Veteran's cervical spine disability originated in service, and whether the Veteran's cervical and lumbar spine disabilities were secondary to his service-connected disorders, the Board referred the claims file to Dr. K. for an additional advisory opinion. In the November 2012 request, the Board specifically instructed Dr. K to presume that the Veteran was in sound condition and had no pre-existing cervical spine condition at the time he entered service, when rendering his opinion. An additional advisory opinion was issued by Dr. K. in November 2012. In this opinion, Dr. K. explained that any previous comparison he made between the Veteran's in-service symptoms and symptoms he (the Veteran) may have experienced prior to service was not an attempt to classify the Veteran's condition as a pre-existing one, "but to simply report that these symptoms were not likely attributable to a traumatic or degenerative process that was obtained as a result of military service any more than from a natural degenerative process that is expected to occur with normal aging and use over an individual's lifetime." Dr. K. referenced the Veteran's service treatment records, and noted that any in-service complaints of neck pain were "always associated with stress and not with a specific or injury mechanism or activity attributable cause." He went on to explain that stress, whether physical or emotional, is not expected to cause a structural change in bone, disc, ligament, muscle or tendon that would lead to a disability in the future. According to Dr. K., as the nature of the Veteran's current complaints were not known to him, "it is not possible to determine any causal link between [the Veteran's] current condition and 'stress related' neck pain that was noted in the medical record in the absence of a specific injury mechanism." With respect to the secondary theory of entitlement, Dr. K. concluded that the Veteran's cervical spine and lumbar spine disabilities were neither caused, nor aggravated by his service-connected disabilities. In reaching this conclusion, he reiterated the previous explanation provided in the June 2012 medical advisory opinion. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for the low back disability and the cervical spine disability. First, there is no evidence that the first manifestation of degenerative changes of the cervical and lumbar spine occurred within the first post-service year after the Veteran's discharge from service in January 1983, nor has the Veteran so contended. As such, service connection on a presumptive basis is not warranted for either disability. With respect to direct service connection, the competent medical evidence of record does not relate the Veteran's cervical spine and lumbar spine disabilities to his service. Indeed, in the March 2011 VA medical opinion, the VA examiner acknowledged the in-service notations reflecting the Veteran's complaints of neck pain, and determined that these documented findings did not correlate with the current diagnosis of cervical degenerative disc disease. According to the VA examiner, this particular finding (cervical degenerative disc disease) is related to the normal aging process. A collective review of the June 2012 and November 2012 advisory opinions further supports the March 2011 VA medical opinion; namely that the Veteran's cervical spine disability was not incurred in service. In the June 2012 medical opinion, Dr. K. determined that the Veteran's cervical spine disability was not incurred in service. In the November 2012 medical opinion, Dr. K. provided a medical explanation as to why it was difficult to relate the Veteran's cervical spine disability to an in-service cause. According to Dr. K., it is not possible to determine any causal link between the Veteran's current condition and "stress related" neck pain noted in the medical record in the absence of a "specific injury mechanism." While Dr. K. added that not knowing the nature of the Veteran's current complaints was one of the reasons it was not possible to determine a causative link between the Veteran's current condition and notations of stress-related pain in service, the Board notes that the March 2011 VA examiner did have an opportunity to examine the Veteran in January 2009, and was made aware of the nature of his current cervical spine complaints, and still concluded that the Veteran's cervical spine disability was not incurred in service, or related to an in-service cause. In addition, Dr. K. did not relate the Veteran's lumbar paravertebral myositis to his service (see June 2012 medical advisory opinion), referencing the Veteran's service treatment records, as well as the February 1983 enlistment examination, which were clear for any indications or signs of back trouble, when reaching this opinion. Even if the Veteran's contentions could be read as claiming continuity of symptomatology since service, the evidence does not show that the Veteran sought treatment for his neck or back condition immediately following his period of service or for many years thereafter. Indeed, the earliest post-service evidence of record reflecting complaints of back or neck trouble is the Veteran's December 2008 claim, twenty-five years after his separation from service. The earliest post-service evidence of record reflecting diagnoses of a cervical spine and low back disorder is dated in January 2009, twenty-six years after the Veteran's period of service. In the absence of any objective evidence to support complaints of continuity of symptomatology in the passing years since service, the initial demonstration of the disabilities at issue, twenty-six years after service, is too remote from service to be reasonably related to service and diminishes the reliability of the Veteran's current recollections. Maxson v. Gober, 230 F.3d 1130 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Moreover, the Board notes that the Veteran had the opportunity to file a claim for these disabilities given the fact that he filed a claim for other noted disabilities in October 2002, however he chose not to. The fact that the Veteran underwent medical examinations and evaluations closer in time to his discharge from service, but failed to mention his neck and back trouble weighs against any possible contentions of continuing symptoms since service. Accordingly, and based on this evidentiary posture, the Board concludes that service connection for the back and cervical spine disability based on continuity of symptomatology is not warranted. Turning to the issue of service connection on a secondary basis, the Board notes that the Veteran has been diagnosed with lumbar and cervical spine disorders, and he is service-connected for bilateral plantar fasciitis and bunion formation associated with plantar fasciitis. However, the Board finds that the Veteran is not entitled to service connection for a the low back and cervical spine disorders on a secondary basis because the evidence of record does not reflect a nexus between the Veteran's service-connected bilateral foot disorders and his cervical spine and back disorders. The January 2009 examination report, in conjunction with the June 2012 and November 2012 advisory opinions are clear that the Veteran's current cervical and lumbar spine disabilities were neither caused, nor aggravated, by the service-connected bilateral plantar fasciitis and bunion formation. The January 2009 VA examiner noted that both cervical degenerative disc disease and lumbar paravertebral myositis belong to different anatomical regions and carry different pathophysiological processes that are unrelated to the Veteran's bunion formation associated with plantar fasciitis. In the June 2012 and November 2012 advisory opinions, Dr. K. determined that there was no evidence that the Veteran's cervical spine disability and lumbar spine disabilities were caused and/or aggravated by his service-connected disabilities. Specifically, he explained that there was no confirmation that any linkage between these conditions has a mechanical explanation or a medical or scientific basis. He further noted that a review of the medical literature did not provide a linkage between the Veteran's service-connected plantar fasciitis and bunion formation and his claimed disorders. The Board finds that the opinions provided by the January 2009 VA examiner and Dr. K are well reasoned and supported by reference to objective medical evidence. Further, and of particular significance to the Board in this matter, is the fact that no medical professional has provided any opinion indicating that the Veteran's cervical spine and low back disorders are in any way secondary to his service-connected bilateral plantar fasciitis and bunion formation associated with plantar fasciitis. Thus, the competent medical evidence of record reflects that the Veteran's cervical spine disability and low back disorder are not secondary to his service-connected foot disorders. The Board acknowledges the Veteran's belief that his cervical spine and low back disorders are related to his service-connected foot disorders. Although the Veteran is competent to describe symptoms of a neck and back disorder, he is not competent to comment on the etiology of such disorders. While a layperson can provide evidence as to some questions of etiology or diagnosis, the question of etiology, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Barr v. Nicholson, 21 Vet. App. 303, 309 (2007), Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Veteran is competent to report symptoms of back pain because such actions come to him through his senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to opine on the question of etiology and, therefore, his statements asserting a relationship between a current neck and back disorder and either service or a service-connected disability do not constitute competent medical evidence on which the Board can make a service connection determination. After considering the probative value of the evidence in this case, the Board finds the evidence against the Veteran's claims for service connection for a low back disorder and cervical spine disability to be more persuasive than the evidence in favor of the claim. While the Board sympathizes with his complaints, without evidence of sufficient probative value to support a relationship between his low back and cervical spine disorders and service, there is a lack of persuasive medical evidence to support his claim. The service treatment records are clear for a chronic disease with an onset in service; there is a twenty-six year gap without any objective clinical evidence to support an assertion of continuing symptomatology; and the persuasive objective medical evidence of record does not relate the Veteran's current low back and cervical spine disabilities to service or to his service-connected bilateral plantar fasciitis and/or bunion formation. The preponderance of the evidence is against the claims, the benefit of the doubt provision does not apply, and service connection for the cervical spine and low back disorders (on either a direct, or secondary, basis) is not warranted. ORDER Entitlement to service connection for lumbar paravertebral myositis, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to a service-connected disability, is denied. REMAND In the May 2008 rating decision, service connection was granted for plantar fasciitis associated with flatfoot (claimed as both feet arches), and evaluated as 10 percent disabling, effective October 2, 2002. Service connection was also granted for adjustment disorder with depressed mood, and evaluated as noncompensably disabling, effective June 25, 2007. In a July 2008 statement, the Veteran submitted what can be construed as a notice of disagreement (NOD) with the disability ratings assigned for both these service-connected disorders. A subsequent rating decision was issued in November 2008 continuing the 10 percent disability rating assigned for the plantar fasciitis, and increasing the disability rating for the service-connected adjustment disorder to 10 percent, effective July 21, 2008. In a November 2010 rating action, the RO decided to bifurcate the Veteran's service-connected plantar fasciitis associated with flatfoot into two separate claims. As such, the Veteran was awarded separate 10 percent disability ratings for the right and left plantar fasciitis associated with flatfoot, effective August 16, 2010. The Board notes, with respect to increased ratings, the Court has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a NOD as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. As the Veteran has not expressed satisfaction with any of these rating, the claims for (1) entitlement to an initial increased rating for adjustment disorder with depressed mood, evaluated as noncompensably disabling from June 25, 2007 to July 20, 2008, and 10 percent disabling from July 21, 2008; (2) entitlement to an initial evaluation in excess of 10 percent for plantar fasciitis associated with flatfoot, from October 2, 2002 to August 16, 2010; (3) entitlement to an initial evaluation in excess of 10 percent for right plantar fasciitis associated with flatfoot, effective August 16, 2010; and (4) entitlement to an initial evaluation in excess of 10 percent for left plantar fasciitis associated with flatfoot, effective August 16, 2010 remain before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). However, a Statement of the Case (SOC) has not been issued addressing this claim. The Court has held that, when an appellant files a timely NOD as to a particular issue and no SOC is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Under these circumstances, an SOC concerning the issues of (1) entitlement to an initial increased rating for adjustment disorder with depressed mood, evaluated as noncompensably disabling from June 25, 2007 to July 20, 2008, and 10 percent disabling from July 21, 2008; (2) entitlement to an initial evaluation in excess of 10 percent for plantar fasciitis associated with flatfoot, effective from October 2, 2002 to August 16, 2010; (3) entitlement to an initial evaluation in excess of 10 percent for right plantar fasciitis associated with flatfoot, effective August 16, 2010; and (4) entitlement to an initial evaluation in excess of 10 percent for left plantar fasciitis associated with flatfoot, effective August 16, 2010, should be issued. However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold v. Brown, 9 Vet. App. 124, 130 (1996). Accordingly, the case is REMANDED for the following action: Furnish the Veteran an SOC regarding the claims for (1) entitlement to an initial increased rating for adjustment disorder with depressed mood, evaluated as noncompensably disabling from June 25, 2007 to July 20, 2008, and 10 percent disabling from July 21, 2008; (2) entitlement to an initial evaluation in excess of 10 percent for plantar fasciitis associated with flatfoot, effective from October 2, 2002 to August 16, 2010; (3) entitlement to an initial evaluation in excess of 10 percent for right plantar fasciitis associated with flatfoot, effective August 16, 2010; and (4) entitlement to an initial evaluation in excess of 10 percent for left plantar fasciitis associated with flatfoot, effective August 16, 2010 should be issued. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Only if the Veteran perfects a timely appeal should these claims be certified to the Board The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs