Citation Nr: 1316862 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 05-12 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the residuals of a chemical burn to the left leg. 2. Entitlement to service connection for the residuals of a broken arm. 3. Entitlement to service connection for an acquired psychiatric disorder, to include, but not limited to, PTSD or a nervous condition. 4. Entitlement to service connection for post-operative left parietal malformation. 5. Entitlement to service connection for the residuals of a left shoulder injury, to include as secondary to a broken arm. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for bilateral pes planus. 8. Entitlement to an initial disability evaluation in excess of 10 percent for the residuals of a left ankle fracture. 9. Entitlement to an initial compensable disability evaluation for the residuals of a fracture of the right fourth finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2003, May 2004, April 2005, May 2005, May 2009, and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the claims of entitlement to service connection currently on appeal, granted service connection for a left ankle disability (and assigning an initial 10 percent disability evaluation effective as of March 5, 2003) and granting service connection for the residuals of a right fourth finger fracture (and assigning an initial 0 percent disability evaluation effective as of March 5, 2003). The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in November 2012. A transcript of this hearing has been prepared and associated with the Veteran's Virtual VA claims file. The Veteran was previously represented by a private attorney. However, VA received written notification from the Veteran's attorney in February 2011 officially withdrawing as the attorney of record. A VA Form 21-22 was signed in January 2012 appointing the Disabled American Veterans (DAV) as the Veteran's representative. As an introductory matter, the Board notes that one of the Veteran's claims has previously been treated as two separate claims - entitlement to service connection for a nervous disorder and entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the Veteran's claims have been recharacterized as one of service connection for any psychiatric disorder, to include PTSD or a nervous disorder. The issue has thus been restated on the title page of this decision. In Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Court extended the holding of Clemons to include disabilities outside of psychiatric disorders. The issues of entitlement to service connection for the residuals of a chemical burn to the left leg, an acquired psychiatric disorder, to include, but not limited to, PTSD and a nervous disorder, entitlement to an initial disability evaluation in excess of 10 percent for the residuals of a left ankle fracture and entitlement to an initial compensable disability evaluation for the residuals of a fracture of the fourth finger 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. The record does not reflect that the Veteran sustained a broken arm during active military service or that he has any current residual related to a previously broken arm. 2. The Veteran's post-operative left parietal malformation did not manifest during, or as a result of, active military service, but rather due to a congenital defect. 3. The Veteran did not incur an injury to the left shoulder during active military service, instead injuring his shoulder in an industrial accident many years after separation from active duty. 4. The Veteran's chronic headaches manifested during active military service. 5. The Veteran's bilateral pes planus preexisted his enlistment into active duty and was not permanently aggravated as a result of active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for the residuals of a broken arm have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for post-operative left parietal malformation have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.9 (2012). 3. The criteria for establishing entitlement to service connection for the residuals of a left shoulder injury have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 4. The criteria for establishing entitlement to service connection for chronic headaches have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 5. The criteria for establishing entitlement to compensation for the aggravation of preexisting bilateral pes planus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This 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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the Veteran's claims of entitlement to service connection, letters sent to the Veteran in March 2003, July 2003, December 2003, July 2004, January 2008 and April 2009 addressed all notice elements listed under 3.159(b)(1). The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. While all of this notice was not provided to the Veteran until after the initial decision of some of his claims, all of the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations for his claims of entitlement to service connection for post-operative left parietal malformation and his bilateral pes planus, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of VA treatment records through September 2012 have also been associated with the Veteran's Virtual VA claims file. Private medical records and Social Security Administration (SSA) records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained, and the Veteran informed VA in May 2009 that he was not seeing any private physicians at this time and that all of his medical treatment was through the VA Medical Center (VAMC) in Beckley. In November 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology as well as the functional impact the claimed disabilities have on his daily life and employment. The Veteran was advised of the reasons for the previous denials and of the type of evidence that could be identified or submitted to further substantiate the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Board recognizes that the Veteran was not afforded a VA examination for his claims of entitlement to service connection for a broken arm and a left shoulder disability. However, the record reflects that the Veteran was not prejudiced by this fact. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, no examination is necessary in order to adjudicate the claims of entitlement to service connection for a broken arm and a left shoulder disability because the McLendon criteria discussed above are not satisfied. Service treatment records reflect no injury to either arm or the left shoulder during military service. Furthermore, there is no evidence of any current residual associated with a broken arm and there is already sufficient evidence of record to demonstrate that the Veteran injured his left shoulder in his occupation many years after his separation from the military. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Claims Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Residuals of a Broken Arm The Veteran contends that he is entitled to service connection for the residuals of a broken arm. Specifically, the Veteran has asserted that he broke one of his arms while playing football. However, as outlined below, there is no credible evidence in support of a broken right or left arm during military service or any current residuals associated with a broken arm. As such, service connection for the residuals of a broken arm is not warranted. An evaluation of the upper extremities was performed as part of the Veteran's August 1973 enlistment examination. This was noted to be normal and there was no history of a broken right or left arm indicated. The Veteran did report a history of bone, joint or other deformity in his report of medical history and the physician's description notes something involving a digit of a hand. However, the writing is largely illegible and the nature and location of this injury is not clear. There was no mention of a prior broken arm. According to a September 1973 record, the Veteran was having musculoskeletal pain related to physical therapy. However, this was not related to any actual diagnosed disability. A September 1974 X-ray report reveals that the Veteran injured his third metacarpal and ring finger of the right hand when playing football the previous day. The Veteran was diagnosed with a fracture to the fourth phalynx. An evaluation of the upper extremities performed as part of the Veteran's August 1975 separation examination was deemed to be normal. The Veteran did report a history of bone, joint or other deformity in his report of medical history associated with this examination and the physician noted that the Veteran suffered a fracture to the fifth metacarpal of the right hand in March 1974 and that his right fifth finger occasionally swelled. There was no mention of a broken arm during service. The Veteran was afforded a general VA examination in September 2003. The Veteran was noted to have had an injury to the right hand while in service that resulted in no present sequella. The record contains no further evidence of a history of a broken arm or any current residuals. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for the residuals of a broken arm. A review of the Veteran's service treatment records reflects no history of a broken arm. Also, according to the Veteran's August 1975 separation examination, an evaluation of the upper extremities was deemed to be normal. The record contains no further evidence of treatment for a broken arm following separation from active duty. The first evidence of a broken arm is the Veteran's claim of March 2003 - some 28 years after separation from active duty. A lack of contemporaneous medical evidence, by itself, does not render lay testimony not credible. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed Cir. 2006). When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the lack of any lay or medical evidence of a previously broken arm for nearly three decades following separation from active duty tends to suggest that the Veteran does not suffer from a chronic disability of either arm related to military service. Furthermore, the record contains no evidence of any current residuals related to a broken arm or any evidence of a prior fracture to either arm. The Board recognizes that the Veteran fractured a finger of the right hand during military service. However, service connection is already in effect for this condition. Furthermore, while there is evidence of a current disability of the left shoulder, this issue will be addressed in a subsequent section of this decision. There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). Without a medical diagnosis of any residuals associated with a broken arm, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board recognizes that the Veteran has reported a history of a broken arm. In his original claim of March 2003, he suggested that he incurred a broken arm in November 1974. The Veteran's service treatment records do reflect that the Veteran injured his right hand in September 1974. However, there was no mention of any injury to either arm at this time. The record also contains multiple records from November 1974 and none of these records note any symptomatology associated with either arm. This seems highly unlikely in light of the Veteran's report that his left arm was in a cast for 6 months during his April 2010 RO hearing. Furthermore, there was no mention of a broken arm upon separation and the Veteran does not have any current residuals of a broken arm. As such, the Veteran's assertion of a broken arm during service lacks credibility. The Veteran also testified in November 2012 that he thought he broke his left arm during service. The Veteran denied seeking any treatment following separation from active duty, although he reported that he still had problems with his left arm and that he was scheduled for surgery. However, upon further questioning, it was clear that the Veteran was referring to symptomatology associated with his left shoulder - an issue that will be separately addressed below. In summary, there is no evidence of a broken arm in service and no evidence of any current residual associated with a previously broken arm. While there is evidence of a broken finger in 1974, service connection is already in effect for this condition. Therefore, there is no credible evidence of a current disability associated with either a broken left arm or right arm during military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for the residuals of a broken arm must be denied. Post-Operative Left Parietal Malformation The Veteran also contends that he is entitled to service connection for his post-operative left parietal malformation. The Veteran has alleged a number of theories as to why this is related to military service, including a head injury and exposure to carbon monoxide. However, as outlined below, the preponderance of the evidence demonstrates that this condition did not manifest during, or as a result of, active military service. Rather, this was a congenital defect that was not aggravated by superimposed disability during active military service. As such, service connection is not warranted. An evaluation of the Veteran's head and neurologic system was deemed to be normal upon enlistment in August 1973. The Veteran also denied having, or ever having had, frequent or severe headaches or a head injury in his report of medical history associated with this examination. A July 1974 record reflects that the Veteran was seen for a headache. Tylenol was prescribed at this time and no specific diagnosis was provided. In September 1974, the Veteran was treated for complains of chronic headaches. He was diagnosed with a tension headache. He was seen again approximately one week later for a headache in September 1974. According to a subsequent September 1974 record, the Veteran injured his right hand playing football. The record notes that witnesses stated he was "knocked out" for about 20 seconds. However, the Veteran had no trouble with vision and there were no complaints other than the hand and jaw. The Veteran was subsequently seen with complaints of headaches in October 1974. An evaluation of the Veteran's head performed as part of his August 1975 separation examination was deemed to be normal, and the Veteran denied a history of head injuries in his report of medical history associated with this examination. The examining physician did note occasional headaches, but there was no mention of any brain or cognitive abnormality at this time. According to a September 2002 record, the Veteran was suffering from new onset of generalized convulsive seizures. This was originally believed to be secondary to drug toxicity, alcoholism and tobacco use. A subsequent computerized tomography (CT) scan suggested the possibility of left parietal arteriovenous malformation (AVM). Another record dated September 2002 reflects that the Veteran had his first seizure the previous night. The Veteran confirmed that this was the first time in his life that he had such an episode. It was noted that the Veteran was a heavy smoker, a heavy drinker and that he used recreational drugs, herbs, things that he bought in the street and Lortab given to him by a physician. An October 2002 record from Duke University reflects that the Veteran was suffering from a left parietal AVM. The Veteran was noted to have a history of severe headaches with new onset of seizures in September 2002. The Veteran's significant medical history was noted to be a left ankle surgery in 1998 and a right knee surgery in 2002. His history was otherwise negative. The Veteran was a three pack per week smoker times 30 years with a positive history of marijuana use. Surgery was performed in October 2002 and the Veteran was subsequently discharged. The Veteran was afforded a general VA examination in September 2003. The Veteran was noted to have undergone a surgical repair for A-V malformation in 2002. The Veteran had not worked since 2002 as a result of this. He was diagnosed with A-V malformation with seizure disorder and surgical repair in 2002 of A-V malformation in the brain. This resulted in residuals such as decreased memory, halting speech and difficulty with thought process. The Veteran was afforded a VA examination in March 2004. The examiner reviewed the Veteran's medical history, including his seizures and headaches from 2002. The seizures were described as small and focal in nature. Subsequent studies revealed an A-V malformation and the Veteran underwent a surgical procedure to correct this problem in 2003. It was also noted that headaches were first documented in 1975 and that they were ongoing and still persistent since his surgery. The Veteran was diagnosed with a seizure disorder, status post A-V malformation repair, chronic headaches and aphasia related to A-V malformation. In December 2005, it was noted that the Veteran had been to an emergency room with complaints of blacking out with right sided weakness and pain. An addendum to the above examination report was provided in April 2004 so that an opinion as to etiology could be provided. The examiner noted that a review of the claims file revealed headaches during service in 1974. However, there was no subsequent report of headaches in the file. Then, in 2002, the Veteran sought medical treatment because of seizures and was diagnosed to have A-V malformation of the parietal area 3 centimeters (cm) in size. Surgery was performed and he was now recuperating from the effects of this operation. The examiner concluded that the Veteran's A-V malformation and consequent residuals were not as likely as not related to military service. The examiner explained that most A-V malformations arise from congenital abnormalities of the arterial wall at points were two or more major intracranial arteries conjoin. Most A-V malformations gradually increased in size, characteristically producing their symptoms in persons over the age of 30 years. The examiner concluded that the Veteran's condition was very likely a congenital malformation and it displayed the classic features of this condition. The examiner also indicated that she found out that there was no relationship between carbon monoxide exposure and A-V malformation. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for the post-operative residuals of his A-V malfunction. As explained by the April 2004 VA examiner, most A-V malformations arise from congenital abnormalities. 38 C.F.R. § 3.303(c) automatically excludes certain disorders from service connection, such as congenital or developmental defects. These are not "diseases or injuries" within the meaning of applicable legislation. As such, service connection cannot be granted for this disorder. An exception exists if there is evidence of additional disability due to aggravation during service of the congenital disease, but not defect, by superimposed disease or injury. See VAOOGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. However, there is nothing of record to suggest that any additional disability arose because of a superimposed disease or injury. While some witnesses did report that the Veteran lost consciousness for some 20 seconds after a football injury, examination at the time of the injury was negative. The record reflects that the Veteran was already experiencing headaches prior to the date of this injury and no other associated symptoms are noted in the service records. It was not until 2002 that the Veteran had what was admittedly his first seizure. This is some 27 years after the Veteran's separation from active duty. Therefore, the preponderance of the evidence of record fails to suggest that the Veteran suffers any additional disability due to the aggravation of his congenital abnormality during service. Also, while the Veteran has expressed an opinion that his condition might be related to reported exposure to carbon monoxide during military service, the record contains no evidence of any acute symptoms of exposure or evidence to suggest that the Veteran has the requisite expertise to offer such a complex medical opinion. The April 2004 VA examiner, however, explained that she found no relationship between carbon monoxide exposure and A-V malformation. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for post-operative left parietal malformation must be denied. Residuals of a Left Shoulder Injury The Veteran also contends that he is entitled to service connection for the residuals of a left shoulder injury. The Veteran has suggested that he injured his left shoulder during service and that his current left shoulder disability is secondary to a broken arm. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran did not incur an injury to the left shoulder during military service and that his current disability is related to an injury sustained many years after his separation from active duty. As such, service connection for a left shoulder injury is not warranted. An evaluation of the left shoulder performed as part of the Veteran's August 1973 enlistment examination was deemed to be normal. The Veteran also denied a history of a painful or "trick" shoulder in his report of medical history associated with this examination. According to a September 1973 record, the Veteran was having musculoskeletal pain related to physical therapy. However, this was not related to any actual diagnosed disability. An evaluation of the upper extremities performed as part of the Veteran's August 1975 separation examination was deemed to be normal and the Veteran denied a history of painful or "trick" shoulder in his report of medical history associated with this examination. The Veteran indicated in his September 2003 SSA Function Report that his left shoulder pain began in 2000. A July 2000 record from the Appalachian Orthopedic Associates confirms that the Veteran began having problems with his left shoulder while working transferring from one hangar to another with his arm in an outstretched swinging position. He indicated that he previously did this without difficulty but he suddenly had discomfort with pain in his shoulder that had continued since. It was noted that this was a new problem. Surgery was performed in August 2000 for an approximately two centimeter complete tear in the anterior rotator cuff. A March 2001 record notes that the Veteran's left shoulder was continuing to bother him and further evaluation would be needed to determine whether the Veteran had a new tear of the left shoulder. The Veteran was seen for a surgical follow-up in June 2002. It was noted that the wound was healing very nicely and that the shoulder was doing reasonably well. A magnetic resonance image (MRI) taken in April 2002 reflected findings consistent with a patient who had prior rotator cuff surgery. An April 2003 record reflects that the Veteran's left shoulder may have begun to fray at the edge of the repair again. A June 2003 record reflects that the left shoulder looked good on X-ray with the exception of some questionable irregularity along the bicipital groove. These X-rays were reviewed as part of a March 2004 VA brain and spinal cord examination, and noted to reveal the medial articular surface of the left humerus to be irregular and eroded. The Veteran was diagnosed with left shoulder weakness related to an injury (probably a rotator cuff injury) and subsequent repair. The record contains a private medical evaluation dated September 2003. The Veteran reported left shoulder pain. The Veteran reported that his left shoulder would give out and catch. He got tingling into the left hand. The Veteran reported that he just woke up this way about 2 months ago with a pulling sensation. He then had pain that persisted. A March 2004 record notes that the Veteran was continuing to have left shoulder problems since an industrial accident several years ago. The Veteran was afforded a general VA examination in September 2003. The Veteran was diagnosed with a remote injury of the left shoulder with torn rotator cuff with surgery. The examiner indicated that this occurred after service. A March 2004 treatment record prepared by a private physician with the initials W.M. also indicates that the Veteran was continuing to have problems with his left shoulder after an industrial accident several years earlier. A July 2006 VA outpatient treatment record notes that the Veteran had pain in his left shoulder. His medication was noted to not be effective in treating this pain. The Veteran again noted left shoulder pain during treatment in July 2008. He described at as a sensation of pulling or pinching. According to an April 2009 VA treatment record, the Veteran was experiencing left shoulder pain with weakness in the left arm and stiffness. The Veteran reported that his shoulder movement was decreased by any activity. Examination confirmed restricted motion. The Veteran was diagnosed with left shoulder pain status post left rotator cuff surgery. A CT scan of the left shoulder revealed no direct evidence of a rotator cuff tear. There were degenerative changes of the left humeral head including a small piece of shrapnel. Another April 2009 VA problem list notes a history of shoulder pain noted in July 2003. Finally, a May 2011 VA treatment record reflects that the Veteran had a thin vertical tear of some of the fibers of the supraspinatus. An MRI was performed revealing additional degeneration and tendinosis. However, there was no suggestion that the Veteran suffered from any disability of the left shoulder related to military service. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a left shoulder disorder. The Veteran's service treatment records do not reflect that he sustained an injury to his left shoulder during military service. An evaluation of the upper extremities was also deemed to be normal at the time of separation and the Veteran denied a history of a painful or "trick" shoulder in his report of medical history associated with this examination. As such, there is no evidence of a left shoulder injury or any associated symptomatology during active military service. The first post-service evidence of a left shoulder disability is a July 2000 private medical record. This record clearly reflects that this condition was of new onset and that the Veteran was able to use his shoulder without difficulty prior to this injury. The September 2003 VA examiner also indicated that he Veteran suffered from a remote injury with torn rotator cuff with surgery that occurred after service, and a private physician from March 2004 noted that the Veteran was continuing to have problems with his left shoulder after an industrial accident several years earlier. Therefore, the evidence of record reflects that the Veteran injured his left shoulder on the job some 25 years after separation from active duty. As such, the preponderance of the evidence of record is against a claim of entitlement to service connection. The Board recognizes that the Veteran testified in November 2012 that he injured his left shoulder playing football in 1974. While this is certainly something the Veteran is competent to testify about, the Board does not find this assertion to be credible. Initially, a review of the records surrounding the Veteran's football injury of 1974 only reflects symptoms associated with the hand and the jaw. There is no mention of left shoulder symptomatology and the Veteran denied a history of a painful shoulder upon separation in 1975. The Veteran also informed SSA that his left shoulder disability first manifested in 2000. Finally, in his original claim of March 2003, the Veteran indicated that his left shoulder disability first began in August 2000. These statements are wholly consistent with the evidence of record suggesting that the Veteran incurred an industrial accident in July 2000. Therefore, the more recent assertions of an in-service injury to the left shoulder or arm is contradicted by the medical evidence of record and the Veteran's own statement in March 2003, and as such, is not credible. Finally, the Veteran alleged during his April 2010 Decision Review Officer (DRO) hearing that he believed his current left shoulder disability is secondary to a broken left arm he incurred in service. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). However, as discussed in a previous section, service connection for the residuals of a broken arm is not warranted as there is no evidence of a broken arm during service or any current residuals of a broken arm. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a left shoulder disability, to include as secondary to a broken arm, must be denied. Headaches The Veteran also contends that he is entitled to service connection for headaches. Having reviewed all of the evidence of record, the Board finds that the evidence is at least in equipoise and service connection for headaches is warranted. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An evaluation of the Veteran's head was deemed normal during his August 1973 enlistment examination, and the Veteran denied a history of frequent or severe headaches in his report of medical history associated with this examination. A July 1974 record reflects that the Veteran was seen for a headache. Tylenol was prescribed at this time and no specific diagnosis was provided. In September 1974, the Veteran was treated for complaints of chronic headaches. He was diagnosed with tension headaches. He was seen again approximately one week later for a headache in September 1974. According to a September 1974 record dated 6 days later, the Veteran injured his right hand playing football. The record notes that witnesses stated he was "knocked out" for about 20 seconds. However, the Veteran had no trouble with vision and there were no complaints other than the hand and jaw. The Veteran was subsequently seen with complaints of headaches in October 1974. An evaluation of the Veteran's head performed as part of his August 1975 separation examination was deemed to be normal, and the Veteran denied a history of head injuries in his report of medical history associated with this examination. However, the examining physician did note occasional headaches and the Veteran reported a history of severe or frequent headaches. The record also contains a September 2002 neurosurgery consultation note. It was noted that while the Veteran presented with a new onset of generalized seizures, he had a history of severe headaches. The extent of this history, however, is not indicated. According to a March 2004 VA brain and spinal cord examination, headaches were first documented in the claims file in 1975. The Veteran reported that these headaches were ongoing and that they continued to the present. The examiner diagnosed the Veteran with chronic headaches, although no opinion as to etiology was provided. The evidence of record demonstrates that the Veteran was seen on numerous occasions with complaints of headaches during military service and that he was diagnosed with tension headaches during service. Occasional headaches were also noted in the Veteran's separation examination and he reported a history of frequent or severe headaches at this time. While there is no evidence of further treatment for headaches following separation from active duty, a September 2002 neurosurgery consultation note does reflect a prior history of headaches. The Veteran also indicated in his March 2003 claim that his headaches first manifested in September 1974. The Veteran has also testified on multiple occasions to headaches since service. The frequency and history of headaches is something the Veteran is uniquely suited to describe. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Therefore, since there is evidence of an in-service diagnosis and a current diagnosis, and there is nothing of record to call into question the credibility of the Veteran's report of chronic symptomatology, service connection for headaches is warranted. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for headaches is warranted. See 38 U.S.C. § 5107(b). This claim of entitlement to service connection for headaches is granted. Bilateral Pes Planus The Veteran also contends that he is entitled to service connection for bilateral pes planus. However, as outlined below, the evidence of record demonstrates that this condition preexisted military service. The preponderance of the evidence of record further demonstrates that this preexisting disability was not aggravated as a result of active military service. As such, the claim must be denied. An evaluation of the Veteran's feet was deemed to be normal during his August 1973 enlistment examination. However, it was specifically noted at the time of enlistment that the Veteran suffered from pes planus. An evaluation of the feet performed as part of the Veteran's August 1975 separation examination was deemed to be normal and the Veteran denied a history of foot trouble in his report of medical history associated with this examination. There is no evidence of treatment for pes planus during service. The Veteran's ankles were X-rayed in February 2008. This revealed advanced pes planus with an almost complete loss of the longitudinal arch of the foot. This is the first post-service evidence of pes planus. According to an April 2009 VA record from the Veteran's primary care physician, he had severe flat feet. This resulted in biomechanical pain in the feet, ankles, knees, hips and back. The Veteran was afforded a VA examination of the feet in May 2009. The Veteran reported having bilateral flat feet for his whole life. The Veteran denied any actual injury to the feet, bilaterally. X-rays of the feet revealed minimal degenerative changes and a diagnosis of mild pes planus, bilaterally, was assigned. The examiner opined that this condition was not caused by or related to military service. In reviewing the medical literature, the examiner found no evidence to support a cause and effect relationship between bilateral flat foot and military service. The examiner noted that this was a familial and developmental disorder and it had no relationship with the Veteran's military service. The Veteran was also afforded a VA examination of the left ankle in November 2010. It was noted that bilateral flat feet was found incidentally upon examination. No opinion or further discussion was provided. The above evidence demonstrates that service connection for pes planus is not warranted. For purposes of basic entitlement to service-connection, 38 U.S.C.A. § 1111 provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. In the present case, the Veteran's August 1973 enlistment examination clearly notes a preexisting condition of pes planus. As such, the presumption of soundness does not apply in this case. For service connection claims involving a preexisting injury or disease, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. If a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). 38 U.S.C.A. § 1153 requires some increase in the severity of the preexisting condition causally related to military service. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service. 38 C.F.R. § 4.22. In the present case, there is no evidence of record to suggest that the Veteran's pes planus increased in severity as a result of his active military service. The record reflects no in-service treatment for flat feet and the condition was not noted as part of his August 1975 separation examination. The Veteran also denied a history of foot trouble in his report of medical history associated with this examination, suggesting that he did not suffer from symptomatology while in service. Finally, the May 2009 VA examiner explained that there was no relationship between the Veteran's pes planus and military service. Therefore, the preponderance of the evidence of record reflects that the Veteran's pes planus did not increase in severity during military service, and as such, aggravation may not be conceded. The Board recognizes that the May 2009 VA examiner did not specifically offer a medical opinion as to whether the Veteran's preexisting pes planus was aggravated as a result of military service, instead noting that there was no relationship between the Veteran's pes planus and military service. The Board finds that the Veteran was not prejudiced as a result of this fact due to the complete lack of evidence of treatment for pes planus during military service and the Veteran's explicit denial of foot trouble upon separation. Again, aggravation will not be conceded when the evidence reflects no increase in severity during military service. See 38 C.F.R. § 3.306(b). Finally, the Board notes that the Veteran testified in November 2012 that he sought treatment for pes planus as soon as he got out of military service. The Board does not find this assertion to be credible. Again, the Veteran explicitly denied a history of foot trouble upon separation from active duty in August 1975. Therefore, it seems unlikely that the Veteran would have immediately sought treatment. The record also contains no further evidence of treatment for pes planus until this condition was noted upon X-ray in 2008. VA treatment records were requested from the Beckley VAMC in April 2003. However, VA was notified that there were no progress notes for this Veteran. The Veteran also informed VA in May 2004 that he had been receiving treatment at the VAMC in Beckley since 2000. As such, the evidence of record contradicts the Veteran's assertion of treatment with the VAMC in Beckley shortly after service for bilateral pes planus. As such, there is no credible evidence of record to suggest that the Veteran's bilateral pes planus increased in severity as a result of military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for bilateral pes planus must be denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for the residuals of a broken arm is denied. Service connection for post-operative left parietal malformation is denied. Service connection for a left shoulder injury, to include as secondary to a broken arm, is denied. Service connection for headaches is granted. Service connection for bilateral pes planus is denied. REMAND Residuals of a Concrete Burn to the Left Leg The Veteran contends that he is entitled to service connection for the residuals of a concrete burn to the left lower extremity. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's August 1973 enlistment examination does not reflect a preexisting skin condition, aside from a scar on the right arm. The Veteran also denied a history of skin diseases in his report of medical history associated with this examination. A September 1973 in-service treatment record does reflect a healed burn area of the left leg. According to a December 1973 record, the Veteran suffered a third degree burn to the leg in July 1973 and he had experienced pain since that time. In January 1974, it was noted that the Veteran sustained a burn to the left leg with quick drying concrete prior to entry into active duty some 6 months earlier. The Veteran reported continued pain. He was diagnosed with healed scar areas on the left lower leg. An April 1975 record notes an old burn to both lower legs. The scar on the medial aspect of the left lower leg was now cracking and painful. This was again noted to be due to concrete burns incurred approximately one year earlier. An evaluation of the Veteran's skin performed as part of his August 1975 separation examination, however, was deemed to be normal. The Veteran also denied suffering from any diseases of the skin in his report of medical history associated with this examination. The Veteran was afforded a VA examination of the skin in March 2004. The Veteran reported ongoing itchiness since sustaining a chemical burn to the lower leg. The examiner only diagnosed chronic dermatitis of the right leg secondary to chemical exposure. This issue was denied by the RO in January 2011 and was not appealed to the Board. However, a September 2003 VA examination report does note eczema on the proximal portion of the left ankle. This was noted to be related to old chemical burns. The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Having reviewed the above evidence, the Board finds that this claim must be remanded for an additional VA examination before appellate review may proceed. The Veteran's service treatment records reflect that he suffered a concrete burn to the left lower extremity prior to his enlistment into active duty in August 1973. Veterans are considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. 1111. In this case, no specific skin disability of either lower extremity was noted on the Veteran's enlistment examination; and as such, the presumption of soundness applies. However, numerous treatment records clearly reflect that the Veteran injured his left lower extremity in July 1973 - prior to his enlistment into active duty. As such; the Board finds that the presumption has been rebutted by clear and unmistakable evidence. VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2002; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). For service connection claims involving a preexisting injury or disease, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Service treatment records do reflect a worsening of the Veteran's symptomatology during military service, as the skin later began to crack and become painful. However, it is not clear whether this represents a permanent aggravation of the Veteran's disability above and beyond the natural progression. Therefore, since there is clear and unmistakable evidence of a preexisting injury to the skin of the lower extremities, the examiner should opine as to whether there is clear and unmistakable evidence to suggest that this disability was not permanently aggravated as a result of military service. Psychiatric Disorder The Veteran also contends that he is entitled to service connection for a psychiatric disorder. Regrettably, further evidentiary development is necessary before appellate review may proceed on this claim as well. A psychiatric evaluation performed as part of the Veteran's August 1973 enlistment examination was deemed to be normal, and the Veteran denied a history of depression or nervous trouble in his report of medical history associated with this examination. A September 1974 record reflects that the Veteran was complaining of nervousness. A neurological evaluation was deemed to be within normal limits. In October 1974, it was recommended that the Veteran undergo a psychiatric evaluation for a Chapter 13 discharge. The record does not reflect whether such an evaluation was performed. A psychiatric evaluation performed as part of the Veteran's August 1975 separation examination was deemed to be normal. However, the Veteran did endorse a history of depression or excessive worry in his report of medical history associated with this examination and the examining physician noted a history of occasional depression. According to a November 2002 record, the Veteran was noted to be suffering from drug toxicity, alcoholism and tobacco use. It was noted that the Veteran used all types of drugs. A November 2002 private speech therapy record also indicates that the Veteran was becoming frustrated with his condition and that he was exhibiting much anxiety. A July 2003 mental health consultation note reflects that the Veteran was referred from his primary care physician for a positive depression screen. The Veteran described difficulties with his speech since his brain surgery. He also noted previous shoulder surgeries and right knee surgeries. He said his relationship with his wife had not been as good as it was since he was not able to do much and he would get irritated and frustrated because of his communication problem. He reported that this was very frustrating and would make him depressed. The Veteran also reported being on pain medications, drinking at least a 6 pack of beer per night and doing "some cocaine on occasions." The Veteran was diagnosed with a depressive disorder not otherwise specified, an adjustment reaction secondary to situational factors and polysubstance abuse. The Veteran underwent a private psychological evaluation in November 2003. The Veteran reported memory problems, anxiety and speech problems at this time. The Veteran indicated that he had had these problems for approximately two years and he attributed them to the onset of mini-seizures. It was noted that the Veteran served two years in the Army but he denied any psychological problems during this time. Memory testing was normal but the Veteran's concentration was moderately deficient. The Veteran was diagnosed with a cognitive disorder, an anxiety disorder and a communication disorder. A November 2003 VA outpatient treatment record notes a diagnosis of depressive disorder secondary to his medical condition. A March 2004 record also noted a diagnosis of depressed disorder, probably secondary to medical condition, as well as an adjustment reaction secondary to situational factors. The Veteran underwent a private psychological evaluation in January 2004. The Veteran reported that while he was in the Army he was overcome by carbon monoxide in an episode that killed two fellow soldiers. He later reported more carbon monoxide exposure while employed by the railroad because he was often on a train that was trapped in a tunnel. The Veteran believed that his later development of a seizure disorder was due to this exposure. The Veteran was diagnosed with a cognitive disorder, not otherwise specified, that was mild to moderate in severity. He was also diagnosed with alcohol dependence. The psychologist concluded that the Veteran had a history suggestive of some interaction problems with others and substance abuse issues. He was now drinking on a daily basis and was dependent upon alcohol. It was determined that the combination of his limitations associated with substance abuse and his cognitive disorder limited his capacity to function in almost any occupation. The Veteran was seen by VA's substance abuse clinic in January 2005. The Veteran reported that he had separated from his wife of 30 years for approximately 3 years and during this time he experienced major depression. They recently reconciled, but the Veteran had a major seizure resulting in aphasia. The Veteran reported that he presently drank a 12 pack of beer every other day. An April 2005 VA outpatient treatment record reflects that the Veteran was undergoing ongoing treatment for depression. The Veteran was diagnosed with major depressive disorder with psychotic features, substance abuse and aphasia. In December 2005, the Veteran was seen for mental health treatment with VA. Upon examination, it was determined that the Veteran suffered from major depressive disorder with psychotic features, substance abuse and aphasia. The Veteran was also evaluated in February 2006 and a PTSD screening score was deemed to be negative. The previously noted diagnoses of major depressive disorder with psychotic features, substance abuse and aphasia were confirmed in March 2006. The Veteran was seen by the VA substance abuse clinic in March 2006. The Veteran complained of significant issues with ongoing treatment for substance abuse. The Veteran was noted to be depressed with judgment and insight that appeared to be intact. The Veteran reported that he believed he was addicted to pain medications. Diagnoses of major depressive disorder with psychotic features, substance abuse and aphasia were assigned. An October 2006 VA record notes that the Veteran should taper off the medication Lortab since it would not again be prescribed due to him testing negative for illegal drugs for a second time. A June 2007 record notes that the illegal drug was cocaine. A March 2008 VA mental health note reflects that the Veteran reported that he last used "crack" one week earlier. The Veteran reported that he did not know when he started using and he did not provide details on the frequency of use. The Veteran then reported that he used cocaine to cope with physical pain and he suggested that he used the substance once or twice per month. The Veteran also described relationship problems, noting that when he got "high" his wife would say things she should not. The examiner diagnosed the Veteran with substance abuse and adjustment disorder. In April 2009, the Veteran was seen by VA on an outpatient basis. It was noted that the Veteran underwent a PTSD screening that was negative. The Veteran denied having any experience that was so frightening, horrible or upsetting that it resulted in nightmares, an effort to not think about the experience or avoid situations that reminded him of the experience, him being constantly on guard, watchful or easily startled or that left him feeling numb or detached from others, activities or his surroundings. A prior PTSD screening performed in December 2007 was also deemed to be negative. In light of the above evidence, the Board finds that the Veteran must be afforded a VA examination before appellate review may proceed on this matter. There is evidence of depression during military service. There is also evidence of numerous diagnoses since military service, including depression, substance abuse, an adjustment disorder, anxiety and a cognitive disorder. However, many of these records appear to relate the Veteran's problems to post-service factors. The Veteran has also claimed PTSD, although the record does not presently have a confirmed diagnosis of this condition. Finally, in light of the Veteran's testimony and the presence of in-service symptomatology, there is at least evidence suggesting that the Veteran "may" suffer from a psychiatric disability related to military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the RO/AMC must first make all reasonable attempts to verify the Veteran's alleged in-service stressors of a serviceman shooting at people in Camp Ames (reported during his November 2012 hearing) and of a helicopter crash occurring at Camp Ames (reported during his April 2010 DRO hearing) before scheduling an examination. He also reported that while he was in Korea a number of people died as a result of carbon monoxide poisoning. While the regulations pertaining to PTSD have been amended to no longer require the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity," a review of the Veteran's service records fail to reflect that he served in such a location, and as such, the amended regulations are not applicable in this case. See 38 C.F.R. §3.304(f)(3). Therefore, establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). Once all attempts have been made to verify the Veteran's alleged in-service stressor, he should be scheduled for a VA psychiatric examination to determine whether he suffers from any psychiatric disability due to military service. The examiner should indicate all psychiatric diagnoses associated with the Veteran and opine as to whether it is at least as likely as not that any diagnosed psychiatric disability (other than PTSD) manifested during, or as a result of, active military service. In reaching this conclusion, the examiner should consider the in-service evidence of depression. If PTSD is diagnosed, the examiner should opine as to whether it is at least as likely as not a result of a confirmed in-service stressor (assuming that any reported stressor is in fact verified). Residuals of a Left Ankle Fracture The Veteran also contends that he is entitled to an initial disability evaluation in excess of 10 percent for a left ankle disability. Regrettably, a remand is necessary on this issue as well. The Veteran was most recently afforded a VA examination of the left ankle in September 2012. However, a review of the Veteran's physical claims file and his Virtual VA electronic file fails to reflect that a supplemental statement of the case (SSOC) was prepared following this examination. The record does not reflect that the Veteran waived review of this evidence in the first instance by the Agency of Original Jurisdiction (AOJ). VA regulations prohibit the Board from considering additional pertinent evidence without first remanding the case to the agency of original jurisdiction for initial consideration or obtaining the Veteran's waiver. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). While the Board acknowledges that it has reviewed the September 2012 examination report, it has done so solely for the purpose of remanding the Veteran's claims, which is not prejudicial to the Veteran. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Accordingly to ensure that VA has met its duty to assist and to ensure full compliance with due process requirements, the Board finds that on remand the Veteran's left ankle claim should be reviewed with consideration of all evidence received since the last RO adjudication. Residuals of a Right Fourth Finger Fracture Finally, the Veteran contends that he is entitled to an initial compensable disability evaluation for the residuals of a right fourth finger fracture. Regrettably, further evidentiary development is necessary before appellate review may proceed on this issue as well. The Veteran was last afforded a VA examination in November 2010 to determine the current level of severity of his residuals of a right fourth finger fracture. It was noted that the Veteran was right hand dominant. The Veteran denied a decrease to dexterity or strength of the right hand. He also denied flare-ups. Examination revealed no tenderness to the right hand area as well as the right fourth finger. There was no evidence of ankylosis and the Veteran had flexion of the metacarpophalangeal joints from 0 to 90 degrees, flexion of the proximal interphalangeal joints from 0 degrees to 110 degrees and distal interphalangeal joint flexion from 0 degrees to 70 degrees. The Veteran had good bilateral hand grip strength and there was no gap between the tips of the thumb and the finger, the tips of the fingers and the proximal transverse crease of the palm or between the thumb pad and the fingers with the thumb attempting to oppose the other fingers. X-rays of the right hand revealed minimal degenerative changes for the distal interphalangeal joint of the fourth finger and a radiopaque foreign body in the soft tissue of the third finger. The examiner concluded that the Veteran had a healed fracture of the fourth finger of the right hand with minimal degenerative changes. Other than X-ray findings, there was no functional impairment associated with this condition and no clinical evidence for his fracture of the right hand fourth finger. Therefore, this condition had no impact for this condition to both of his physical and sedentary employment. However, during his November 2012 hearing, the Veteran testified that his finger had become worse since the above examination and that it was now less mobile. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). As such, the Veteran should be afforded the opportunity to appear for a current VA examination to determine the current level of severity of his service-connected right fourth finger fracture. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to verify the Veteran's reported in-service stressors. The Veteran should be contacted and asked to provide additional information regarding his claimed stressors experienced during his time in service. The Veteran should be instructed to be as specific as possible and he should be advised that if he is not specific in describing his stressors, verification from official sources may not be possible. The Veteran should also be informed of alternate types of evidence, such as lay statements, that could be used to support his claim. 2. The Veteran should be afforded an appropriate VA examination in order to determine whether there is clear and unmistakable evidence that his preexisting concrete burn to the left lower extremity was not permanently aggravated as a result of active duty. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should offer an opinion on the following: Based on a review of the record, to include the service treatment records, is there clear and unmistakable evidence that a preexisting disability of the left lower extremity did not undergo an increase in the underlying pathology during service, i.e., was aggravated during service? If there was an increase in severity of the Veteran's left lower extremity skin condition during service, was that increase due to the natural progress of the disease, or was it above and beyond the natural progression? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his disability, as well as the continuity of symptomatology. All opinions expressed should be accompanied by supporting rationale. 3. Regardless of whether verification of the Veteran's in-service stressors is possible, he must be scheduled for a VA psychiatric examination before an appropriate specialist to determine what, if any, psychiatric disability he suffers from, to include depression, anxiety, PTSD or any other disorder. The Veteran's claims file and a copy of this remand must be provided to the examiner for review. All indicated tests and studies, including psychological testing, should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis(es). The examiner should address the following: (a) What is the appropriate diagnosis(es) associated with the Veteran's psychiatric symptomatology? (b) If PTSD is diagnosed, can the Veteran's PTSD be related to any verified in-service stressor (assuming that any stressor has in fact been verified). (c) If the Veteran is found to have a psychiatric disorder(s) other than PTSD, the examiner should opine as to whether it is at least as likely as not that this disorder(s) manifested during, or as a result of, active military service. A complete rationale for all opinions expressed must be provided. The examiner should also discuss the lay statements provided by the Veteran in support of his claim, as well as the in-service evidence of depression. 4. The Veteran should also be scheduled for a VA examination before an appropriate specialist(s) to determine the current level of severity of his service-connected fracture of the right fourth finger. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with this condition, including limitation of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right fourth finger. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 5. Readjudicate the Veteran's claims, to include his claim of entitlement to an initial disability evaluation in excess of 10 percent for a left ankle disorder. If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case (SSOC) that notifies him of all applicable rating criteria with respect to his claims. An appropriate amount of time should be afforded to the Veteran before returning his case to the Board. 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). ______________________________________________ J. W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs