Citation Nr: 1317665	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  00-04 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for a back disorder. 

2. Entitlement to an increased disability rating for planter fasciitis of the right foot, currently rated as 20 percent disabling. 

3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1983 to January 1984 and from February 1985 to August 1987. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, in October 1999 and June 2005.  The Board remanded the service connection claim for a back disorder in October 2004, and denied this claim in a September 2005 decision.  However, in a November 2006 Order, the Court of Appeals for Veterans Claims (Court) endorsed an October 2006 joint motion for remand, vacated the September 2005 Board decision denying the claim, and remanded the claim for compliance with the instructions in the joint motion.  The Board remanded this claim and the other claims on appeal in March 2007 and September 2010 for additional development.  They now return for appellate review. 

The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in May 2004.  A transcript of the hearing is of record. 

In a November 2005 letter, the RO acknowledged receipt of a claim for service connection for a left foot disorder.  Review of the claims folder does not reveal that any further action was taken on this claim.  Moreover, in a statement received by the Board in March 2013, the Veteran stated that he "never had a chance to put in a claim for [his] neck."  The Board construes this statement as a claim for a neck disorder.  The service connection claims for a left foot disorder and a neck disorder have been raised by the record, but have not been adjudicated by the RO as Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

A service connection claim for a right knee disorder was also on appeal before the Board and remanded for further development in January 2010.  Service connection for osteoarthritis of the right knee has since been granted in a July 2011 rating decision.  The Veteran has not appealed the evaluation or effective date of service connection assigned for this disability.  Therefore, the service connection claim for a right knee disorder is no longer before the Board.  Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The preponderance of the evidence shows that a back injury did not occur during active military service, that a back disorder did not manifest during active service or within one year of discharge, and that the Veteran's current back disorders are not otherwise related to an injury, disease, or event during active service. 

2. The preponderance of the evidence shows that the Veteran's scoliosis of the spine existed prior to active service as it was noted at entry, did not undergo an increase during active service, and was not otherwise aggravated by a disease, injury, or event during active service. 

3. The Veteran's plantar fasciitis of the right foot is manifested by pain on palpation and with weight-bearing, with no abnormalities shown by x-ray studies, and is not more than moderately severe in nature. 

4. The Veteran's service-connected right foot and right knee disabilities are not sufficiently incapacitating as to prevent him from obtaining and maintaining substantially gainful employment in a sedentary capacity.


CONCLUSIONS OF LAW

1. A back disorder was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012).

2. The criteria for a rating higher than 20 percent for plantar fasciitis of the right foot have not been met at any point during the pendency of this claim.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012).  

3. The criteria for entitlement to TDIU have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

The Board must assess the credibility and weight of all 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.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

With regard to the Veteran's service connection claim for a back disorder, the Court has held that a claim of entitlement to service connection consists of five elements: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  Notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

Here, a March 2001 letter informed the Veteran of the elements that must be satisfied to establish basic entitlement to service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records on his behalf.  Although this letter was not sent prior to the initial rating decision in this matter, which was issued prior to enactment of the VCAA, the delay was harmless as the Veteran had ample opportunity to respond with additional information and evidence before his claim was readjudicated in a June 2002 Supplemental Statement of the Case (SSOC) and subsequent SSOC's.  See Mayfield, 499 F.3d at 1323.  Further, an April 2010 letter notified the Veteran of all five elements of service connection, including the degree of disability and the effective date, and was followed by readjudication of this claim in SSOC's dated in July 2011 and September 2012.  See id.  Therefore, the duty to notify has been satisfied with respect to this claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. 

With regard to the Veteran's increased rating claim for his service-connected right foot plantar fasciitis, the Court has held that in order to satisfy the first notice element in an increased rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vazquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vazquez-Flores II).  Further, the claimant must be notified that a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Id.  Except when VCAA notice as to how to substantiate an increased-rating claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided.  See Vazquez-Flores, 24 Vet. App. at 106-07.  

During the pendency of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103(a) need not be "veteran specific," and that VA is not required to notify the Veteran of the rating criteria applicable to the disability at issue or to inform him that he may submit evidence of the effect of his disability on daily life.  See Vazquez-Flores/Wilson, 580 F.3d at 1280-81.

Here, prior to the initial rating decision in this matter, a January 2005 letter notified the Veteran that he must provide evidence showing a worsening of his right foot disability, gave examples of the types of evidence he could submit in support of his claim, and informed him of his and VA's respective responsibilities for obtaining relevant records on his behalf.  Further, letters dated in December 2008, February 2009, and April 2010 provided fully compliant VCAA notice, including the general criteria by which VA evaluates disabilities, and the specific rating criteria potentially applicable to the Veteran's claim, although, as noted above, such specific notice is no longer required.  See id.  These letters were followed by readjudication of this claim in SSOC's dated in March 2009, July 2011, and September 2012, thus rendering the delay in timing harmless.  See Mayfield, 499 F.3d at 1323.  Thus, the duty to notify has been satisfied with respect to this claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, 16 Vet. App. at 187; Vazquez-Flores, 24 Vet. App. at 97-103. 

Finally, with regard to the issue of entitlement to TDIU, the Veteran was notified of the requirements for establishing entitlement to TDIU in the January 2005 notice letter, which was sent prior to the initial rating decision in this matter.  The letter also informed the Veteran of his and VA's respective responsibilities for obtaining relevant records on his behalf.  Accordingly, the duty to notify has been satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, 16 Vet. App. at 187

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records, VA medical records, and Social Security Administration (SSA) records are in the file.  Private medical records identified by the Veteran have been obtained to the extent possible.  There are no private treatment records identified by the Veteran that remain outstanding.  The Appeals Management Center (AMC) also requested the Veteran's VA treatment records from the San Diego VA Medical Center (VAMC), and received a response that the San Diego VAMC did not have any records for the Veteran.  Moreover, the Veteran has never claimed that he received treatment at the San Diego VAMC for a back disorder prior to 1991.  Rather, in a statement received in June 2009, he asserted that in 1986 he "went directly to San Diego V.A. to register [sic]" and reported his alleged in-service back injury at the time.  As discussed in more detail below, a September 1987 claim submitted to the San Diego RO is of record, but does not mention a back injury.  Rather, the Veteran only claimed right foot and right knee disabilities, and these claims were adjudicated by the San Diego RO in an October 1987 rating decision.  Thus, further efforts to obtain VA treatment records from the San Diego VAMC would be futile and therefore are unwarranted.  See 38 C.F.R. § 3.159(c)(2) (holding that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those would be futile; cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or that the custodian does not have them). 

Although the Veteran argues that there are missing service treatment records pertaining to his back disability, there is no other indication that such records are missing.  The service treatment records associated with his Marine Corps service from February 1985 to August 1987, the period in which the Veteran alleges he injured his back in 1985 or 1986 (as variously stated by the Veteran) otherwise appear to be complete.  According to a March 2005 report of contact form (VA Form 119), the RO contacted the Balboa Naval Hospital and this facility responded that it did not have any records for the Veteran, and that such records would have been part of his service treatment records or sent to the National Personnel Records Center (NPRC).  

Most importantly, for the reasons discussed below, the Veteran's allegation that he injured his back during his Marine Corps service, let alone that he was hospitalized for such an injury, is patently not credible.  The Veteran has stated that he knows there are service treatment records missing because he was familiar with them and they also documented treatment for a "bump" on the back of his head and for his right foot problems.  However, service treatment records in the file do show that the Veteran elected surgical removal of a cyst at the back of his head in January 1987, and amply document treatment for his foot disorder, which indicates that the records referred to by the Veteran are not missing.  Moreover, a letter that the Veteran wrote to his grandmother at the time is of record and reflects that he was receiving treatment for his foot problems and the cyst or bump on the back of his head, and yet makes no mention of any back problems, which is in keeping with the service treatment records themselves.  This letter, the service treatment records in the file which are negative for back problems but reflect other orthopedic conditions, and subsequent medical records dating from 1991 to 2000 uniformly attributing the Veteran's back problems to his 1991 work-related injury in a civilian job, mutually reinforce and corroborate one another, and constitute probative evidence that there are no missing service treatment records pertaining to the Veteran's back.  Thus, further efforts to obtain allegedly outstanding service treatment records, including clinical records of hospitalization, pertaining to his back that almost certainly do not exist are unwarranted.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  Accordingly, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the veteran's disability and such is relevant to the claim (as in increased rating claims), a new VA examination must be conducted.   See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

Here, with regard to the Veteran's service connection claim for a back disorder, a VA spine examination was performed in April 2011.  The VA examination report is adequate for the purpose of deciding this claim.  In this regard, the examiner reviewed the claims file and medical history, conducted an examination of the Veteran and recorded the clinical findings, and provided a clear explanation for the opinion stated which is consistent with the examiner's findings and the credible evidence of record.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  

There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not articulated a specific challenge to its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Although he requested a new examination in a July 2011 statement, he referenced a finding in a June 2008 VA examination report that his spine pathology was due to the aging process.  Thus, it appears the Veteran was challenging the adequacy of that examination rather than the April 2011 VA examination, which corrects for any deficiencies in the prior VA examination report.  Moreover, if the Veteran was in fact referring to the April 2011 VA examination, his general contention that the examiner did not consider his statements is not sufficient to find the examination report inadequate, as it discusses in detail the pertinent medical history, which is well documented by the evidence of record, and provides detailed explanations for the examiner's conclusions which are consistent with the credible evidence of record.  There is no evidence in the file, including statements submitted by the Veteran and by witnesses on his behalf, that was overlooked by the examiner.  Rather, the examiner's opinions are entirely consistent with all credible evidence of record, and indeed took into account the alleged in-service injury as well as the notation of scoliosis at entry into active service.  

With regard to the evaluation of the Veteran's right foot disability, VA examinations were performed in January 2005 and June 2008.  The VA examination reports are adequate for rating purposes, as the examiners reviewed the claims file, examined the Veteran, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim.  See Stefl, 21 Vet. App. at 123 (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green, 1 Vet. App. at 124).  

The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his right foot disorder since he was last examined by VA.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995).  Accordingly, further examination is not warranted.  

Finally, although a VA opinion was not obtained as to whether the Veteran's service-connected disabilities of the right knee and right foot are alone sufficiently disabling as to prevent him from engaging in substantially gainful activity, the credible and competent evidence of record amply documents the Veteran's disabilities and weighs against such a finding.  Rather, it shows that the Veteran's back disorder, for which service connection has not been established, is the principal source of his inability to work.  There is no competent evidence suggesting that the Veteran's right foot and right knee disabilities alone are so disabling as to prevent him from performing any sedentary work consistent with his educational and vocational background.  It is also notable that the Veteran's service-connected disabilities do not meet the schedular criteria for TDIU consideration, as explained below.  Moreover, the VA examination reports discuss the functional impairment associated with the Veteran's service-connected disabilities, and do not indicate that such functional impairment is severe enough to produce unemployability as defined for TDIU purposes.  Thus, further examination or opinion on this issue is not warranted. 

Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  

II. Procedural Due Process

A. Compliance With the Board's Remand Directives 

As noted above, the Board remanded these claims in March 2007 and September 2010 for further development.  In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand).  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Here, the Board's remand directives to make appropriate efforts to obtain all identified outstanding private treatment records and VA treatment records, to provide VA examinations with regard to the Veteran's back and right foot claims, and then to readjudicate the claims on appeal have been satisfied, as discussed above with regard to VA's duties to notify and assist under the VCAA.  Therefore, there has been substantial compliance with all of the Board's remand directives.  See id.

B. Compliance with Bryant

The Veteran testified at a May 2004 Board hearing before the undersigned with regard to his service connection claim for a back disorder.  Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2).  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim).  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.  

Importantly, the Court observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c).  See id. at 498.  Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless.  Id.  Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit.  

Here, the outstanding issue is whether the Veteran's current back disorder is related to a disease, injury, or event during active service.  Although the undersigned did not explicitly identify this issue for the Veteran, the Veteran presented relevant testimony as to the alleged in-service back injury and his contention that his current back disorder was caused by that injury.

Any deficiencies in the May 2004 Board hearing under section 3.103(c)(2) were not prejudicial.  Specifically, VA has otherwise developed this claim, including obtaining numerous private treatment records on the Veteran's behalf, SSA records, and VA treatment records, and providing a VA examination which addresses the outstanding issue of whether the Veteran's back disorder is related to the alleged in-service injury, as discussed above with regard to VA's duty to assist under the VCAA.  Moreover, the Veteran has submitted positive nexus opinions from private treating physicians, statements by family members and friends on his behalf attesting to his in-service back injury, letters written to his grandparents during active service, and many written statements setting forth his contentions.  The Veteran did not raise any new issues pertaining to his claim at the hearing, and there is no indication of any outstanding evidence that may have been overlooked which would support his claim.  See id. at 499.  Indeed, in a November 2011 VCAA notice response, the Veteran indicated that he had no additional information or evidence to submit, and that he wished to have his claim decided as soon as possible. 

Thus, given the development undertaken by VA with respect to this claim and the extensive evidence submitted by the Veteran and obtained on his behalf, and in light of his testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled.  Id. at 498-99.  Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2).  See id.; see also Sanders, 556 U.S. at 407, 410.

III. Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show 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."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)).  Id. at 1336-37, 1340. 

Because the Veteran has been diagnosed with degenerative disc disease of the lumbar spine, and osteoarthritis is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

The Veteran's degenerative disc disease of the lumbar spine is also eligible for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for osteoarthritis may be established on a presumptive basis by showing that the disease 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

According to a June 1999 statement by the Veteran and his testimony at the May 2004 Board hearing as well as in other statements submitted by him, the Veteran injured his back during active service while serving in the Marine Corps in late 1985 or early 1986 at Camp Pendleton, California.  He and another service member were lifting trunks onto a truck in preparation for a training exercise when the injury occurred.  The other service member dropped his end of the trunk they were carrying, which "snapped" the Veteran's back.  The Veteran stated that he went to the local infirmary and was observed for several hours.  After a day or two he was transferred to a larger facility, Balboa Naval Hospital, where x-rays were taken.  However, according to his testimony at the hearing, he does not remember whether the x-rays revealed any pathology at the time.  According to his June 1999 statement, the Veteran was provided with pain medication and placed on "light duty" status for several days.  After he returned to full duty status, he continued to have back problems and sought treatment for his back several times at "sick bay" over the next few months.  The Veteran stated that he continued to experience back pain since leaving active service. 

In his May 2004 hearing testimony, the Veteran stated that he sought treatment for his back pain within one year of active service from a chiropractor in Vista, California.  However, when asked if he remembered the chiropractor's name, he replied in the negative and has not identified treatment records dated prior to 1991 despite several opportunities to do so.  He further stated at the hearing that he has received medical treatment for his back regularly since 1990.  

The Veteran is competent to describe the alleged injury to his back during service and is also competent to relate the history of symptoms and treatment for back pain he has provided, as summarized above.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lay person is competent to testify as to factual matters of which he has first-hand knowledge through observation or experience).  

The competency of evidence differs, however, from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In this case, the Board finds that the Veteran's alleged history of an in-service back injury is not credible.  In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  

The Court has observed that silence in the service treatment records can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony.  Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring).  In order to infer from this silence that a claimed disability did not manifest during active service, the Board must find that the service treatment records are complete "in relevant part," and that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred."  Id. (citing Fed. R. Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded)).  The Court noted that in making this determination, the Board may be required to consider the limits of its own competence on medical issues.  Id.; see also See Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert).  For example, in Kahana, the Court held that the Board could not make an independent determination that an injury to the anterior cruciate ligament (ACL) would have been documented in the service treatment records without supporting medical evidence.  See id. at 434 (majority opinion).  

Here, the service treatment records are complete "in relevant part" and, in conjunction with subsequent private treatment records and other contemporaneous evidence, contradict the Veteran's lay statements.  Specifically, the service treatment records are complete insofar as they pertain to the Veteran's Marine Corps service at Camp Pendleton from February 1985 to August 1987, during which time he allegedly injured his back in 1985 or 1986.  They include, in pertinent part, his November 1984 enlistment examination, the July 1987 Physical Evaluation Board report finding that the Veteran was unfit for active service due to right foot plantar fasciitis, and a number of service treatment records dated in 1985, 1986, and 1987 documenting treatment for various medical complaints, including orthopedic conditions of the right foot and right knee, among other medical issues.  In an undated statement received by the Board in June 2009, the Veteran stated that he knows there are missing service treatment records because he had read them during service and they reflected treatment "mostly" for his back but also for a "bump" on the back of his head.  In fact, the service treatment records in the file include a January 1987 entry reflecting that the Veteran was to undergo elective surgical removal of a cyst at the back of his head.  In other words, even this condition is documented in the service treatment records, which only further confirms that the service treatment records are complete "in relevant part," as the Veteran suggested that he knew there were missing records because they would have also reflected treatment for a "bump" at the back of his head, which in fact they do.  Thus, apart from the Veteran's own unsupported assertion, the service treatment records appear to be complete. 

The service treatment records pertaining to the Veteran's Marine Corps service are entirely silent for back problems other than scoliosis noted at entry.  Specifically, the November 1984 enlistment examination report shows that the Veteran's spine was found to be abnormal on clinical evaluation, and that he was noted to have a scoliosis.  Apart from this notation, there is no mention of scoliosis or any other back problems in these records.  Numerous service treatment records dating from 1985 to 1987 show that the Veteran was treated for orthopedic problems pertaining to his right knee and right foot in 1986 and 1987, but do not once mention a back injury or back symptoms.  Notably, a June 1987 Medical Board report reflects a primary diagnosis of plantar fasciitis of the right foot, and does not reflect any additional diagnoses contributing to the Veteran's being unfit for active service.  

It is within the Board's competence to find it implausible that the Veteran would have injured his back during service in 1985 or 1986, been put on light duty, have x-rays of the spine taken, and continue to report to the infirmary for back problems, as he alleges, and yet none of this medical history would be mentioned in the treatment records or Medical Evaluation Board report, notwithstanding their documentation of other orthopedic issues and medical complaints. 

Contemporaneous evidence of record further conflicts with the Veteran's assertion that he injured his back during service, and supports the Board's inference from the service treatment records that this allegation is not credible.  Specifically, the Veteran submitted a letter he wrote to his grandmother during active service in which he stated that he was scheduled to have a "bump" on the back of his head removed (which is confirmed by the January 1987 service treatment record), and that he "might be getting out of the Marine Corps for [his feet]."  He did not mention any back problems or a history of a back injury.

In the June 2009 statement, the Veteran stated that after separation from active service, he registered with VA in San Diego and "told them of all my injuries and tried to file for my back injury and told [VA] about falling of the 5-ton truck [sic]."  The Veteran's initial application for VA service connection benefits in September 1987, which was submitted to and adjudicated by the San Diego RO in an October 1987 rating decision, is of record.  The application form reflects service connection claims for residuals of a right foot fracture in January 1987, and right knee bursitis with an onset date of March 1985.  There is no mention of a back injury or disability.  Thus, there is an early application for VA benefits in 1987 filed with the San Diego RO, as the Veteran states, but it was not for a back disability.  It beggars belief that the Veteran would not have mentioned a back disability at this time if he in fact had been experiencing ongoing back symptoms since active service, let alone that he intended to submit a claim for a back disability shortly after service in 1987 when he submitted claims for other orthopedic disorders.  

Significantly, in an October 1991 statement submitted to VA, the Veteran explained his failure to report to a routine examination to evaluate his service-connected right foot disorder by stating that he had "recently injured [his] back (herniation of [his] lumbar disk)" and that he had another medical appointment, presumably to treat his back injury, on the same day as the examination.  He did not mention an earlier history of back problems or a back injury during active service in this statement. 

The most probative and credible evidence shows that the Veteran first injured his back in July 1991.  Specifically, a July 1991 private treatment record reflects that the Veteran was helping to build a home and injured his back while lifting a wall.  He felt something "give way" and developed pain down the right lower extremity.  He continued to work for a couple of hours but started having more and more pain.  He saw a private physician and was diagnosed with radiculopathy.  An x-ray study showed an "irritated type of scoliosis."  Another July 1991 private treatment record reflects a diagnosis of "work related low back pain with lumbar radiculopathy, most likely secondary to a herniated disc."  Likewise, an August 1991 private treatment record reflects that an MRI showed an L4-5 focal disc herniation which was consistent with his "clinical picture."  Furthermore, a March 1992 letter written by the Veteran's private treating physician states that the Veteran had a small herniated disc on the right at L4-5 which was related to a work injury in June 1991.  In short, the contemporaneous private treatment records show that the Veteran's herniated disc at L4-5 was caused by a June 1991 injury, and that he did not have a prior history of back problems or back injury.

Subsequent private treatment records only confirm that the Veteran initially injured his back in 1991 when lifting a wall.  An August 1992 letter from the Veteran's private physician states that the Veteran had joined the Marine Corps and then worked for a short time "without any difficulty" doing manual labor.  He later went to work in construction in March 1991 and "had no problem at all" until approximately June 1991, when he attempted to lift a wall that had been nailed down during a construction job and felt his back "go."  A March 1998 private evaluation report for an SSA disability determination likewise reflects that the Veteran reported an initial injury to his back in 1991.  As the Veteran's reported history was provided in support of a claim for SSA benefits, entitlement to which would certainly not be negatively affected by reporting an earlier onset date, he had no reason to misrepresent the initial onset of his back problems at this time.  Thus, his SSA records constitute highly probative evidence that his back disorder was not present prior to 1991. 

The private treatment records further show that the Veteran again injured his back in July 1998 in a motor vehicle accident (MVA).  An October 2000 private treatment record states that the Veteran had experienced back problems since the July 1998 MVA.  

It was not until May 1999, after both the June 1991 and July 1998 back injuries occurred, as well as an April 1997 back injury referred to in a June 1998 private treatment record, that the Veteran initially filed a service connection claim for a back disability, stating that he had injured his back during active service and had experienced back problems ever since that time.

In sum, in light of the private treatment records discussed above showing that the Veteran did not injure his back until June 1991 in his civilian job, the Board infers from the silence in the Veteran's otherwise complete service treatment records that he did not sustain a back injury or have back problems during this time.  See Kahana, 24 Vet. App. at 440.  Moreover, as noted above, the service treatment records are not merely silent, but reflect treatment for a number of medical conditions, including orthopedic issues related to the knee and foot, and yet are negative for any back problems (apart from the one-time mention of scoliosis in the enlistment examination, which will be addressed below), thereby rendering it implausible that the Veteran injured his back during service.  

The service treatment records, the letter from the Veteran to his grandmother written during active service, the September 1987 claim for service connection benefits for foot and knee disabilities but not for a back disability, and, most significantly, the post-service treatment records discussed above, carry more weight than the Veteran's more recent statements made in support of a claim for VA benefits, and are patently inconsistent with such statements.  In this regard, the Court has held that contemporaneous evidence has greater probative value than history as reported by the claimant.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  Moreover, the private treatment records are especially credible and reliable, as they were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment.  In White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992), the United States Supreme Court held that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment.  LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (observing that many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision).

Because the more probative and reliable contemporaneous records uniformly conflict with the Veteran's lay statements, and show that he did not injure his back or have back problems until the June 1991 post-service injury in his civilian job, the Board finds that his allegation of injuring his back during service is not credible.  See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Madden, 125 F.3d at 1480 (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect.").  

Further weighing against the credibility of the Veteran's alleged in-service injury is the inconsistency in his account of it.  He related in the June 1999 statement and in his testimony at the May 2004 Board hearing that he hurt his back while lifting a trunk, but later stated in the June 2009 statement that he injured his back when falling off of a truck.  This inconsistency casts further doubt on the credibility of the Veteran's allegation.  See id.

Because the Veteran's allegation of injuring his back during service is not credible, it is not entitled to any weight.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

The Board has considered lay statements submitted on the Veteran's behalf by his mother, brother, friends, and other witnesses.  Some of these statements assert that the Veteran had related injuring his back during the time of his active service.  However, they lack credibility for the same reasons that the Veteran's own statements lack credibility, as they directly conflict with much more probative and reliable evidence in the form of the contemporaneous treatment records.  The understandable bias of some of these witnesses in favor of supporting the Veteran's claim further weighs against their credibility, in conjunction with the other factors.  Buchanan, 451 F.3d at 1336 (observing that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  

There are more recent private and VA treatment records, such as a March 2003 private treatment record and June 2004 VA treatment record, that also reference an in-service back injury.  However, these records do not cite to any evidence other than the Veteran's own reported history in stating that he injured his back in service.  Notably, all of these records were generated after the Veteran's May 1999 service connection claim for a back disability, when the Veteran had an incentive to misrepresent the history of his back problems in support of his claim.  Indeed, they do not even mention the Veteran's post-service back injuries.  Conversely, there are no treatment records dated before the Veteran's May 1999 claim that mention an in-service back injury.  The fact that the Veteran's reported history of injuring his back in service is contained in a medical record does not by itself lend it more credibility or probative value.  A bare transcription of lay history reported by the Veteran, unenhanced by additional comment by the transcriber, does not become competent or credible medical evidence simply because the transcriber is a medical professional.  See LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  Accordingly, the treatment records post-dating the Veteran's May 1999 claim do not constitute credible evidence of an in-service back injury merely because they reference the Veteran's reported history of such an injury, which itself is not credible, for the reasons discussed above.  

This claim was remanded by the Court pursuant to the October 2006 joint motion instructing the Board to consider the Veteran's statements asserting a continuity of symptoms after service.  The Board has considered his statements asserting a continuity of symptoms and, for the reasons discussed above, finds that they are not credible.  The credible and probative evidence of record in the form of contemporaneous treatment records weighs against a finding either of a chronicity of back problems during active service or a continuity of symptoms following active service.  See 38 C.F.R. § 3.303(b).  Rather, the preponderance of the competent and credible evidence shows that the Veteran's current back problems did not begin until the June 1991 post-service injury in his civilian job.  Consequently, service connection for the Veteran's back disorder cannot be awarded on the basis of a chronicity in service or a continuity of symptoms thereafter under 38 C.F.R. §  3.303(b) for chronic disabilities.  

Service connection may still be granted if all the evidence of record shows that the Veteran's back disability is related to active service.  See 38 C.F.R. §§ 3.303(d).  However, such a relationship must be established by a medical nexus.  See 38 C.F.R. § 3.303(a); Walker, 708 F.3d at 1338-1339.  

Here, the preponderance of the competent and credible evidence weighs against a relationship to service.  In this regard, the Board has considered the private medical opinions submitted by the Veteran in support of a relationship to service.  A May 2004 letter from W. Dukes, M.D., states that he had only treated the Veteran once in May 2004, and that the Veteran reported the in-service back injury (as described above) at this time.  The Veteran stated that he had never fully recovered.  Dr. Dukes stated that he had "no reason to doubt [the Veteran's] recollection of events."  Further, a July 2005 private treatment record authored by Dr. Dukes states that the Veteran believed that his degenerative disc disease of the lumbar spine dated back to the Marine Corps when he injured his back.  Doctor Dukes opined that there was "a causative relationship between the onset of [the Veteran's] [d]iscogenic back pain that he currently has to the time he had originally [sic]."  The doctor further stated that he did not "think that the other injuries have worsened [the Veteran's] condition."  

The statements by Dr. Duke in the May 2004 letter and July 2005 private treatment record do not constitute credible or probative evidence of a relationship between the Veteran's current back disability and his period of service, as they are based solely on the Veteran's lay statements asserting an in-service back injury, which the Board has found not to be credible.  A physician's opinion based on an inaccurate factual premise has no probative value.  Reonal v. Brown, 5 Vet. App. 458 (1993).  Moreover, they are not supported by any explanation, and do not account for the probative evidence showing that the Veteran's back problems did not have their onset until after the June 1991 injury.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions; the Court further held that the probative value of an opinion is diminished when it does not consider pertinent evidence of record).  Accordingly, Dr. Dukes' opinions are not assigned any weight.

A September 2011 opinion by an M. Bernt, M.D., states that the Veteran had been under his care for back pain for over twenty years and that the pain dated back to the Veteran's "injury in 1985 while in the marines."  He further stated that he had reviewed notes from VA and orthopedic doctors and found that it was more likely than not that the Veteran's pain related to the "original injury in 1985 that resulted in a 24 hour hospital stay."  He noted that "back injuries such as this often lead to long term back problems."  He also stated that the VA records supported this opinion.

The September 2011 opinion by Dr. Bernt has no probative value, and thus is not entitled to any weight, as it is based on the incorrect factual premise that the Veteran injured his back during active service, which the Board finds is not credible.  See Reonal, 5 Vet. App. 458.  The fact that Dr. Bernt treated the Veteran for over twenty years does not necessarily support an earlier history of back problems, which had their initial onset following the June 1991 post-service injury, which was over twenty years earlier.  The doctor did not otherwise explain how the evidence of record, including the VA treatment records to which he alluded, supported his opinion.  See Nieves-Rodriguez, 22 Vet. App. at 304.  Accordingly, this opinion is not entitled to any weight.  

In the April 2011 VA examination report, the VA examiner provided opinions finding against a relationship to service after examining the Veteran and reviewing the claims file and pertinent medical evidence.  With regard to a lumbosacral strain, the examiner stated that such strains are common, transient injuries that normally affect individuals who are lifting heavy objects or twisting in an unusual manner.  She stated that they are normally self-limiting and do not result in long-term chronic conditions.  Thus, the examiner concluded that any current lumbosacral strain and spasms were less likely as not caused by or a result of an in-service injury to the lumbar spine.  

With regard to scoliosis, the examiner stated that scoliosis is a lateral curvature of the spine, and that pain the lower back associated with irritated-type scoliosis is the result of an imbalance to the muscles and/or compression of the nerves between vertebrae.  The examiner noted that the most recent lumbar spine film dated April 2011 showed a minimal levoconvex scoliosis centered at L3-4.  The examiner further observed that the Veteran was noted to have scoliosis at entrance into military service, but that there was no follow-up regarding this notation and it was possible that it was idiopathic.  The examiner stated that the irritated-type scoliosis documented in July 1991 was following a lifting injury and not related to or caused by the Veteran's military service.  

Finally, the examiner opined that the Veteran's degenerative disc disease of the spine was less likely as not related to active service, to include the alleged in-service injury, which the examiner noted would be "speculative," and more likely related to the injuries in 1991 and 1998, as well as falling on the ice in 2003 (as documented in an April 2003 private treatment record).  

The April 2011 VA examiner's opinion constitutes probative evidence weighing against a relationship between the Veteran's current back disorders and his period of active service, as it was based on a thorough review of the Veteran's medical history, is consistent with the credible evidence of record, and is supported by an explanation.  Moreover, as discussed above, the Veteran's allegation that he injured his back during active service is not credible.  

Even assuming, for the sake of argument, that the Veteran had sustained an acute injury or strain to the back during service, whether his current pathology of the back may be related to such an injury is "speculative," as noted by the April 2011 VA examiner.  In order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility."  38 C.F.R. § 3.102; see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence that does little more than suggest a possibility that the Veteran's illnesses might have been caused by in-service radiation exposure is insufficient to establish service connection).  The VA examiner found that the Veteran's post-service injuries in 1991, 1998, and 2003 would have likely been the cause of the Veteran's multilevel degenerative changes of the lumbar spine.  This more definitive opinion, supported by much more probative evidence in the form of the post-service treatment records-including the March 1992 letter by the Veteran's private treating physician relating the Veteran's herniated disc at L4-5 to the work injury in June 1991-outweighs the mere possibility that the Veteran also had an injury in service to which his current back disorder(s) may be related, especially as such an injury was apparently not severe enough to be noted in the service treatment records or mentioned by the Veteran to his grandmother in the letter he wrote during that time, or mentioned in any of the post-service private treatment records, including those pertaining to back problems, until after his May 1999 claim for benefits.  

In any event, as the Board finds it not credible that the Veteran injured his back in service, further exploration of whether any current pathology of the thoracolumbar spine may be related to the alleged in-service injury as opposed to at least two significant post-service injuries in 1991 and 1998, is not warranted. 

With regard to the scoliosis noted in the Veteran's November 1984 enlistment examination, the evidence shows that this is a pre-existing condition not entitled to service connection.  In this regard, 38 C.F.R. §  U.S.C.A. § 1111 provides that "a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service."  See also 38 C.F.R. § 3.304(b).  Under 38 U.S.C.A. § 1153, "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."  In other words, there is a presumption of aggravation when disability from a pre-existing injury or disease increases during service, which can only be rebutted by clear and unmistakable (obvious or manifest) evidence.  See id.; see also 38 C.F.R. § 3.306(b).  However, 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). 

In this case, the Veteran's scoliosis was clearly noted at entry into active service, as a present clinical finding of scoliosis is documented in the November 1984 enlistment examination report.  Moreover, the presumption of aggravation does not apply, as there was no further mention of scoliosis or back problems in the service treatment records, either with respect to an injury or with respect to any symptoms, and the post-service treatment records dated prior to the Veteran's May 1999 claim for benefits uniformly attribute the Veteran's back disorders, including irritated-type scoliosis, to his 1991 and 1998 injuries as a civilian.  See id.  The fact that the Veteran's current back problems were not diagnosed, treated, or mentioned until after the June 1991 civilian injury to his back, and attributed by the April 2011 VA examiner and the Veteran's private treating providers (at least prior to his 1999 claim for benefits) to his post-service injuries, weighs against a finding of aggravation of his scoliosis during active service.  Significantly, the April 2011 VA examiner distinguished between the Veteran's scoliosis noted at entry, and "irritated-type scoliosis," explaining that the former is a lateral curvature of the spine, while the latter is the result of an imbalance to the muscles and/or compression of the nerves between vertebrae, and was more likely due to the June 1991 civilian injury and less likely related to active service.  In other words, she indicated that the irritated-type scoliosis diagnosed in 1991 was not related to the scoliosis noted at entry as these were distinct conditions.  This opinion by a medical opinion constitutes probative evidence weighing against an increase of pre-existing scoliosis during active service.  There is no opinion by a medical professional of record finding that the Veteran's scoliosis, as opposed to other pathologies of the spine, was related to active service.  Accordingly, because the Veteran's scoliosis pre-existed active service and was not aggravated during that time, it is not entitled to service connection.  See id.  

The Board also notes that to the extent that a lateral curvature of the spine may be considered a congenital structural defect, service connection may not be established as a matter of law for this condition unless it was subject to a superimposed disease or injury.  See 38 C.F.R. §§ 3.303(c), 4.9 (2012); VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).  There is no credible evidence of any superimposed disease or injury of the back during active service, as explained above.  Moreover, whether or not the Veteran's pre-existing scoliosis constitutes a congenital defect (a medical determination which the Board may not make of its own accord under Colvin v. Derwinski, Vet. App. 171, 175 (1991)), service connection may not be granted in either instance as it pre-existed and was not aggravated by active service, as explained above. 

The Board has considered the Veteran's general contention that he has a current back disability related to active service.  However, this contention is based solely on his allegation that he sustained a back injuring during service, which is not credible.  Thus, his contention is not entitled to any weight, as it is founded on an alleged factual predicate which the Board finds is not true.  Moreover, the Board accords more weight to the opinion of the VA examiner than to the Veteran's lay statements, as the VA examiner is a medical professional who reviewed the medical history and examined the Veteran, and the explanations she provided in support of a finding against a relationship to service are consistent with the credible evidence of record.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno, 6 Vet. App. at 469. 

In short, the preponderance of the evidence weighs against a relationship between the Veteran's back disability and a disease, injury, or event during service.  Thus, the nexus element is not satisfied and service connection may not be established on a direct basis.  Shedden, 381 F.3d at 1166-67.  

Because the preponderance of the credible evidence shows that the Veteran's degenerative disc disease of the lumbar spine did not manifest within one year of separation from active service, but rather that it was caused by his 1991 and 1998 post-service injuries, service connection on a presumptive basis may not be established.  See 38 C.F.R. §§ 3.307, 3.309.  

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a back disorder must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

IV. Increased Rating

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2012).  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  The schedule recognizes that disability from distinct injuries or diseases may overlap.  See 38 C.F.R. § 4.14 (2012).  However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided.  Id.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

There is no diagnostic code directly applicable to plantar fasciitis.  The Veteran's right plantar fasciitis has been rated by analogy (as indicated by the designation 5299-5284), under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 which pertains to "other injuries of the foot."  See 38 C.F.R. §§ 4.20, 4.27.  Under DC 5284, a 10 percent rating is assigned for moderate injuries of the foot; a 20 percent rating is assigned for moderately severe injuries of the foot; and a 30 percent rating is assigned for severe injuries of the foot.  See 38 C.F.R. § 4.71a.  

At the January 2005 VA examination, the Veteran reported pain, weakness, and stiffness of the right foot.  He stated that prolonged standing, walking, and picking up heavy bags all cause pain in his right foot.  On physical examination, the Veteran's right foot was found by the examiner to be "completely normal."  There was no claw foot deformity, and he had a high arch.  There was tenderness at the calcaneum, the head of the metatarsal bones, and at the solar aspect of the calcaneal region.  The muscle power and movement of the toes were all normal.  The pulses and sensations were intact.  On range of motion exercises, dorsiflexion was to 20 degrees with pain at 20 degrees, and plantar flexion was to 30 degrees with pain at 30 degrees.  The Veteran could not walk on his toes or heels due to pain.  The examiner diagnosed the Veteran with plantar fasciitis of the right foot.  An x-ray study performed at this time revealed a normal right foot.  The joints and soft tissue were normal, and no fractures or destructive lesions were seen.  

An August 2005 private treatment record reflects that the Veteran reported foot pain which was present mainly in the heel.  He had not been treated by podiatry.  

At the June 2008 VA examination, the Veteran reported difficulty standing for more than 30 minutes.  He was able to walk about a quarter of a mile "without too much difficulty."  Repetitive motion increased the pain.  He did not use any shoe inserts or braces, and did not endorse any flare-ups.  He walked with a limp and used a cane.  On examination, the right foot had a cavus deformity but was otherwise normal.  There were no calluses, and no edema or swelling of the plantar fascia.  There was mild tenderness over the heel pad, but the plantar fascia were not tender.  There was no pain on manipulation of the foot.  Plantar flexion of the ankle was to 45 degrees, and dorsiflexion was to 20 degrees.  Inversion and eversion were to 30 degrees.  There was normal range of motion of the toes, and strength of movement was 5/5.  The examiner diagnosed a cavus deformity of the right foot, without any evidence of plantar fasciitis.  

The treatment records dated during the pendency of this claim reflect only sparse treatment for the right foot, and do not show pathology, symptoms, or functional impairment different from or more severe than that discussed in the VA examination reports. 

A January 2009 letter by the Veteran's private family nurse practitioner states that the Veteran had been her patient for five years, and that he had a moderate amount of pain in his feet and was unable to walk around his home without any kind of shoe support at any given time.  She also noted that the Veteran used a cane, although did not specify whether the cane was for his foot or for other orthopedic problems, such as his back disorder.  She stated that the Veteran was permanently disabled "because of his back and feet."  She also stated that the Veteran was able to maintain his activities of daily living and kept his own home with additional help, including from his son who lived with him.  On examination, the Veteran had high arches, good dorsal pedal pulses, and good capillary refill.  He had a lot of tenderness on palpation of his feet "all the way through."  His gait was unsteady even with the use of his cane.  He had full range of motion of the ankles, but also experienced a lot of pain with inversion and eversion motions.  There was no laxity.  

The evidence discussed above showing that the Veteran has a "completely normal" right foot, including based on x-ray studies, with pain on palpation and with weight-bearing supports a finding that his service-connected right foot plantar fasciitis most closely approximates the 20 percent rating assigned for moderately severe foot injuries under DC 5284.  See 38 C.F.R. § 4.71a.  Although the Veteran must wear shoe supports and has some pain and limitation of range of motion of the ankle, these symptoms and functional impairment do not rise to the level of a severe foot injury, but rather are contemplated by the 20 percent rating for a moderately severe injury.  

The evidence also does not show that the Veteran's painful or limited range of motion of the ankle is related to his service-connected right foot plantar fasciitis, which is not a disorder of the ankle.  However, even if it were, the limited motion does not warrant a 30 percent rating for a severe injury when his foot was otherwise found to be "completely normal" and when x-ray studies did not reveal any abnormalities.  Indeed, the June 2008 VA examination report reflects that the Veteran had full range of dorsiflexion and plantar flexion, and the January 2009 letter from the private nurse practitioner also states that the Veteran had full range of motion, albeit with pain.  These findings do not correlate with a severe foot injury warranting a 30 percent rating under DC 5284. 

The Board has considered the diagnosis of a cavus deformity in the June 2008 VA examination.  However, this diagnosis does not appear to be significant, as the January 2005 VA x-ray study did not reveal any abnormalities, and a cavus deformity is not otherwise mentioned in any of the treatment records, including in the January 2009 letter from the Veteran's private nurse practitioner, who fully described the Veteran's foot and stated that he had been her patient for five years.  While both the nurse practitioner and the January 2005 VA examiner noted that the Veteran had a high arch, neither characterized it as a cavus deformity, and indeed the January 2005 VA examiner found the Veteran's foot to be "completely normal" notwithstanding the high arch.  Moreover, service connection for a cavus deformity has not been established, and the nurse practitioner noted in her January 2009 letter that the Veteran's high arches were in both feet.  However, even assuming that the Veteran had a cavus deformity associated with his service-connected plantar fasciitis, this finding in itself does not warrant a 30 percent rating for a severe injury of the foot under DC 5284 as it has not been shown to produce symptoms or functional impairment beyond the 20 percent rating currently assigned for a moderately severe injury.  Whether a separate rating may be warranted for a pes cavus deformity will be discussed below. 

Although it has been noted several times that the Veteran walks with a limp and uses a cane, there are no findings that his limp or the need for a cane are associated with his right foot disorder as opposed to his back disorder and right knee disorder.  Thus, the fact that he uses a cane and walks with a limp does not warrant a 30 percent rating for a severe injury as it has not been attributed to his right foot.  Likewise, although the nurse practitioner stated in the January 2009 letter that the Veteran was permanently disabled, she attributed this disability to disorders of the back and both feet, and not just to the right foot.  Thus, this finding does not by itself warrant a 30 percent rating given the probative evidence in the form of objective clinical findings showing that the Veteran's right foot is essentially normal apart from subjective pain. 

Also probative is the August 2005 private treatment record reflecting that the Veteran only reported foot pain which was present mainly in the heel, and did not report any other foot problems, and indeed has not generally sought treatment for his foot during the pendency of this claim.  This record suggests that the Veteran's right foot disorder may be less severe than what has been reported at the VA examinations, when the Veteran has had an incentive to exaggerate his right foot symptoms in connection with a claim for increased benefits.  

Thus, as the Veteran's right foot plantar fasciitis is manifested by pain but no objective abnormalities (or at most perhaps by a cavus deformity which has not been shown to produce more impairment than that already contemplated by the 20 percent rating currently assigned) and no laxity or weakness of the foot or toes, a 30 percent rating is not warranted for a severe foot injury under DC 5284.  

The Board notes that painful motion is an important factor of disability.  See 38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Id.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Id.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).  

Moreover, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  Further, under 38 C.F.R. § 4.45 (2012), consideration must also be given to weakened movement, premature or excess fatigability and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint).  

In this case, the Veteran does not have any service-connected pathology of a joint associated with his right foot plantar fasciitis.  Thus, the above provisions do not apply.  Moreover, the evidence does not show that the Veteran's pain and limited motion of the right foot is productive of disability beyond that contemplated by the 20 percent rating already assigned for a moderately severe injury of the foot.  Thus, a higher rating is not warranted based on painful and limited motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07.

The Board has considered the application of other diagnostic codes.  As noted above, the June 2008 VA examiner diagnosed a pes cavus deformity.  Diagnostic Code 5278 pertains to acquired claw foot (pes cavus).  See 38 C.F.R. § 4.71a.  Under DC 5278, acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling.  Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement.  Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement.  Id.

Here, there is no evidence that the great toe is dorsiflexed, that all toes tend toward dorsiflexion, or that there is marked contraction of the plantar fascia with dropped forefoot and all toes being "hammer toes," or that there are painful callosities or marked varus deformity.  See id.  Thus, even assuming that the Veteran had a pes cavus deformity associated with his service connected plantar fasciitis, he does not have any of the structural abnormalities associated with compensable ratings under DC 5278.  See id.  Moreover, in light of the fact that the Veteran does not have any symptoms or functional impairment associated with his pes cavus deformity beyond that contemplated by the 20 percent rating assigned for a moderately severe foot injury, to assign a separate rating under DC 5278 would result in compensating the Veteran twice for manifestations of the same disability under various diagnoses, in violation of the rule against pyramiding.  See 38 C.F.R. § 4.14.  Accordingly, a separate rating under DC 5278 is not warranted.  As discussed above, it is also questionable whether such a deformity is in fact present, but the Board's analysis is not affected either way.

With regard to other potentially applicable diagnostic codes, there is no evidence indicating that the Veteran has flatfoot, weak foot, Morton's disease, hallux valgus, hallux rigidus, hammer toe, malunion or nonunion of the tarsal or metatarsal bones, or any other foot disorder.  Thus, a higher or separate rating is not warranted under Diagnostic Codes 5276, 5279, 5280, 5281, 5282, 5283, or 5284.  See 38 C.F.R. § 4.71a. 

The Board has carefully considered the Veteran's statements, as discussed above, and his contention that a higher rating should be assigned for his right foot disorder.  However, the evidence of record, including the Veteran's statements, does not show that the legal criteria for a higher rating have been met, for the reasons discussed above.  

As discussed above, there is no evidence showing that the Veteran is entitled to a rating in excess of 20 percent for his right foot disorder at any point during the pendency of this claim.  Thus, staged ratings are not appropriate for the time frame on appeal.  See Hart, 21 Vet. App. at 509-10.

The issue of whether entitlement to TDIU is warranted due to unemployability produced by the Veteran's right foot disorder will be discussed below in the section addressing entitlement to TDIU.   See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding, in pertinent part, that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted).  Id. 

The Board has considered whether the Veteran's claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry.  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  See id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  

Referral for extraschedular consideration is not warranted.  A comparison of the Veteran's right foot disorder and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  In this regard, his right foot disorder is manifested by symptoms and functional impairment expressly addressed by the rating criteria, including pain and possibly some limitation of motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59, See DeLuca, 8 Vet. App. at 206-07; see also 38 C.F.R. § 4.71a, DC's 5284, 5278.  His reported functional limitations are concomitants of the symptoms and pathology already compensated under the applicable diagnostic codes and thus are within the purview of the schedular criteria.  See 38 C.F.R. § 4.1 (providing that the degrees of disability specified in the General Rating Criteria are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability).  Thus, the Veteran does not have symptoms or pathology associated with his right foot disorder that have been left uncompensated or unaccounted for by the assignment of a schedular rating.  See Thun, 22 Vet. App. at 115.  Indeed, his right foot has been shown to be essentially normal, including based on x-ray studies.  As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes.  Rather, the disability must be "exceptional" or "unusual."  

Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Therefore referral for extraschedular consideration is not warranted.  See id.

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a rating in excess of 20 percent for a right foot disorder is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 

V. TDIU

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 4.15.  

To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).
In making such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age.  See 38 C.F.R. §§ 3.341(a), 4.16(a).  

If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more.  See 38 C.F.R. § 4.16(a).  If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more.  Id.  Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes.  Id.  

Here, service connection has been established for plantar fasciitis of the right foot, rated as 20 percent disabling, and osteoarthritis of the right knee, rated as 10 percent disabling.  The Veteran does not have any other service-connected disabilities.  The combined evaluation of his service-connected disabilities is 30 percent.  See 38 C.F.R. § 4.25 (2012).  Thus, the schedular criteria for entitlement to TDIU have not been met as the Veteran does not have a service-connected disability rated as 60 percent or more, or a service-connected disability rated as 40 percent or more with a combined rating of 70 percent or more.  See id.

Although the Veteran does not meet the schedular criteria for TDIU consideration, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Rating boards will refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).  The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b).  

In his January 2006 application for TDIU, the Veteran stated that he last worked full time as a salesman from June 2001 to January 2004, and that he discontinued working due to foot and right knee disorders.  He also indicated that he had completed high school and three years of college. 

A March 1993 SSA decision reflects that the Veteran was found to be disabled due to his back disability. 

A January 2004 private treatment record reflects that the Veteran had a new job "driving all day for sales."  He reported that he discontinued his prior job in sales because "the driving was too much."  He stated that he had "another new job at home with telephone sales."  

An April 2004 private treatment record reflects that the Veteran was not working and "doesn't feel he can find adequate work that will not bother his back."  He did not mention his foot or knee disorders. 

A May 2004 letter from the Veteran's private treating physician states that the Veteran was unable to maintain employment because of chronic back pain.  There is no mention of foot or knee problems in this letter. 

In a May 2008 letter, the Veteran's private family nurse practitioner stated that the Veteran had multiple problems with spondylosis, degenerative arthritis of the knees, and limited range of motion.  He was also having problems with decreased motion of his left shoulder.  She stated that his chronic pain debilitated him to the point where he was unable to be gainfully employed. 

A January 2009 letter by the Veteran's private family nurse practitioner states 
that the Veteran was permanently disabled "because of his back and feet."  

At the April 2011 VA examination, the Veteran reported ongoing right knee pain which he described as a "pulsating, grabbing, shocking, jolting pain."  The pain was localized at the medial aspect of the patella and extended across the patella "if he stepped wrong."  Additional symptoms included giving way, stiffness, weakness, and decreased speed of joint motion, but no instability or incoordination.  He reported severe flare-ups occurring every other day and a half, and lasting one to two weeks.  On range of motion testing, flexion of the right knee was from 0 to 125 degrees and extension was normal.  There was no objective evidence of pain or additional limitation of motion after three repetitions.  The Board notes that normal range of motion of the knee is defined as extension to 0 degrees and flexion to 140 degrees.  See 38 C.F.R. § 4.71a, Plate II.  An x-ray study showed minimal to mild medical compartment osteoarthritis of the right knee.  The examiner also noted that the Veteran did not have difficulty getting on and off the examination table or in and out of the chair.  

When the Veteran was asked about his employment history at the April 2011 VA examination, the Veteran reported that he discontinued working because he was required to get in and out of a car repeatedly, which "adversely affected his lumbar spine condition and right knee condition."  With regard to effects on daily activities, the examiner noted that the right knee disability prevented the Veteran from engaging in sports, had severe effects on his ability to do chores and exercise, had moderate effects on his ability to shop, engage in recreation, travel, and drive, and no effect on his ability to groom, dress, and bathe.  The Veteran stated that he walked his dog for exercise, and was able to drive a car, but had increased pain when driving long distance.  

The evidence discussed above shows that the Veteran's inability to work is mostly due to his back disorder.  The most probative evidence in this regard is the April 2004 private treatment record, in which the Veteran reported that he "doesn't feel he can find adequate work that will not bother his back."  Because this record is contemporaneous to the time that the Veteran discontinued working around January 2004, and the Veteran did not have an incentive at the time to support a claim for TDIU benefits, his statements reflected in this record are more credible and reliable than subsequent statements made after he submitted his present claim for benefits.  See White, 502 U.S. at 356; Curry, 7 Vet. App. at 68.  His report in this record that he had discontinued working due to his back disorder is borne out by the May 2004 letter from his private treating physician stating that the Veteran was unable to maintain employment because of chronic back pain.  There is no competent or credible evidence showing that the Veteran's right foot and right knee disorders alone, and without regard to other factors such as age and nonservice-connected disabilities, are sufficiently incapacitating as to prevent him from obtaining and maintaining substantially gainful activity.  The most probative and credible evidence shows that rather it is his back disorder and/or the combined effects of this disorder, a shoulder disorder, and bilateral knee and foot disorders that allegedly prevent him from working.  There are no competent medical opinions of record or other indications that the Veteran would be unable to engage in any sedentary employment consistent with his age, education, and vocational background solely due to his service-connected right knee and right foot disorders. 

The Board has considered the Veteran's assertion that his right foot and right knee disorders alone are sufficiently disabling as to prevent him from engaging in substantially gainful activity.  However, the Board finds that although the Veteran may be competent to describe his symptoms and functional impairment associated with his service-connected disabilities, this assertion is not credible in light of more probative evidence of record, including the contemporaneous treatment records, showing that it is his back disorder which prevents him from working rather than his right knee or right foot disorders.  See Caluza, 7 Vet. App. at 511; Madden, 125 F.3d at 1480.  Thus, the preponderance of the credible and probative evidence weighs against the Veteran's assertion that he cannot engage in substantially gainful activity solely due to his service-connected right foot and right knee disorders, whether considered individually or in their combined effects. 

Accordingly, as there is no indication that the Veteran's service-connected disabilities are sufficiently incapacitating as to result in unemployability as defined for TDIU purposes, referral for extraschedular consideration of entitlement to TDIU is not warranted.  38 C.F.R. § 4.16(b).  

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to TDIU is denied.  See 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 


ORDER

Entitlement to service connection for a back disorder is denied.

Entitlement to an increased disability rating for planter fasciitis of the right foot, currently rated as 20 percent disabling, is denied.

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is denied. 



____________________________________________
P.M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs