Citation Nr: 1314091 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 06-32 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for residuals of a right wrist wrist injury. 2. Entitlement to service connection for a cervical and lumbar spine disorder to include, residuals, status-post fusion, C3-7 and L4-5, with a history of L4-5 discectomy. 3. Entitlement to service connection for bilateral foot disabilities, to include the toes. 4. Entitlement to service connection for residuals of trauma and/or assault during pregnancy claimed as gynecological disorder including but not limited to scarring of the cervix from cerclage and urinary incontinence. 5. Entitlement to an initial evaluation in excess of 50 percent for an acquired psychiatric disorder, to include a depressive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to October 1982. These matters come before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Regarding the matter of entitlement to service connection for a right foot disability to include the right toes, the Board had recharacterized the issue. In the May 2005 rating decision on appeal, the RO decided the matter of entitlement to service connection for an ingrown toenail, left great toe (claimed as a foot condition). At her June 2009 hearing before the undersigned, the Veteran clarified that she was claiming disability of the right foot/great toe. (The Board notes that STRS refer to an ingrown left great toenail). The Board in June 2009 rephrased the issue to a right foot/great toe claim. At her March 2013 hearing, the Veteran noted that regarding the matter of entitlement to service connection for a right foot testified that at one point she had been claiming a bilateral foot disorder claim, (March 2013 Hearing pp.2) for that reason, the Board has again rephrased the issues as noted above. With respect to the claim of entitlement to service connection for residuals of trauma and/or assault during pregnancy claimed as a gynecological condition, the Board has again recharacterized the issue as stated above. In her May 2004 claim, the Veteran indicated that she was seeking service connection for a gynecological condition. The RO, in the May 2005 rating decision, denied service connection for amenorrhea with menopausal symptoms (claimed as gynecological condition). At her June 2009 hearing, the Veteran clarified that she was not seeking service connection for menopause; rather she was seeking service connection for gynecological complications resulting from physical assaults during service while pregnant to include the period immediately before her pregnancy. For that reason, the Board has rephrased the issue as noted above. Regarding the matter of entitlement to service connection for residuals of a right wrist injury, at her March 2013 hearing, the Veteran clarified that she was seeking service connection for a bilateral wrist disorder and that at one point it was adjudicated that way (March 2013 Hearing pp.2). However, a review of the record indicates that the RO has exclusively considered only the right wrist. Thus, the Board cannot recharacterize this issue as it lacks jurisdiction to do so. As alluded to above, the Veteran testified at two hearings before the undersigned in June 2009 and March 2013. The hearings took place at the VA Central Office, and transcripts of the proceedings are of record. In a December 2008 rating decision, the RO granted service connection for a depressive disorder and assigned a 50 percent disability rating. In November 2009, the claims were remanded by the Board for additional development. A claim of entitlement to service connection for an injury to the left wrist is referred to the RO for appropriate action. The Veteran testified at the March 2013 hearing before the undersigned that her depressive disorder had worsened since her last VA examination. Consequently, the appeal as to an increased rating for the acquired psychiatric condition, as well as for a gynecological disorder is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly. FINDINGS OF FACT 1. The Veteran has been diagnosed with bilateral carpal tunnel syndrome and trigger fingers; such diagnoses were made several years after discharge from service. 2. The Veteran's service treatment records demonstrate a left arm and shoulder strain in April 1981 during basic training and a July 1981 fall on her right wrist while wrestling with another soldier. No other right or left wrist or upper extremity complaints or conditions are shown in service. 3. There is no competent evidence of record which relates the Veteran's current right hand and wrist disorders including, carpal tunnel syndrome and trigger fingers, to any noted incident or injury in service. 4. The Veteran has not been shown to have experienced a lumbar and/or cervical spine disorder as a result of her period of active service to include residuals, status-post fusion, C3-7 and L4-5, with a history of L4-5 discectomy, and no such disorder is shown to have manifested to a compensable degree within any applicable presumptive period. 5. The Veteran's service treatment records demonstrate a left ingrown toenail in March 1981 during basic training. No other right or left lower extremity complaints or conditions are shown in service. 6. The Veteran has not been shown to have experienced a bilateral foot disability to include the toes, as a result of her period of active service and no such disorder is shown to have manifested to a compensable degree within any applicable presumptive period. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right wrist disorder have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing service connection for a lumbar and/or cervical spine disorder, to include residuals, status-post fusion, C3-7 and L4-5, with a history of L4-diagnosis discectomy, have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for establishing service connection for a bilateral foot disorder, to include the toes, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his/her possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in July 2004, March 2005, May 2008, and December 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that complete notice was not issued to the Veteran prior to the adverse determination on appeal. However, fully compliant notice was issued later, and the claim was thereafter readjudicated most recently in an April 2011 supplemental statement of the case (SSOC). Thus, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his/her claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the service treatment and personnel records, as well as all available post-service reports of VA and private treatment and examination, and Social Security Administration determination records. Moreover, her statements in support of the claims are of record, including testimony provided at the June 2009 and March 2013 hearings before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence pertinent to the Veteran's claims. Additionally, the Veteran was afforded VA examinations in August 2008 and November 2010, with addendums issued including in April 2011. The Board finds the examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, and because they describe the claimed disabilities in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At both Board hearings, the VLJ identified the issues, sought information as to the onset of the Veteran's symptoms and the treatment she received in order to determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c) (2) as interpreted in Bryant. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. II. Laws and regulations Service connection means that the facts, shown by evidence, 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Moreover, the provisions of 38 C.F.R. § 3.303(b) apply only to chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). Additionally, the provisions of 38 C.F.R. § 3.303(b) have been determined to apply only to the specifically enumerated chronic diseases under 38 C.F.R. § 3.309(a). Walker, 708 F.3d 1331 (Fed. Cir. 2013)). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). III. Analysis a. Service connection- residuals of right wrist injury and a bilateral foot disorder At her March 2013 hearing, the Veteran essentially testified that she had incurred a right hand and wrist disorder as a result of her military duties as a truck driver. She drove trucks, and at the same time she had to maintain them, which included changing tires and lifting tailgates. She had to climb up and pull heavy items down. In the process of this work, she hurt her wrist one day changing one of the big tires on the truck. (March 2013, Hearing, pp. 17-18). Regarding a bilateral foot disorder, she testified that this was a result of wearing boots in service. Her symptoms included pain, swelling, and ingrown toenails. She explained that eventually her arch dropped and she became flat-footed. (March 2013 hearing, pp. 27). The Veteran noted that she was discharged from service in 1982. She testified that about three to four years later she went to a doctor regarding her hand. (March 2013 hearing, pp. 19). She first sought treatment for her feet after service in 1994. She noted that between 1982 to 1994 she just coped with her symptoms. (March 2013 hearing, pp. 28). As noted previously, service treatment and personnel records have been obtained, covering the Veteran's period of service. Such records do not indicate complaints, treatment, or diagnosis of a right wrist disorder or a bilateral foot disorder. The service treatment records are extensive. They reveal a normal January 1981 enlistment examination. In March 1981 she was treated for an ingrown, left, toenail. In April 1981, during her fifth week of basic training she complained of left arm and shoulder stiffness after carrying a heavy object. There was no swelling, or deformity. A muscle strain was diagnosed. In July 1981 the Veteran reported falling on her right wrist while wrestling with another soldier. She complained of a possible fracture of the right wrist. She was scheduled for a follow up appointment but apparently did not return to the clinic. A February 1982 clinical record notes a report of being assaulted. She was noted to have had a bruised right arm. There are no further complaints, treatment, or diagnosis of any right hand or wrist disorders, or of any foot disorders during service. Post-service, a January 2005 VA record reflects complaints of arch pain and indicated diagnoses of pes planus and an asymptomatic hammertoe. In April 2005 and October 2006, she was treated for painful calluses and fungal nails. In June 2007, she complained of left ankle swelling. Private medical reports reference bilateral carpal tunnel surgery in 2000. An October 2007 x-ray of the right foot showed normal findings. A February 2008 VA record notes a problem list including bilateral carpal tunnel syndrome. An August 2008 fee based VA neurological examination of the upper extremities determined motor function and sensory function to be within normal limits. In a November 2010 VA examination, the examiner reviewed the claims file and medical records. The Veteran reported numbness of her hands since 1987. During the winter her hands were painful and swollen. The examiner noted no documentation of treatment of the wrist joints while in service. The examiner noted the Veteran had undergone surgeries in 1986, 1995, and 2001 for carpal tunnel and trigger finger release. There was no history of trauma or neoplasm of the wrists. The examiner opined that the Veteran's wrist conditions did not relate to her time in service and were not aggravated by service, as there was no evidence of a chronic wrist disorder in the service treatment records. There was also no evidence of any wrist disorder within 12 months of separation. There were no constitutional symptoms or incapacitating episodes of arthritis. The examiner summarized the Veteran's problems as bilateral carpal tunnel syndrome, and trigger fingers. The effect on daily activities was none. There was no significant effect on her usual occupation. A foot examiner found no treatment of the feet while in service. The Veteran reported that the arches of her feet dropped after six months of service. Additionally, her second toes became hammertoes, which she attributed to wearing boots. She worked as a trucker until 1998 and then worked for the Hampton Road Tunnel patrol for 2 years. Finally, she worked for the State ABC store. Her feet have remained stable and she was not currently being treated. She was seen by the VA podiatrist for calluses and hammertoes. There was no history of foot related hospitalization or surgery. There was no history of trauma or neoplasm of the feet. She reported pain, swelling, fatigability, weakness, and lack of endurance of both feet. There were no flare-ups of foot joint disease. She was able to walk 1/4 mile and stand for 15 to 30 minutes. The Veteran used a cane, walker, and wheelchair when ambulating. She did not wear braces, or shoe inserts on examination. The examiner diagnosed right foot with calluses and hammertoes and left foot with hammertoes that likely developed later in life than her 19 months in service. The examiner opined that the Veteran's foot conditions did not relate to her time in service and were not aggravated by service, as there was no evidence of a chronic foot disorders in the service treatment records. There was also no evidence of any foot disorder within 12 months of separation. The examiner further noted no complaints of foot problems, other than an ingrown left toenail in service. On the basis of the foregoing evidence, the Board finds that service connection for a right wrist disability and a bilateral foot disability is not warranted. First, the Board notes that carpal tunnel syndrome and trigger finger of the bilateral wrists was not diagnosed until well after the Veteran's discharge from service. Moreover, calluses and hammertoes of the right foot and hammertoes of the left foot also most likely developed later in life. Neither occurred during the subsequent one-year period following such discharge. Accordingly, an award of service connection on a presumptive basis is not for application here. See 38 C.F.R. §§ 3.307, 3.309. However, the Veteran may still establish service connection by other means. See Combee v. Principi, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Regarding direct service connection on a non-presumptive basis, the record establishes current diagnoses. Moreover, the service treatment records document a fall on the right wrist and an ingrown left toenail. Thus, the first two elements of service connection have been met. The Board has considered the Veteran's lay statements, to the effect that she had fractured her right wrist in service and developed hammertoes, flat feet, and ingrown toenails, as a result of her period of service which conditions continued throughout the time period after discharge from service. However, to the extent that such contentions are intended to establish service connection on the basis of continuity of symptomatology, this avenue to an award is not available here, as there is no showing of any chronic disease under 38 C.F.R. § 3.309(a). See Wal ker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). The Board finds that the only probative evidence of record as to a whether the Veteran's current bilateral wrist conditions or foot conditions are related to military service is the VA examiners' opinions. The examiners explained in detail the rationale for their opinions, grounding such opinions in factual analysis of the objective medical evidence of record. Accordingly, on the basis of the lack of any evidence bringing the weight of evidence into at least equipoise on the question of whether the Veteran's current bilateral wrist disorder and/or bilateral foot disorder is the result of her military service, the Board must deny service connection for a bilateral wrist disorder and bilateral foot disorder at this time. See 38 C.F.R. §§ 3.102, 3.303. b. Service connection for a cervical and lumbar spine disorder to include, residuals, status-post fusion, C3-7 and L4-5, with a history of L4-5 discectomy. The Veteran at her March 2013 hearing essentially testified that she had incurred a back disorder as a result of her military duties as a truck driver. Her duties included changing tires and lifting tailgates. Additionally, there was bouncing while riding in the truck. (March 2013 hearing, pp. 17-19). The Veteran first sought treatment for her back about 4 or 5 years after service. (March 2013 hearing, pp. 21-22). As noted previously, service treatment and personnel records have been obtained, covering the Veteran's period of service. Such records indicate an isolated reference to low back pain in April 1982, with no other complaints, treatment, or diagnosis of a back disorder. Post-service, a January 2004 private x-ray revealed degenerative spondylosis, lumbar spine, and DDD L4-5. The Veteran underwent lumbar surgery in March 2004. VAMC x-rays in August 2004 revealed no significant interval changes in the appearance, and alignment of the lumbar spine, SP posterior fusion. An October 2006 VAMC orthopedic consultation noted the Veteran reported she had back problems in service in 1980 to 1981. She claims to have been diagnosed with back strain at that time. She reported experiencing chronic pain over the years and eventually had two lumbar surgeries. Thus, it was opined that her current chronic back condition was most likely service connected. At an August 2008 fee based VA examination, the Veteran reported having had a back disorder since 1981, describing her symptoms as chronic low back pain associated with stiffness, weakness and parasthesias following an injury to the back in 1981 when she fell while on training maneuvers. The pain radiated to both legs and was aggravated by bending, lifting, and weight bearing activities. Her symptoms had been slowly progressive. The pain may come by itself or can be elicited by physical activity, stress and prolong sitting. The pain was relieved by rest and medication. At times, she experienced severe exacerbations of pain and was limited to bed rest. At other times she could function with medications. Objectively, the Veteran's posture was within normal limits. Gait was abnormal, with limping on the left leg. She required a cane for ambulation because it helped support weight while walking. Thoracolumbar spine examination revealed no evidence of radiating pain on movement. Muscle spasm of lumbar paraspinous muscles was noted. There was tenderness over spinous processes of lumbar vertebrae; negative straight leg raising test on the right; and, positive straight leg raising test on the left. There was no ankylosis of the lumbar spine. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance and normal curvatures of the spine. There intervertebral disc syndrome, sensory deficit, as well as bowel and bladder dysfunction, were noted. There was no lumbosacral motor weakness. The medical records were not available to the examiner, and he could not opine whether the Veteran's current spinal stenosis and degenerative changes were related to her in-service low back complaints for that reason. In a subsequent addendum to the examination the examiner had received and he had reviewed the medical records. He noted that a Tuttle Army Health Clinic at Hunter Army Airfield, GA, record dated in April 1982 was the only reference to back pain while she was in military service, at which time she was pregnant. He noted that he had been asked to opine whether the Veteran's current spinal stenosis and degenerative changes of the lumbar region were related to her in-service low back complaints. He opined that the DDD, DJD, and Spinal Stenosis were less likely than not related to low back pain during pregnancy in 1982 while she was in military service. He reasoned that there was no record of low back trauma in the military service records. Low back pain was recorded during a pregnancy in 1982, but low back pain is a common symptom during pregnancy without DDD, DJD, or spinal stenosis. It is unlikely that back pain during pregnancy would progress to DDD, DJD, and spinal stenosis 20 years later. At a November 2010 VA examination, the claims file and medical records were reviewed. The examiner noted no documentation of treatment of the back and, no history of back related trauma or neoplasm, hospitalization or surgery during service. The Veteran reported that she lost her balance in December 1982 (following separation from service) while walking and fell on her side. She was told by a doctor that she had a small bulging disc. She took pain meds for back spasms and was able to work as a truck driver. She had back surgery in 2000 for disc herniation, in 2005 for fusion for disc bulging. She also had emergency back surgery in July 2009. A spine examination noted normal gait, posture, symmetry, head position, and spinal curvature. The Veteran was diagnosed with SP L4-5 posterior fusion with no evidence of recurring disc herniation; mild disc bulge at L2-3; mild disc bulge at L3-4 with moderate central stenosis and grade I anterolisthesis of L3 on L4. The examiner opined that the Veteran's lumbar spine conditions did not relate to her time in service and had not been aggravated by service, as there was no evidence of any back problems or chronic back disorder in the service treatment records. The examiner noted that the initial back complaint was after separation from service following an accidental fall. On the basis of the foregoing evidence, the Board finds that service connection for a back disability is not warranted. First, the Board notes that neither a lumbar or cervical spine disorder was diagnosed until well after the Veteran's discharge from service, accordingly, an award of service connection on a presumptive basis is not for application here. See 38 C.F.R. §§ 3.307, 3.309. However, the Veteran may still establish service connection by other means. See Combee v. Principi, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Regarding direct service connection on a non-presumptive basis, the record establishes a current diagnosis. The Board has considered the Veteran's lay statements and testimony, to the effect that she had injured her back as a result of the rigors of service including, driving and maintain trucks; climbing up and down on the truck, lifting the tailgate, etc.; and, being assaulted and physically abused by her non-commissioned officers (NCOs) and officers; abused by three lieutenants, pushed around, kicked around, beaten. (June 2009 hearing, pp. 15-16). However, such statements are not found to be credible in this case, as no injuries or diagnosis were reported or made regarding her military duties. In addition, such systematic abuse by her NCOs and officers is not corroborated in the record. There is no evidence of any chronic back condition during service, or for several years after separation from service. Moreover, the Veteran did not raise a claim until 2004, decades after discharge. If she were experiencing continuous back symptoms it would be reasonable to expect that she would have filed a claim much sooner- the absence of an earlier claim suggests that she either was not experiencing chronic spine problems before 2004 or, if she was, she did not attribute them to active service at that time. A gap of time between service and the first post-service manifestations may be considered in evaluating the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, the absence of documented treatment, standing alone, cannot form the basis for rejecting lay testimony of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, the lay evidence is deemed not credible based on factors extending beyond the mere absence of documented treatment. For the above reasons, the Board finds that her testimony that she injured her back in service and experienced continuous symptomatology from that point forward is not credible. Considering the post-service evidence noted above, in conjunction with the absence of any subjective complaints in service it cannot be found that continuity is here demonstrated, either by the clinical or lay evidence of record. Again, the weight of the evidence indicates that the Veteran did not suffer continuous symptomatology, as explained above. The Board finds that the only probative evidence of record as to a whether the Veteran's current lumbar or cervical back conditions is related to military service is the VA examiner's opinion. The examiner explained in detail the rationale for his opinion, grounding such opinions in factual analysis of the objective medical evidence of record. Accordingly, on the basis of the lack of any evidence bringing the weight of evidence into at least equipoise on the question of whether the Veteran's current lumbar or cervical back disorders are the result of her military service, the Board must deny service connection for a lumbar and/or cervical back disorder. See 38 C.F.R. §§ 3.102, 3.303. IV. Summary In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for residuals of bilateral wrist injuries is denied. Service connection for a cervical and lumbar spine disorder to include, residuals, status-post fusion, C3-7 and L4-5, with a history of L4-5 discectomy is denied. Service connection for bilateral foot disabilities to include the toes is denied. REMAND A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). In this case, the evidence reflects that the Veteran's service-connected acquired psychiatric disorder may have worsened since her last VA examination. Indeed, at her March 2013 hearing, she reported an increase in her symptomatology since her last VA examination in July 2011. (March 2013 hearing, pp.11). Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected acquired psychiatric disorder is triggered. Additionally, remand is required regarding the gynecological claim. Indeed, the opinion provided by the November 2010 examiner was inadequate as it consisted of a bare conclusion with no accompanying rationale. An addendum was provided in April 2011, in which the examiner stated the following: "I feel with certainty, that 'gynecological trauma" 28 years ago is not contributing to any of her gyn-urology concerns at this time." However, again there was no specific rationale provided and thus even with the addendum the response remains inadequate. This should be redressed on remand. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should schedule the Veteran for a VA psychiatric examination with a psychiatrist to assess the nature and severity of her psychiatric disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should identify all psychiatric diagnoses present. For each, he or she should indicate whether such diagnosis is encompassed by the service-connected "depressive disorder, NOS." If not, the examiner should state whether it involves the same symptoms or whether there are separate and distinct manifestations (if so, name such manifestations). For any diagnosis not deemed to be encompassed by the service-connected disability that has separate manifestations, the examiner should opine whether it is at least as likely as not related to service or caused by a service-connected disability. If this is answered in the negative, then the examiner should also state whether any current psychiatric disorder not deemed to be encompassed by the service-connected disability has been aggravated (made permanently worse beyond its natural progression) by a service-connected disability. The rationale for all opinions should be provided. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 2. The file should be sent to a gynecologic examiner other than the individual who provided the November 2010 examination and the April 2011 addendum. Following a review of the file, to include consideration of the Veteran's own statements, the examiner should state whether it is at least as likely as not that any current gynecologic disorder is due to the Veteran's active service, to include any sexual assault that may have occurred therein. The examiner must provide a specific rationale in support of his or her conclusions. If the question cannot be answered without resort to speculation, the examiner must explain why it would be speculative to respond. 3. The agency of original jurisdiction should review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, the RO should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs