Citation Nr: 1318033	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  10-31 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1.  Whether there is new and material evidence to reopen a claim for service connection for a left wrist disorder.

2.  Whether there is new and material evidence to reopen a claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy.

3.  Entitlement to service connection for a cervical spine disorder, including associated upper extremity radiculopathy.

4.  Whether there is new and material evidence to reopen a claim for service connection for a left knee disorder.

5.  Entitlement to service connection for a left knee disorder.

6.  Entitlement to service connection for a bilateral shoulder disorder.

7.  Entitlement to service connection for a left index finger disorder

8.  Entitlement to service connection for a left thumb disorder.

9.  Entitlement to service connection for a skin disorder.

10.  Entitlement to an increased rating for a right knee disability, diagnosed as chondromalacia of the right knee, currently rated as 10-percent disabling.

11.  Entitlement to an increased rating for a low back disability, diagnosed as a low back injury with residual tenderness in the lumbar spine paravertebral muscle area, also currently rated as 10-percent disabling.
 
12.  Entitlement to an effective date earlier than October 20, 2009, for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel



INTRODUCTION

The Veteran had active military service from July 1981 to January 1994.

This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned an effective date of January 28, 2008, as well as a June 2009 rating decision which found that new and material evidence had not been submitted sufficient to reopen claims for service connection for a left wrist disorder, a left knee disorder, a left index finger disorder, a bilateral shoulder disorder, a cervical spine disorder, and a sleep disorder; denied service connection for a left thumb disorder and a skin disorder; and continued 10 percent ratings for the Veteran's service-connected right knee and low back disabilities.  In a December 2009 rating decision, the RO granted an increased, 100 percent rating for PTSD, effective October 20, 2009.  

In January 2012, the Veteran testified before the undersigned during a Board hearing conducted at the Washington, D.C. Central Office.

At his Board hearing, the Veteran clarified that his claim for service connection for a bilateral leg disability was actually a claim of service connection for a bilateral knee disorder. The undersigned explained that service connection had already been awarded for a right knee disability, currently on appeal for an increased rating, and that the claim for service connection for a left knee disability was also on appeal, on a new and material basis.  See pages 8-9 of hearing transcript.  Thus, the knee disorders, and not separate leg disorders, are being appealed as characterized on the front page of this decision.

During the hearing, the Veteran also asserted that the claimed cervical spine disability also included associated radiculopathy.  See page 14 of the hearing transcript.  Thus, the issue of whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disorder has been recharacterized to include radiculopathy.

In September 2012, the Board denied entitlement to an effective date earlier than January 28, 2008 for service connection for PTSD, but granted service connection for insomnia.  The Board also granted the Veteran's applications to reopen his claims for service connection for a bilateral shoulder disability and a left index finger disability.  The Board remanded the reopened claims for service connection for a bilateral shoulder disability and a left index finger disability, on the merits, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.  The Board also remanded the requests to reopen claims for service connection for a left wrist disorder, a cervical spine disorder, and a left knee disorder, as well as claims for service connection for a left thumb disorder and a skin disorder and the claims for increased ratings for the right knee and low back disabilities.  

In an October 2012 rating decision, the AMC implemented the Board's grant of service connection for insomnia by including this condition in the evaluation of the Veteran's service-connected PTSD.  The AMC continued the 100 percent rating for PTSD with insomnia (dysomnia).  In December 2012, the Veteran filed a notice of disagreement (NOD) indicating that he disagreed with the effective date of October 20, 2009.  The Board notes that, as indicated above, the effective date of October 20, 2009 for the 100 percent rating for the Veteran's service-connected PTSD was previously established in a December 2009 rating decision.  However, as will be discussed elbow, the record reflects that the Veteran filed a timely NOD with that rating decision in regard to the effective date of the 100 percent rating.  Accordingly, this issue has been included on the title page, as it must be remanded for issuance of a statement of the case (SOC).  See Manlincon v. West, 12 Vet. App. 238 (1999).  After receiving this SOC, the Veteran will then have opportunity to complete the steps necessary to perfect his appeal of this claim to the Board by also filing a timely substantive appeal (VA Form 9 or equivalent statement) concerning this claim.  

The Board also is remanding the reopened claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, the reopened claim for service connection for a left knee disorder, and the claims for service connection for a bilateral shoulder disorder and a skin disorder, as they, too require further development before being decided on appeal.

Regarding the request to reopen the claim for service connection for a cervical spine disorder, the Board notes that, in the June 2010 SOC, the RO reopened the claim, but denied the claim for service connection.  Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received, this matter on appeal has been characterized as reflected on the title page.

The Board also has reviewed the Veteran's electronic ("Virtual VA") file and found that it contains additional medical evidence, but that this evidence has been considered by the AMC in the most recent supplemental statement of the case (SSOC).  Therefore, the Board's consideration of this evidence will not prejudice the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

The claims file reflects that the Veteran was previously represented by the Tennessee Department of Veterans' Affairs (as reflected in a February 2008 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative).  In October 2008, the Veteran filed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, appointing Byron Simpson as his representative; however, the Veteran was advised via a November 2008 letter that this 21-22a could not be accepted because Mr. Simpson was not accredited to represent claimants before VA.  No individual may assist claimants in the preparation, presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose.  38 C.F.R. § 14.629(b)(2) (2012).  In August 2009, Mr. Simpson again filed a copy of the VA Form 21-22a as well as a fee agreement.  He also submitted a request for a copy of the Veterans' claims file.  

In January 2010, the Veteran filed a VA Form 21-22 naming the National Association of Black Veterans, Inc., as his representative.  On February 4, 1010, Byron Simpson sent a facsimile to the RO in which he indicated that a review of his files indicated that he had never received a copy of the file as he had requested in August 2009.  He included a copy of his August 2009 request for a copy of the Veteran's claims file.  The following day, on February 5, 2010, the RO sent the Veteran a letter indicating that it had received the Veteran's VA Form 21-22, but this could not be processed because block 14 was not signed.  Confusingly, the RO advised the Veteran that a copy of the letter was being sent to his representative, the Tennessee Department of Veterans Affairs.  In any event, on February 8, 2010, the Veteran submitted a signed copy of the VA Form 21-22 naming the National Association of Black Veterans, Inc., as his representative.  This appointment was acknowledged by the RO on February 11, 2010.  Confusingly, another copy of this VA Form 21-22 (submitted in January 2010) was annotated by the RO as being revoked in June 2011, as the Veteran had an attorney, effective from October 2008, and a copy of the Veteran's claims file was provided to Mr. Simpson on February 25, 2010.  In a statement received in March 2010, the Veteran reported that a copy of his claims file had been sent to a private attorney, but he was not represented by this lawyer; rather, he clarified that he had appointed the National Association for Black Veterans, Inc.  In a June 2011 statement, the Veteran informed the RO that he had been told that he had hired Mr. Simpson to handle his claim; however, the Veteran stated that he had not nor did he intend to hire him.  

In light of the Veteran's June 2011 assertion, in August 2011, the RO indicated that it would contact Mr. Simpson.  That same month, Mr. Simpson advised the RO that he did not represent the Veteran, nor had he represented him for some time.  In an August 2011 letter, the RO advised the Veteran that it had received correspondence from Mr. Simpson indicating that he no longer represented the Veteran.  The RO stated that the Veteran was presently deemed to have no representation.  

The record reflects that Mr. Simpson is, now, accredited to represent claimants before VA.  Nevertheless, only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim, with a few noted exceptions.  38 C.F.R. § 14.631(e)(1).  A power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney.  38 C.F.R. § 14.631(f)(1).

Here, despite the fact that the RO advised the Veteran in June 2011 that he was represented by Mr. Simpson, the fact remains that, subsequent to filing of the August 2009 VA Form 21-22a naming Mr. Simpson as the Veteran's representative, the Veteran filed a VA Form 21-22 naming the National Association of Black Veterans, Inc., as his representative.  This conclusion is further supported by the fact that the Virtual VA e-folder includes an October 2011 letter from the RO responding to an August 2011 request from the Veteran for a letter advising him when the private attorney submitted a 21-22a.  The RO informed the Veteran that the 21-22a was received in August 2009.  The filing of the February 2010 VA Form 21-22 served to revoke any prior VA Form 21-22a in favor of Mr. Simpson.  See 38 C.F.R. § 14.631(f)(1).  

To further complicate the question of representation in this case, the Board acknowledges that, during the January 2012 hearing, the undersigned noted that, as of September 2011, the Armed Forces Services Corporation was listed as the Veteran's representative of record.  On the date of the hearing, the Veteran filed a statement in which he revoked the power of attorney in favor of the Armed Forces Services Corporation.  However, the September 2011 VA Form 21-22 naming the Armed Forces Services Corporation is a misfiled document.  This document was filed by another Veteran in regard to his claim, and was mistakenly included in this Veteran's claims file.  The September 2011 VA Form 21-22 has been removed from this Veterans' claims file so that it may be associated with the appropriate record.  

In light of the foregoing, the most recent appointment of a representative is the February 2010 VA Form 21-22 appointing the National Association of Black Veterans, Inc., as the Veteran's representative.  The Veteran has not since revoked this representation nor has he named a new representative.  While he was unrepresented during the January 2012 hearing, the Veteran indicated at that time that he wished to proceed with the hearing without his representative present.  The Veteran clarified in an August 2012 statement that the National Association of Black Veterans, Inc. was supposed to be at his January 2012 hearing, but he had been informed that they would not be there.  Of note, the National Association of Black Veterans, Inc. was provided a copy of the most recent SSOC.  Accordingly, the Veteran has been accorded his full right of representation at all stages of the appeal.  See 38 C.F.R. § 20.600.  

As a final preliminary matter, in May 2004, the Veteran reported that he was filing an NOD because he had had his claim for service connection for right hip bursitis checked at the VA hospital and, after initially being told that this condition was not service-connected, he was told that it was service-connected.  The RO responded the same month that the Veteran's claim for service connection for bursitis of the right hip had been denied in a February 2001 rating decision, and he had had one year from the date of the February 2001 letter advising him of the denial to appeal that decision.  The RO advised the Veteran that, if he would like to reopen a claim for this issue, he should notify that office.  The Veteran has not subsequently requested reopening of the claim for service connection for bursitis of the right hip; however, the Board finds that his May 2004 communication, though titled as an NOD, was sufficient to raise a request to reopen a claim for service connection for bursitis of the right hip.  

A petition to reopen a claim for service connection for bursitis of the right hip has been raised by the record, but has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  The Board therefore does not presently have jurisdiction over this claim so is referring it to the RO as the AOJ for appropriate action.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

Please also 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.  All notification and development needed to fairly adjudicate the claims herein decided has been accomplished.

2.  In a June 1994 rating decision, the RO denied service connection for a left wrist injury; although notified of that denial in a July 1994 letter, the Veteran did not initiate an appeal.

3.  None of the additional evidence received since that June 1994 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate this claim of entitlement to service connection for a left wrist disorder, or raises a reasonable possibility of substantiating this claim.

4.  In a February 2001 rating decision, the RO denied service connection for degenerative disc disease (DDD) of the cervical spine and found that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a left knee disorder although; notified of that denial in a February 2001 letter, the Veteran did not initiate an appeal.

5.  Evidence associated with the claims file since the February 2001 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, and a left knee disorder, and raises a reasonable possibility of substantiating those claims.  

6.  The Veteran does not have left index finger or left thumb disorders which are separate and distinct ratable disabilities apart from his cervical radiculopathy, for which he is seeking service connection.  

7.  The Veteran's service-connected right knee disability is manifested by complaints of pain with flexion limited to no less than 105 degrees and no limitation of extension; the evidence does not reflect recurrent subluxation or lateral instability, ankylosis, dislocated semilunar cartilage, or impairment of the tibia and fibula.  

8.  The Veteran's service-connected low back disability is manifested by forward flexion to no less than 85 degrees and combined range of motion to no less than 235 degrees; there is no evidence of muscle spasm, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal contour or incapacitating episodes of intervertebral disc syndrome (IVDS).  

9.  The Veteran has, at times, reported back pain radiating to the lower extremities, and the November 2012 VA examiner found that the Veteran's low back disability is manifested by mild radiculopathy affecting both the right and left sciatic nerves.  
 

CONCLUSIONS OF LAW

1.  The RO's June 1994 decision denying service connection for a left wrist injury is final and binding based on the evidence then of record.  38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).

2.  There is not new and material evidence since that decision to reopen the claim for service connection for a left wrist disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  The RO's February 2001 rating decision denying service connection for DDD of the cervical spine and determining that new and material evidence had not been submitted sufficient to reopen a claim for service connection for a left knee disorder is also final.  38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).

4.  However, as pertinent evidence received since the February 2001 denial is new and material, the criteria for reopening the claims for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, and a left knee disorder are met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).  

5.  The Veteran does not have a left index finger or left thumb disorder separate and distinct from his claimed upper extremity radiculopathy which was incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

6.  The criteria for a rating in excess of 10 percent for the service-connected right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5257 (2012).

7.  The criteria for a rating in excess of 10 percent for the service-connected low back disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

8.  With resolution of all reasonable doubt in the Veteran's favor, the criteria for separate 10 percent ratings for right and left lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1), 4.124a, Diagnostic Code 8520 (2012).
  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA electronic folder (e-folder).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in exhaustive detail each and every piece of evidence submitted by him or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regarding his claims.  He must not assume the Board has overlooked any pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied.  Id.

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Given the favorable disposition of the requests to reopen the claims for service connection for a cervical spine disorder and a left knee disorder, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished.  

The Veteran filed a request to reopen the claim for service connection for a left wrist disorder, a request to reopen a claim for service connection for a left index finger disorder, a claim for service connection for a left thumb disorder, and claims for increased ratings for the right knee and low back disorders in December 2008.  Thereafter, in a December 2008 letter, the RO was provided notice of the information and evidence necessary to substantiate his claims and of his and VA's respective duties for obtaining evidence.  The claims were reviewed and the June 2009 rating decision was issued.  After the Board reopened the claim for service connection for a left index finger disorder in September 2012, the Veteran was provided VCAA notice regarding the underlying claim for service connection in October 2012.  After issuance of this latter notice, the AMC readjudicated the claims in March 2013 SSOC.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) found that the VCAA notice requirements applied to all elements of a claim.  Notice as to this matter was provided in the December 2008 and October 2012 letters.  

In regard to the request to reopen a claim for service connection for a left wrist disorder, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen.  With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought.  To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate the elements required to establish entitlement to service connection that were found insufficient in the previous denial.  Here, in the December 2008 letter, the RO duly advised the Veteran that his claim of entitlement to service connection for a left wrist disorder had been previously considered and denied in a prior rating decision, which since had become a final and binding determination.  The letter further advised him of the bases of the previous denial (the left wrist injury was shown to be a temporary condition which resolved with treatment and no permanent residual disability was shown on VA examination), and informed him that new and material evidence tending to show otherwise was needed to reopen the claim.  See VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).  

Regarding the claims for increased ratings for the service-connected right knee and low back disorders, the Board notes that there were changes during the pendency of this appeal as to what is considered sufficient VCAA notice in response to an increased-rating claim.  It initially was held that, for an increased-compensation claim, the Veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life.  Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0 percent, i.e., 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 and daily life.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I).  The Federal Circuit Court subsequently held, however, that the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific, i.e., it need not notify the Veteran of alternative Diagnostic Codes, and that the statutory scheme also does not require "daily life" evidence for proper claim adjudication.  Vazquez Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I).  Even more recently, the Court clarified that the notice must advise the Veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment.  Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III).  This most recent decision also held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment, is found in an increased-rating claim, his burden to demonstrate prejudice at the Court level does not shift to VA unless notice is not provided at all.

The December 2008 letter did advise the Veteran that, in order to substantiate his claims for increased ratings, the evidence had to show that his service-connected conditions had gotten worse, and further discussed how VA assigns a disability rating from 0 to 100 percent using the rating schedule, and that the evidence considered in assignment of such rating includes the impact of the symptoms on employment and daily life.  The RO also included the pertinent rating criteria in regard to evaluation of the service-connected right knee and low back disabilities.  

The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence.  A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal.  His service treatment records, service personnel records, VA and private treatment records, and Social Security Administration (SSA) records have been obtained and associated with his claims file or Virtual VA e-folder.  The Veteran was also provided with VA examinations in March 1994, March 2008, June 2009, and November 2012 and an additional VA medical opinion regarding the service connection claims was obtained in February 2013.   

The Board observes that the request to reopen the claim for service connection for a left wrist disorder, the claims for service connection for left index finger and left thumb disabilities, and the claims for increased ratings for the service-connected right knee and low back disorders, were remanded in September 2012 to obtain outstanding SSA and VA treatment records.  The claim for service connection for a left index finger disorder was remanded to provide the Veteran VCAA notice.  He was also to be afforded a VA examination to obtain a medical opinion regarding the etiology of his claimed left index finger and left thumb disorders.  The increased rating claims were also remanded to afford the Veteran new VA examinations to assess the severity of his service-connected right knee and low back disorders.  

Subsequent to the September 2012 remand, the Veteran's SSA records were associated with the claims file and his outstanding VA treatment records were associated with his Virtual VA e-folder.  As stated above, the Veteran was provided VCAA notice regarding the reopened claim for service connection for a left index finger disorder in October 2012.  Additionally, he was afforded VA examinations to evaluate his service-connected right knee and low back disorders in November 2012.  These VA examination reports include findings which are responsive to the Board's September 2012 remand directives and the pertinent rating criteria.  Thus, these examinations are adequate to evaluate the service-connected right knee and low back disorders.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  

In regard to the claimed left index finger and left thumb disorders, the Board instructed that the Veteran should be afforded a VA examination to determine the nature and etiology of any current left index finger and left thumb disabilities.  The examiner was asked to provide an opinion as to the likelihood that any currently identified disability had its clinical onset during service or was related to any in-service disease, event, or injury.  The examiner was instructed to consider and comment on the Veteran's contentions that each disability began during service, with the left index finger and left thumb disorders being sustained during parachute jumping and continuing to the present time.  The Veteran was afforded a VA examination in November 2012, which included examination of the hands.  At that time, the examiner noted that the Veteran had had a left hand sprain; however, he did not provide an etiological opinion concerning the claimed left index finger and left thumb disorders.  Such an opinion was subsequently provided in February 2013, after another examiner had an opportunity to review the claims file.  

As will be discussed below, the February 2013 VA examiner opined that the Veteran's claimed left index finger and left thumb disorders were not related to any in-service injury or event and, instead, found his complaints to be consistent with cervical radiculopathy.  The Board is, in this decision, denying service connection for left index finger and thumb disorders as the evidence does not indicate that the Veteran has separately compensable disorders of the left index finger or thumb; rather, the symptoms associated with these claimed disorders have been attributed to cervical radiculopathy.  The Board acknowledges that, despite the September 2012 remand instructions, the February 2013 VA examiner did not comment on the Veteran's contentions that his left index finger and thumb disorders began during service, being sustained during parachute jumping and continuing to the present time.  Nevertheless, in the absence of separately compensable disorders of the left index finger or thumb, service connection for these claimed disorders cannot be established.  Importantly, the Board is reopening the claim for service connection for a cervical spine disorder, to include associated upper extremity radiculopathy, and is remanding the claim to afford the Veteran a new VA examination and obtain a medical opinion regarding this claimed disorder.  In evaluating this condition on remand, the examiner will be instructed to consider and comment on the Veteran's assertions regarding continuing symptoms in his left index finger and thumb since service.  Accordingly, remand to obtain any additional medical opinion regarding the claimed left index finger and left thumb disorders is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to the requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); see also 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).

In light of the above, the Board finds that there was substantial compliance with the September 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Board observes that, in a December 2008 statement, the Veteran reported that he was having problems with vocational rehabilitation and had asked for another counselor.  A March 2009 VA treatment record indicates that the Veteran was interested in vocational rehabilitation, however, he had a major conflict with a worker, who he refused to see, and had not been successful in obtaining a new counselor.   During treatment in July 2009, the Veteran reported that refused to have further contact with vocational rehabilitation.  As recently as in September 2012, the VA treatment records document that he remained unsuccessful in obtaining a new vocational rehabilitation counselor.  The Veteran's SSA records also reflect that he reported to that agency that he was not participating in vocational rehabilitation.  

In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court indicated that VA adjudicators have constructive, if not actual, possession of VA records when put on notice of the existence of these records. Therefore, when VA adjudicators are on notice that additional VA records may exist concerning the claim, the records must be obtained before deciding the claim.  No VA vocational rehabilitation records or folder are currently available for the Board's review.  However, the above statements from the Veteran indicate that he did not, in fact, receive VA vocational rehabilitation services which would include findings pertinent to any of the claims decided here.  Rather, after an initial conflict with his counselor, he has not sought additional services.  Moreover, the Veteran himself reported in August 2008, December 2008, and September 2009, that all pertinent evidence had been submitted.  Accordingly, remand to attempt to obtain any VA vocational rehabilitation records or folder is not warranted.  See Soyini, 1 Vet. App. at 546; see also Sabonis, 6 Vet. App. at 430.

The Board has further considered that, in paperwork completed for SSA in regard to his claim for disability benefits from that agency, the Veteran indicated that he had received treatment from Dr. G.E. in regard to all his physical conditions and chronic pain on January 15, 2010.  He stated that this physician examined him and wanted to send him to a specialist, but he was working on a referral before he could go back to Dr. G.E.  He added that no tests were performed by this provider.  This January 2010 record from Dr. G.E. is not presently of record.  However, in the October 2012 VCAA letter, the AMC advised the Veteran that, if he wanted VA to obtain any doctor, hospital, or medical reports on his behalf, he should complete and return the attached VA Form 21-4142, Authorization and Consent to Release Information.  The Veteran has not submitted any release to allow VA to obtain this treatment record from Dr. G.E.  VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  As the Veteran has not provided a release form in regard to this treatment record for Dr. G.E.; it is not possible for VA to obtain it.  Moreover, there is no indication that this single treatment record would include evidence reflecting that the Veteran has a current left wrist disorder which may be related to service, that he has a left thumb or left index finger which is separate and distinct from his cervical radiculopathy, or that such treatment record would contain specific findings regarding the severity of the service-connected right knee and/or low back disabilities.  Indeed, the form completed for SSA in which the Veteran reported treatment from Dr. G.E. in January 2010 includes a list of the Veteran's reported physical and mental conditions which limited his ability to work, namely, PTSD, chronic pain, fibromyalgia, DDD, and depression.  No left wrist, left thumb, or left index finger disorder was listed.  Moreover, the Board finds that the extensive evidence presently of record adequately describes the Veteran's service-connected right knee and low back disabilities.  Hence, no further action in regard attempting to obtain to this single January 2010 private treatment record is warranted.

The Board has also considered that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

During the Board hearing, the undersigned Veterans Law Judge did not specifically discuss the criteria necessary to reopen a claim for service connection based on the submission of new and material evidence; however, he did discuss the criteria necessary to establish the underlying claim for service connection, thereby addressing the elements of the claim that were insufficient at the time of the prior final denial.  The Veterans Law Judge also discussed the criteria necessary to substantiate a claim for an increased rating.  Additionally, the Veterans Law Judge asked questions regarding the relationship between the Veteran's claimed left wrist, left index finger and left thumb disorders and service as well as questions regarding the severity of his right knee and low back disorders.   He also sought to identify any pertinent evidence that might have been overlooked or was outstanding.  Thus, the two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied.  See Bryant, 23 Vet. App. at 496-97.  

The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  The Board has not identified any hearing deficiency.  In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit.  In this case, given the extensive development of the Veteran's claim discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id. 

The Veteran has not identified any additional, relevant evidence that has not been requested or obtained.  The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims.

Factual Background and Analysis - New and Material Evidence

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).  

Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has found that the post-VCAA version of 38 C.F.R. § 3.156(a) created a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Id., at 120.  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that, in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A three-element test must be satisfied in order to establish entitlement to service connection. 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). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (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))). 

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. 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.").  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 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 or abnormal heart action in claims for arthritis or heart disease, for example) 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. 

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the 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).  Walker, 708 F.3d at 1338.  Thus, if the claimant does not have 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 met. Id. at 1338-39.  

Arthritis (though not also DDD) is a chronic disease, per se, which would be entitled to presumptive service connection if manifested to a degree of 10 percent or more within one year of the Veteran's separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  

Request to reopen claim for service connection for a left wrist disorder

The Veteran initially filed a claim for service connection for a left wrist disorder in December 1993.  In the June 1994 rating decision, the RO denied service connection for a left wrist disorder noting that, while service treatment records showed treatment for an acute flexion injury of the left wrist, this was shown to be a temporary condition which resolved with treatment with no permanent residual disability shown on VA examination.  

The Veteran was notified of the June 1994 rating decision by a July 1994 letter.  The Veteran did not initiate an appeal; hence, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  In addition, no new and material evidence was received within one year of the June 1994 rating decision.  See 38 C.F.R. § 3.156(b).

Evidence of record at the time of the June 1994 rating decision included the Veteran's service treatment records which reflect that, in May 1991, he had an acute flexion injury of the left wrist.  There was tenderness and the possibility of a dislocated lunate; however, X-ray revealed no evidence of a fracture, dislocation, or arthritic or inflammatory change.  The Veteran was examined on enlistment in the National Guard on January 28, 1994 (eight days after separation from service).  At that time, he denied ever having or currently having swollen or painful joints, arthritis, rheumatism, or bursitis, a bone, joint, or other deformity, or neuritis.  Clinical evaluation of the upper extremities was normal.  

On VA examination in March 1994, the Veteran gave a history of an acute flexion injury in May 1990.  He denied any current complaints regarding his left wrist.  Examination of the hands was normal.  The pertinent diagnosis was history of acute flexion injury of the left wrist in 1990 which had resolved with no residual.  

The Veteran filed a request to reopen the claim for service connection for a left wrist disorder in December 2008.  The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final and binding denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final and binding denial of the claim is the June 1994 decision.

For purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  This presumption only applies when making this determination as to whether the evidence in question is new and material.  It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  So, essentially, this presumption of credibility "dissolves" once the claim is reopened and decided on its underlying merits.  See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").  The Board also does not have to blindly accept as credible assertions of a claimant that are beyond his competence.

Pertinent evidence associated with the claims file subsequent to the June 1994 rating decision includes a left hand X-ray obtained in conjunction with an August 2000 VA general medical examination which was negative.  

The record reflects that the Veteran was in a motor vehicle accident in December 2009, after which he reported pain in his hands.  X-ray of the wrist was reportedly within normal limits.  A nursing note documents that the Veteran was still complaining of pain in his neck, ankle, and wrist, despite receiving medication approximately an hour earlier.  While the nursing note does not indicate whether the Veteran was experiencing pain in his left or right wrist, the emergency room record reflects that the Veteran presented approximately two hours after his accident, with complaints of headaches and pain in the neck, chest, right rib area, left ankle, and right arm.  (Emphasis added).  There were also abrasions across both knuckles and to the left thigh.  The physician noted that cervical spine, rib, shoulder, and elbow X-rays were negative for fracture or dislocation.  Thus, while the December 2009 nursing note does not indicate whether the Veteran was complaining of right or left wrist pain, when the note is read in the context of the emergency room record from earlier that day, reflecting complaints of right arm pain, it becomes clear that his report that he was still having pain in the wrist was in reference to the right wrist.    

During the January 2012 hearing, the Veteran testified that his left wrist and index finger were treated in service when he came down wrong on a jump and he jammed them.  He stated that both his left wrist and thumb normally locked up together, but then clarified that it was his left thumb and index finger which locked up.  He added that his left thumb and index finger locked up because he injured them during service, and he continued to have problems with them.  The Veteran reported that his VA physicians had told him that his problems were related to the degenerated disc which ran from his shoulders down to the fingers.  The Veteran responded affirmatively to the question of whether his left wrist and index finger disorders were residuals of his DDD of the cervical spine, adding that his doctor said it was his spine injury which was causing the numbness in his fingers and joints.  The Veteran testified that, while his fingers were injured in service, his doctor had told him that it was his spine injury which was currently causing his fingers to lock up.  

At the time of the June 1994 rating decision, there was evidence of an in-service injury to the left wrist; however, there was no evidence of a left wrist disorder since separation from service.  The evidence associated with the record since the June 1994 denial similarly does not indicate the presence of a current left wrist disorder.  

The Board acknowledges that laypersons, such as the Veteran, are competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

Here, however, the Veteran has not reported, nor does the record otherwise suggest a current left wrist disorder.  Rather, the only medical records making reference to complaints regarding the wrist are, as discussed above, in regard to complaints of left wrist pain following a December 2009 motor vehicle accident.  Additionally, the Veteran's January 2012 hearing testimony reflects that, while he incurred a left wrist injury in service, he currently experiences locking in his left thumb and index finger.  

In order to establish service connection for a claimed condition, the Veteran must have a current disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  
 
Because the evidence submitted since the June 1994 denial does not indicate the presence of a current left wrist disorder, it does not relate to an unestablished fact necessary to substantiate the claim for service connection.  

As there is not new and material evidence, the request to reopen the claim for service connection for a left wrist disorder is denied.

Request to reopen claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy

In a February 2001 rating decision, the RO denied service connection for DDD of the cervical spine, noting that, while the Veteran complained of a stiff neck in October 1985, the evidence did not establish that the current findings of DDD in the cervical spine were related to service.  

The Veteran was notified of the February 2001 rating decision by a February 2001 letter.  He did not initiate an appeal; hence, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  In addition, no new and material evidence was received within one year of the February 2001 rating decision.  See 38 C.F.R. § 3.156(b).

Evidence of record at the time of the February 2001 rating decision included the Veteran's service treatment records which reflect that, in October 1985, he presented with complaints of a stiff neck for four days due to playing football.  The assessment was muscle spasm in neck.  The Veteran was examined on enlistment in the National Guard on January 28, 1994.  At that time, he denied ever having or currently having recurrent back pain, arthritis, rheumatism, or bursitis, a bone, joint, or other deformity, or neuritis.  Clinical evaluation of the neck and spine was normal.  

Examination of the cervical spine on VA general medical examination in August 2000 revealed full range of motion with pain on lateral motion.  X-ray revealed degenerative changes with mild osteophytic spurring of C5 thought C7.  There was some mild joint space narrowing of the C5-6 and C6-7 interspaces.  There was some slight loss of height of C6 anteriorly and superiorly.  There was also loss of normal curvature of the cervical spine.  The pertinent diagnoses were degenerative changes at C5-C7with spurring, DDD at C5-6 and C6-7, and fracture at C6 with loss of normal curvature.  

The Veteran filed a request to reopen the claim for service connection for a cervical spine disorder in December 2008.  The last final and binding denial of the claim for service connection is the February 2001 rating decision.  Thus, in order to reopen the claim, new and material evidence must have been submitted since the February 2001 denial.  See Evans, 9 Vet. App. at 282-3.  As discussed above, the credibility of the evidence is presumed for purposes of the "new and material" analysis.  Justus, 3 Vet. App. at 512-513.  

At the time of the February 2001 denial, there was evidence of in-service treatment for a stiff neck, with an assessment of muscle spasm, and post-service evidence of degenerative changes in the cervical spine; however, there was no evidence linking the Veteran's current cervical spine disorder to service.  

Evidence associated with the record since the February 2001 rating decision includes an April 2009 medical evaluation performed in conjunction with the Veteran's claim for SSA benefits.  During this evaluation, the Veteran reported multiple in-service injuries to his neck, back, and knees in parachute jumps.  In a form completed for SSA in January 2010, the Veteran described pain in his neck, beginning in military service.  During the January 2012 hearing, the Veteran reported that he had experienced problems with his left index finger and thumb locking continually since service.  In February 2013, a VA examiner reviewed the claims file and found that the Veteran's complaints regarding his left thumb and index finger were consistent with cervical radiculopathy.  

Presumed credible under the law for the purpose of determining whether new and material evidence has been submitted, the January 2010 report of neck pain starting in service indicates a continuity of symptomatology of neck pain since service.  Additionally, the Veteran's January 2012 hearing testimony, regarding locking of the left index finger and thumb since service, read together with the February 2013 VA examination report attributing these symptoms to cervical radiculopathy, indicates a continuity of symptomatology in regard to cervical radiculopathy.  The Veteran is competent to report a continuity of symptomatology regarding his neck pain and locking of his fingers since service.  Charles v. Principi, 16 Vet. App. 370 (2002).  These reports of continuity of symptomatology suggest a link between the current DDD of the cervical spine, including associated radiculopathy, and service.  See Duenas v. Principi, 18 Vet. App. 512 (2004).

The Board acknowledges that, in a form completed for the SSA in July 2008, the Veteran described chronic neck pain beginning in January 2008.  Nevertheless, for the purpose of determining whether new and material evidence has been submitted, the credibility of the January 2010 report of neck pain beginning in service is presumed credible.  Justus, 3 Vet. App. at 512-513.  

The aforementioned reports of continuity of symptomatology are new.  They are also material in that they specifically relate to an unestablished fact necessary to substantiate the claim for service connection, that is, a relationship between a current cervical spine disorder, to include associated radiculopathy, and service.  Considering the Court's holding in Shade, the Board finds that this evidence raises a reasonable possibility of substantiating the claim for service connection.  Thus, this claim must be reopened.

Therefore, as new and material evidence has been received, the claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, is reopened.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

Request to reopen claim for service connection for a left knee disorder

The Veteran initially filed a claim for service connection for knee disorders in December 1993.  In the June 1994 rating decision, the RO denied service connection for patellofemoral stress syndrome of the left knee.  In the February 2001 rating decision, the RO found that new and material evidence had not been submitted sufficient to reopen the claim for service connection for a left knee disability as none of the evidence submitted since the June 1994 denial provided a nexus to service.  

The Veteran was notified of the February 2001 rating decision by a February 2001 letter.  He did not initiate an appeal; hence, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  In addition, no new and material evidence was received within one year of the February 2001 rating decision.  See 38 C.F.R. § 3.156(b).

Evidence of record at the time of the February 2001 rating decision included the Veteran's service treatment records which reflect that, in August 1984, the Veteran presented with complaints of bilateral knee pain for three days without a known injury.  Examination revealed no swelling or instability.  The assessment was arthralgia due to overuse.  In October 1993, the Veteran was seen for follow-up for bilateral knee trauma.  He complained of right and left knee pain for two months.  The assessment was runner's knee.  The Veteran was examined on enlistment in the National Guard on January 28, 1994.  At that time, he denied ever having or currently having swollen or painful joints, arthritis, rheumatism, or bursitis, a bone, joint, or other deformity, or a "trick" or locked knee.  Clinical evaluation of the lower extremities was normal.  

On VA examination in March 1994, the Veteran reported that he had been seen for knee complaints during service.  The examiner noted that he was seen in August 1984 for pain in the bilateral knees and, while the Veteran had no injuries at that time, he did report that he had been parachuting.  At the time of the VA examination, the Veteran reported that both of his knees ached after walking or sitting for prolonged periods of time.  He also had some grinding sounds occasionally with prolonged walking and running.  Examination of the knees revealed full range of motion with no instability, effusions, or tenderness.  Multiple X-rays of the right knee were normal.  The pertinent diagnosis was history of arthralgias of both knees related to exertion while in service; previous diagnoses of retropatellar pain syndrome (this was in reference to the right knee) and "runner's knee"; some minimal crepitus in the right knee on examination, with otherwise normal clinical examinations and X-ray.  

In the June 1994 rating decision, the RO denied service connection for patellofemoral stress syndrome for the left knee because, while there were complaints regarding and treatment for the left knee in service, this was shown to be a temporary condition which resolved with treatment and no permanent residual disability was shown on VA examination.  

VA treatment records dated from January 1998 to April 2000 include a complaint of aching knees in April 2000.  

On VA general medical examination in August 2000, the Veteran described the gradual onset of crunching, cracking, and popping of his knees during service.  He reported that he was a parachute jumper in service and had difficulties with his knees.  Examination of the left knee revealed very mild crepitus with no limitation of motion.  X-ray of the left knee was negative.  The pertinent diagnosis was chondromalacia patella of both knees with no limitation of motion.  

The Veteran filed a request to reopen the claim for service connection for a left knee disorder in December 2008.  The last final and binding denial of the claim is the February 2001 rating decision denying the request to reopen the claim for service connection.  Thus, in order to reopen the claim, new and material evidence must have been submitted since the February 2001 denial.  See Evans, 9 Vet. App. at 282-3.  As discussed above, the credibility of the evidence is presumed for purposes of the "new and material" analysis.  Justus, 3 Vet. App. at 512-513.  

At the time of the February 2001 rating decision, there was evidence of complaints regarding the left knee in service, and post-service evidence of a left knee disorder; however, there was no evidence linking the Veteran's current left knee disorder to service.  

Evidence associated with the claims file since the February 2001 denial includes the report of an August 2008 VA PTSD examination, during which the Veteran reported that his knee issues began in service.  In a January 2010 form completed for SSA, the Veteran described pain in both knees, beginning in military service.  

Presumed credible under the law for the purpose of determining whether new and material evidence has been submitted, the Veteran's January 2010 report of knee pain starting in service indicates a continuity of symptomatology of left knee pain since service, which he is competent to report.  Charles v. Principi, 16 Vet. App. 370 (2002).  This report of continuity of symptomatology suggests a link between his current left knee disorder and service.  See Duenas v. Principi, 18 Vet. App. 512 (2004).

The Board acknowledges that, during VA treatment in August 2007, the Veteran reported pain in his knees since 1995 (so, beginning after service), and, in June and July 2008 forms completed for SSA, the Veteran reported that his knee pain began in December 2007.  He again reported that he started having chronic knee pain in December 2007 during an August 2008 mental status examination completed in conjunction with his claim for SSA benefits.  Nevertheless, for the purpose of determining whether new and material evidence has been submitted, the credibility of the January 2010 report of left knee pain beginning in service is presumed credible.  Justus, 3 Vet. App. at 512-513.  

Additionally, during the January 2012 hearing, the Veteran testified that he injured his left knee while parachuting in service.  He reported that these injuries occurred on more than one occasion.  He stated that, presently, his VA doctors told him that he had current degenerative disease in his knee which was the result of parachuting in service.  He reported that an opinion to that effect was in the file.  
The Court has held that the connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  However, this is only when ultimately deciding a claim on its underlying merits, not instead when making a preliminary determination of whether evidence offered is new and material to the claim, such that it in turn should be reopened.  

The January 2010 SSA form and the Veteran's January 2012 report that his doctors had told him that he had current degenerative disease in his knee which was the result of parachuting in service are new.  They are also material in that they specifically relate to an unestablished fact necessary to substantiate the claim for service connection, that is, a relationship between a current left knee disorder and service.  Considering the Court's holding in Shade, the Board finds that this evidence raises a reasonable possibility of substantiating the claim for service connection.  Thus, this claim must be reopened.

Therefore, as new and material evidence has been received, the claim for service connection for a left knee disorder is reopened.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.


Factual Background and Analysis - Service Connection

The Veteran is seeking service connection for disorders of the left index finger and left thumb.  

As an initial matter, the Board recognizes that the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War.  As a Persian Gulf Veteran, compensation may be established for objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent prior to December 31, 2016 and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2012).

A "qualifying chronic disability" includes: undiagnosed illness and or medically unexplained chronic multi symptom illnesses such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i).

Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).

Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period will be considered chronic.  The six month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

As will be discussed below, the Veteran's complaints regarding his left index finger and left thumb are part and parcel of a known diagnosis, cervical radiculopathy, which is also an issue presently on appeal.  Because the complaints regarding the Veteran's left index finger and left thumb have been attributed to a known diagnosis, the regulations regarding the presumptions for undiagnosed illness for Persian Gulf War veterans are not for application.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  

Instead, the criteria for establishing direct service connection, as outlined above, are for consideration.  To reiterate, to establish service connection, 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).  Walker, 708 F.3d at 1333.  

Considering the pertinent evidence of record in light of the law, the Board finds that the preponderance of the evidence is against the claims and service connection for left index finger and left thumb disorders is not warranted. 

Service treatment records reflect that the Veteran was seen in November 1990 for a hyperextension injury to the left thumb incurred while playing basketball.  X-ray was within normal limits.  The assessment was ulnar collateral ligament strain.  The Veteran was examined on enlistment in the National Guard on January 28, 1994.  At that time, he denied ever having or currently having swollen or painful joints, arthritis, rheumatism, or bursitis, a bone, joint, or other deformity, or neuritis.  Clinical evaluation of the upper extremities was normal.  

On VA examination in March 1994, the Veteran gave a history of a hyperextension injury to his left thumb while playing basketball in November 1990.  He denied any current complaints regarding the left thumb.  Examination of the hands was normal.  The pertinent diagnosis was history of a hyperextension injury of the left thumb with a strain of the ulnar collateral ligament.  The examiner commented that this had resolved with no residuals.  

On VA general medical examination in August 2000, the Veteran described the onset of left index finger pain two weeks earlier.  He stated that the pain was in the metacarpal phalangeal and proximal interphalangeal joints.  He reported that while he could flex and straighten the finger, it felt weak.  Examination revealed full range of motion of the left index finger with some weakness due to pain.  X-ray of the left hand was negative.  The pertinent diagnosis was painful left index finger for two weeks, etiology not determined, some weakness due to pain.  

In December 2000, the Veteran underwent another VA examination so that the examiner could clarify whether there was a diagnosed condition to account for the Veteran's complaints of pain in the left index finger.  The Veteran reported very little difference in his condition as compared to during the August 2000 examination.  On examination, the left index finger had full range of motion and no crepitus.  The pertinent diagnosis no abnormality of the left index finger on examination.  The Veteran reiterated that he had pain and swelling in the left index finger from time to time, although this was not present on examination.  The assessment was sprain of the left index finger with residual pain.  

During VA treatment in September 2008, the Veteran complained of numbness, tingling, and locking of the left index finger and thumb.  He reported that he had numbness in the bilateral upper extremities which radiated from the upper arms to the fingers, worse on the left than the right.  The pertinent assessment was cervical radiculopathy/neuropathy.  

During an August 2008 VA PTSD examination, the Veteran reported that his thumb issue began in service.  He described thumb pain and reported that the thumb locked and had a very decreased range of motion.  

On VA spine examination in June 2009 the Veteran described numbness in his left thumb and index finger.  

In a form completed for SSA in July 2008, the Veteran described chronic pain in his knee and lower back beginning in December 2007 and stated that it had spread to his left index finger and thumb.  In another form completed in January 2010, the Veteran described pain in his neck/shoulder and stated that it spread to his left thumb and index finger.  

During VA treatment in January 2011, the Veteran reported hand swelling which was, reportedly according to neurology, secondary to DDD of the cervical spine.  He reported arthralgia, cervicalgia, and paresthesia/neuresthesia in the hands on review of systems.  Examination revealed swelling of the fingers, bilaterally, with decreased range of motion.  The pertinent assessment was degeneration of the cervical intervertebral disc.  

During the January 2012 hearing, the Veteran testified that he injured his left thumb more than once during service.  He added that his left wrist and index finger were treated in service when he came down wrong on a jump and he jammed them.  He stated that both his left wrist and thumb normally locked up together, but then clarified that it was his left thumb and index finger which locked up.  He added that his left thumb and index finger locked up because he injured them during service, and he continued to have problems with them.  The Veteran reported that his VA physicians had told him that his problems were related to the degenerated disc which ran from his shoulders down to the fingers.  The Veteran responded affirmatively to the question of whether his left wrist and index finger disorders were residuals of his DDD of the cervical spine, adding that his doctor said it was his spine injury which was causing the numbness in his fingers and joints.  The Veteran testified that, while his fingers were injured in service, his doctor had told him that it was his spine injury which was currently causing his fingers to lock up. The Veteran indicated that his problems with the left index finger and thumb had been sustained as a result of parachute jumping and continued to the present.   

An April 2012 VA physical therapy consultation report reflects that the Veteran had neck pain with left upper extremity radiculopathy for two years, gradually worsening.  He denied trauma, but reported an insidious onset.  He described pain in his left upper extremity to his hand and stated that his fingers locked up.  In August 2012, the Veteran presented with complaints including hand edema for a week.  The pertinent impression was edema and the Veteran was instructed to follow a low sodium diet.  

The Veteran was afforded a VA examination to evaluate his claimed left thumb and index finger disorders in November 2012.  In response to the question of whether the Veteran ever had or had a hand or finger condition, the examiner stated that he had a left hand sprain.  In describing the history of the Veteran's had condition, the examiner stated that he had had numerous hand sprains throughout life, but none which required formal treatment.  On examination, there was no limitation of motion or evidence of painful motion for any finger or thumb.  The examiner stated that imaging studies of the hands did not reveal abnormal findings.  Indeed, a left hand X-ray taken in conjunction with the examination revealed no acute abnormality.  

Because the November 2012 VA examiner did not provide an etiological opinion regarding the Veteran's claimed left thumb and index finger disorders, in February 2013, another VA examiner reviewed the claims file, including the November 2012 VA examination report, and observed that the Veteran was diagnosed with a hand sprain on his November 2012 VA examination, but no disability was associated with this diagnosis (as there was normal range of motion and no noted functional impairment).  The examiner stated that he had noted the Veteran's complaints regarding his hands as documented during treatment in September 2008 and as discussed during the January 2012 hearing; however, he had been diagnosed with cervical radiculopathy in 2008 and his complaints were most consistent with cervical radiculopathy.  The examiner further noted that MRI results confirmed that the Veteran had DDD of the cervical spine.  Therefore, he opined, the Veteran's left thumb and index finger sprains were not related to any in-service injury or event.  The examiner added that there was no request for an opinion regarding the Veteran's cervical spine disability, so none would be provided.  

The foregoing evidence reflects that the Veteran's current complaints regarding the left index finger and thumb, including pain, numbness, tingling, locking, and swelling, are part and parcel of his diagnosed cervical radiculopathy.  There is no indication that he has any other disability of the left index finger or thumb.  

In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

The February 2013 VA examiner reviewed the claims file and opined that the Veteran's complaints in regard to his left index finger and thumb are most consistent with cervical radiculopathy.  This opinion is highly probative of the question of whether the Veteran's symptoms in the left index finger and thumb are manifestations of his diagnosed cervical radiculopathy or are separate and distinct disorders.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  The examiner formed his opinion based on review of the record and supported his opinion by noting that MRI results confirmed that the Veteran did have DDD of the cervical spine.  

The February 2013 opinion is supported by the September 2008 diagnosis of cervical radiculopathy/neuropathy and the January 2011 diagnosis of degeneration of the cervical intervertebral disc.  The conclusion that the Veteran's complaints regarding his left index finger and thumb are part and parcel of his cervical radiculopathy is supported by his own testimony during the January 2012 hearing.  

The Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and are within the realm of his or her personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition).  Lay evidence also may be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer.  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this axiom in a claim for rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  

Here the Veteran has described, as he is competent to do, symptoms of pain, numbness, tingling, locking, and swelling in the left index finger and thumb.  However, the probative medical evidence indicates that his symptoms are part and parcel of his cervical radiculopathy.  The claim for service connection for upper extremity radiculopathy, associated with the claimed cervical spine disorder, is also presently on appeal and will be considered on remand.  In light of the possibility that service connection may be awarded for this cervical spine disorder, including associated radiculopathy, subsequent to the development ordered herein, consideration of service connection for a left index finger disorder and a left thumb disorder, as separate and distinct disabilities, is not appropriate.  See 38 C.F.R. § 4.14, VA's anti-pyramiding regulation (precluding the evaluation of the "same disability" or the "same manifestation" under various diagnoses); versus Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, as this would overcompensate the Veteran for his actual impairment in earning capacity, it is possible for a Veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). 

However, in readjudicating the claim for service-connection for a cervical spine disorder, including associated upper extremity radiculopathy, the AMC/RO is to take into consideration the evidence regarding symptoms affecting the Veteran's left index finger and left thumb.  

For these reasons and bases, service connection for a left index finger disorder and a left thumb disorder, as separate and distinct from cervical radiculopathy, must be denied.  As the preponderance of the evidence weighs against these claims, the benefit of the doubt doctrine is inapplicable, and the claims for service connection must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Factual Background and Analysis - Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).
 
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).  

Although 38 C.F.R. § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 CF.R. § 4.59.  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases where there is arthritis).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  See 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell, 25 Vet. App. at 43, quoting 38 C.F.R. § 4.40.

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

In a February 2001 rating decision, the RO granted service connection and assigned initial 10 percent ratings for chondromalacia of the right knee and for a low back injury with residual tenderness in the lumbar paravertebral muscle area, pursuant to Diagnostic Codes 5099-5262 and 5295, respectively.  In an August 2008 rating decision, the RO continued the 10 percent ratings for these disabilities.  In December 2008, the Veteran filed his current claim for increased ratings.  In the June 2009 rating decision, the RO denied ratings in excess of 10 percent for the right knee and low back disabilities; rather, the 10 percent ratings, pursuant to Diagnostic Codes 5260 and 5237, respectively, were continued.  

Right Knee Disability

The Veteran is currently in receipt of a 10 percent rating for his right knee disability, pursuant to Diagnostic Code 5260.    

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II.

The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004).

Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

VA's General Counsel has held that a veteran who has arthritis and instability in his knees may receive separate ratings under Diagnostic Codes 5003 and 5257.  See VAOPGCPREC 23-97 (1997).  The VA General Counsel subsequently held that separate ratings are only warranted in these types of cases when a veteran has limitation of motion in his knees to at least meet the criteria for a zero-percent rating under Diagnostic Codes 5260 or 5261, or (consistent with DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) and 38 C.F.R. §§ 4.45 and 4.59) where there is probative evidence showing the veteran experiences painful motion attributable to his arthritis.  See VAOPGCPREC 9-98 (1998).

The Veteran was afforded a VA joints examination to evaluate his right knee disability in March 2008.  He denied the use of an assistive aid for walking, but noted functional limitations on walking in that he was able to walk a quarter mile.  He also noted functional limitations on standing in that he was able to stand up to one hour.  He reported giving way and pain in the right knee, but denied instability, stiffness, weakness, episodes of dislocation or subluxation, locking, effusion, inflammation, or flare-ups of joint disease.  On examination, gait was normal.  Right knee flexion was from 0 to 135 degrees, with pain beginning at 135 degrees.  Right knee extension was normal to 0 degrees.  No pain was noted.  There was no additional limitation of motion in either flexion or extension on repetitive use.  The examiner commented that there was no instability, patellar abnormality, or meniscus abnormality.  The examiner noted that a January 2008 MRI of the right knee revealed no effusion.  There was a small degenerative cyst of the posterior tibial spine with some surrounding stressed edema, but the rest of the examination was unremarkable.  X-rays revealed normal knees, bilaterally.  The diagnosis was right knee chondromalacia.  The examiner commented that this condition prevented the Veteran's participation in sports and severely affected his ability to exercise.  

VA treatment records dated from August 2007 to January 2008 include complaints regarding and treatment for knee pain.  Examination of the knees in January 2008 revealed right pre-patellar bursa swelling and medial collateral laxity.  X-rays revealed normal bilateral knees.  In February 2008, he again complained of knee pain.  Examination of the extremities revealed full range of motion.  Later that month, he returned with continued complaints of right knee pain.  He reported that his right knee did not lock or pop, but did give way.  Examination revealed mild effusion but range of motion was within functional limits.  

In a March 2008 statement, the Veteran reported that he worked as a truck driver and his knee pain was worsened by having to climb in and out of his truck.  

During VA treatment in September 2008 the Veteran reported right knee pain and stated that his right knee occasionally locked after sitting or standing for a while.  During mental health treatment in November 2008, the Veteran reported that he occasionally fell when his knee gave way.  A right knee X-ray taken that month was normal.  In December 2008, the Veteran was issued a right knee brace.  In February 2009, the Veteran was issued a standard single point cane to assist in ambulation during knee pain flare-ups.  

An April 2009 evaluation in conjunction with the Veteran's claim for SSA benefits includes his report of the right knee frequently giving way, and he stated that he had to use a cane anytime he was away from his house.  There was full range of motion in all lower extremity joints.  

The Veteran was afforded a VA joints examination in June 2009.  He reported giving way and pain in both knees, but denied deformity, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, effusions, symptoms of inflammation, and flare-ups of joint disease.  He reported that he was able to stand for 15 to 30 minutes and was able to walk a quarter mile.  He reported that he used a cane intermittently but frequently.  On examination, gait was antalgic and there was tenderness of both knees, but there was no crepitation, clicks or snaps, grinding, instability, a patellar abnormality, or a meniscus abnormality.  Range of motion testing revealed right knee flexion from 0 to 105 degrees with normal extension to 0 degrees.  There was no objective evidence of pain with active motion on the right, nor was there objective evidence of pain or additional limitations following repetitive motion.  The examiner reviewed the January 2008 right knee MRI.  He observed that the Veteran had retired from his work as a truck driver in 2007 due to his knee and back.  The pertinent diagnosis was small degenerative cyst of the right posterior tibial spine.  

The Veteran was evaluated at the Murfreesboro VAMC following a motor vehicle accident in December 2009.  At that time, examination of the extremities revealed range of motion and musculature within normal limits.  There was no joint swelling or crepitus.  

During the January 2012 hearing, the Veteran testified that his right knee sometimes gave way when he was trying to walk and do things.  He added that he had a cane because his right knee was unstable.  He also described right knee pain, ranging from 5 to 8 on a scale of 1 to 10.  He stated that he had been told he had bursitis, but not necessarily arthritis, in the right knee.  

The Veteran was afforded a VA knee examination in November 2012.  In response to the question of whether the Veteran had or had ever had a knee condition, the examiner responded that he had degenerative joint disease (DJD) of the bilateral knees.  In describing the history of the Veteran's knee condition, the examiner noted that he complained of intermittent bilateral knee pain over the last few years, with no major trauma.  He reported that flare-ups did not impact the function of his knee.  Range of motion testing of the right knee revealed flexion to 120 degrees, with pain beginning at that point.  Extension was to 0 degrees, with no objective evidence of painful motion.  There was no additional limitation of motion after repetitive use testing.  There was, however, functional loss after repetitive use testing, specifically, less movement than normal and pain on movement, bilaterally.  Both knees were tender to palpation.  Muscle strength testing for both flexion and extension was normal, bilaterally.  Joint stability tests in regard to the right knee were normal and the examiner commented that there was no evidence or history of recurrent patellar subluxation or dislocation.  He further noted that the Veteran had not had any meniscal conditions or surgical procedures for a meniscal condition.  The examiner did note that the Veteran occasionally used a soft brace, bilaterally, as needed.  

The examiner stated that imaging studies did not document degenerative or traumatic arthritis, nor was there X-ray evidence of patellar subluxation.  Indeed, X-rays taken in conjunction with the examination revealed no acute abnormality of the knees, bilaterally.  The examiner opined that the Veteran's knee condition did not impact his ability to work.  

Considering the pertinent evidence of record in light of the law, a rating in excess of 10 percent for the Veteran's right knee disability is not warranted. 

There is no indication of flexion limited to 30 degrees, as required for an increased, 20 percent rating based on limitation of flexion pursuant to Diagnostic Code 5260.  Rather, the pertinent evidence reflects that the Veteran has had right knee flexion limited to no less than 105 degrees and there has been no limitation of extension.  Accordingly, a rating in excess of 10 percent based on limitation of flexion or extension is note warranted.  This evidence also provides no basis for assignment of separate ratings for limited flexion and extension.  See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).  The Board points out that, given the evidence of limited-albeit noncompensable-right knee motion, and complaints of pain, the 10 percent rating assigned is consistent with the provisions of 38 C.F.R. §§ 4.40 and 4.45, DeLuca, as well as the intention of the rating schedule, to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59.  However, no higher rating is assignable.

The Board has considered the Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, and recognizes that the Veteran has consistently complained of right knee pain.  However, as discussed above, pain itself does not rise to the level of functional loss.  See Mitchell, 25 Vet. App. at 38.  Even considering pain, there is no indication that functional impairment resulted in limitation of motion as required for a rating in excess of 10 percent.  Rather, the Veteran himself denied right knee weakness on VA examination in March 2008, and denied right knee weakness and incoordination on VA examination in June 2009.  There was also no additional limitation of motion in either flexion or extension on repetitive use on VA examinations in March 2008, June 2009, and November 2012.  While the November 2012 VA examiner noted that there was functional loss after repetitive use testing, this function loss consisted of less movement than normal and pain on movement.  However, this same examiner indicated that the Veteran had no additional limitation of motion, so, this statement appears to only indicate that the Veteran had less movement than normal in that right knee flexion was limited to 120 degrees.  Further, as previously discussed, pain alone does not rise to the level of functional loss.  

The Board has considered the Veteran's reports of his right knee giving way and his January 2012 testimony that he had a cane because his right knee was unstable.  While, as stated above, a veteran who has arthritis and instability in his knees may receive separate ratings under Diagnostic Codes 5003 and 5257, arthritis has not been diagnosed in this case.  Notwithstanding the November 2012 VA examiner reporting that the Veteran had been diagnosed with DJD of the knees, X-ray studies of the right knee have not revealed arthritis.  Indeed, the very same VA examiner commented that imaging studies did not document degenerative or traumatic arthritis and X-rays taken in conjunction with the examination revealed no acute abnormality of the knees, bilaterally.  

Moreover, the weight of the competent evidence reflects that the Veteran's right knee disability is not manifested by recurrent subluxation or lateral instability.  In this regard, while a January 2008 VA treatment record documents medial collateral laxity, the Veteran himself denied instability and episodes of dislocation or subluxation on VA examinations in March 2008 and June 2009, and the VA examiners found no instability on examination.  Although the Veteran testified during his January 2012 hearing that he had a cane because his right knee was unstable, the November 2012 VA examiner found joint stability tests in regard to the right knee to be normal, stated that there was no X-ray evidence of patellar subluxation, and commented that there was no evidence or history of recurrent patellar subluxation or dislocation.  In light of the foregoing, an increased rating pursuant to Diagnostic Code 5257 is not warranted.  

The Board acknowledges that a February 2008 VA treatment record notes mild right knee effusion and the Veteran reported occasional right knee locking during VA treatment in September 2008.  However, he subsequently denied locking and effusions during VA examination in June 2009.  Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  Semilunar cartilage is defined externally as the meniscus lateralis articulationis genus (lateral meniscus) and internally as the meniscus medialis articulationis genus (medial meniscus).  See Dorland's Illustrated Medical Dictionary 273, 1013 (28th ed. 1994).  Despite the February 2008 finding of mild effusion, there is no evidence of dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint.  In this regard, the November 2012 VA examiner specifically commented that the Veteran had not had any meniscal conditions.  Accordingly, an increased rating pursuant to Diagnostic Code 5258 is not warranted.  

Moreover, no other potentially applicable diagnostic code provides a basis for assignment of a rating in excess of 10 percent for the right knee disability.  As it is neither contended nor shown that the Veteran's right knee disability involves ankylosis or impairment of the tibia and fibula, rating of the disability under the Diagnostic Codes evaluating these disabilities is not warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262.

Under these circumstances, the Board finds that the record presents no basis for assignment of a rating in excess of 10 percent for the service-connected right knee disability, under the applicable rating criteria. 


Low back disability

As stated above, the RO continued the 10 percent rating for the Veteran's low back disability in June 2009 rating decision pursuant to Diagnostic Code 5237.    

However, the actual criteria for rating disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine.  That formula provides for assignment of a rating of 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion for the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm or guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  The next higher rating of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine.  A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine.  38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V.

The Veteran was afforded a VA spine examination to evaluate his low back disability in March 2008.  He denied numbness, paresthesias, and leg or foot weakness.  He described constant sharp pain in his low back, but stated that this pain did not radiate.  He denied fatigue, decreased motion, stiffness, weakness, and spasms.  Examination of the thoracic sacrospinalis revealed no spasm, atrophy, guarding, or weakness, although there was pain with motion and tenderness.  There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour.  The Veteran's posture and gait were normal and examination revealed no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis.  Motor examination revealed muscle strength to be 5/5 in all muscles tested.  Muscle tone was described as normal and there was no muscle atrophy.  Sensory examination of the lower extremities was normal.  Reflexes were normal.  

Range of motion testing of the thoracolumbar spine revealed flexion from 0 to 90 degrees, with pain beginning at 85 degrees.  There was pain after repetitive use and the examiner commented that there was additional loss of motion after repetitive use, with flexion from 0 to 85 degrees.  Pain was described as the factor most responsible for the additional loss of motion on repetitive use.  Extension was from 0 to 30 degrees, with pain at 30 degrees.  Lateral flexion was from 0 to 30 degrees, with pain beginning at 30 degrees, bilaterally.  Lateral rotation was from 0 to 45 degrees, with pain beginning at 45 degrees, bilaterally.  There was pain after repetitive use in extension, lateral flexion, and lateral rotation, but there was no additional loss of motion after repetitive use in extension any of these areas.  MRI of the lumbar spine revealed normal vertebral body height, alignment, and signal intensity.  There was no evidence of disc herniation or significant spinal or neural foraminal stenosis.   The diagnosis was low back strain.  The examiner commented that this prevented the Veteran's participation in sports and severely affected his ability to exercise.  The examiner also noted that the Veteran had been on a medical leave of absence from his employment since December 2007 due to back and knee pain.  

VA treatment records dated from August 2007 to January 2008 include complaints regarding and treatment for back pain.  The Veteran was seen in the emergency room for back pain in December 2007.  There was full range of motion with a painful sensation in the lumbar spine.  In January 2008, the Veteran described intermittent low back pain which radiated down his legs when exacerbated.  X-ray revealed a normal lumbar spine.  MRI of the lumbar spine was also normal.  In February 2008, the Veteran presented with complaints of low back pain, stating that his back had "locked up" when he got out of his truck in December 2007.  On examination gait and posture were normal.  Forward flexion was reduced by 50 percent with pain.  All other ranges of motion were within functional limits.  

In a March 2008 statement, the Veteran reported that he worked as a truck driver and his back pain was worsened by having to climb in and out of his truck.  

During VA treatment in January 2009, the Veteran complained of back pain and decreased range of motion following a motor vehicle accident four days earlier.  He denied arthralgias and paresthesias on review of systems.  In February 2009 the Veteran complained of back pain but again denied arthralgias and paresthesias.  There was mild lumbar tenderness to palpation.  

An April 2009 evaluation in conjunction with the Veteran's claim for SSA benefits reflects that the Veteran had normal spinal curvature and full range of motion in the lumbar spine.  Deep tendon reflexes were 2+ and active and equal, bilaterally, in the lower extremities.  

The Veteran was afforded a VA spine examination in June 2009.  He reported a history of numbness, but denied paresthesias and leg or foot weakness.  Specifically, he described numbness in his left thumb and index finger.  He denied a history of fatigue, decreased motion, stiffness, weakness, and spasms, but reported constant pain in the neck and low back.  He denied incapacitating episodes of spine disease.  The Veteran reported that he was limited to walking a quarter mile.  On examination, posture was normal but gait was antalgic.  There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis.  Objective examination of the thoracic sacrospinalis revealed bilateral tenderness but no spasm, atrophy, guarding, pain with motion, or weakness.  The examiner commented that the tenderness was not severe enough to be responsible for an abnormal gait or abnormal spinal contour.  Detailed motor examination revealed strength to be 5/5 in the lower extremities.  Muscle tone was normal and there was no atrophy.  Detailed sensory examination of the lower extremities was normal, with no evidence of abnormal sensation.  Detailed reflex examination was also normal in the lower extremities.  

Range of motion testing of the thoracolumbar spine revealed flexion from 0 to 85 degrees and extension from 0 to 30 degrees.  Lateral flexion and rotation were each from 0 to 30 degrees, bilaterally.  There was no objective evidence of pain on active range of motion.  There was also no objective evidence of pain or additional limitations after repetitive motion.  The examiner reviewed a January 2008 MRI as well as a January 2008 X-ray of the lumbar spine.  The pertinent diagnosis was lumbar spine pain.  The examiner commented that the Veteran's lumbar spine pain and DDD of the cervical spine prevented sports and severely affected his ability to exercise.  

The Veteran was evaluated at the Murfreesboro VAMC following a motor vehicle accident in December 2009.  At that time, examination of the back revealed normal curvature with muscle masses and range of motion within normal limits.  There was no tenderness elicited.  Deep tendon reflexes were 2+ bilaterally, muscle strength was within normal limits, and sensation was intact.    During treatment in the neurology clinic in October 2010, the Veteran reported low back pain which radiated to the lower extremity.  On examination, strength was intact in the lower extremities.  Deep tendon reflexes were 2+ and symmetrical.  Sensory examination was intact.  

An April 2011 record of treatment from the neurology clinic reflects that the Veteran continued to experience back pain radiating to the lower extremity.  The physician noted that lumbar MRI had been reported as normal in the past and there was no weakness, permanent paresthesias, or bladder or bowel dysfunction.  On examination, strength was intact in the lower extremities.  Deep tendon reflexes were 2+ and symmetrical.  Sensory examination was intact.  

During the January 2012 hearing, the Veteran testified that his low back prevented prolonged sitting or other activity.  He described pain at a level of 9 on a 1 to 10 scale.  He stated that he had been prescribed bed rest by his VA physician, who told him that, when he felt bad, he should put heat on his back and lay down, or use his heating pad, TENS unit, and stretching machine.  The Veteran reported that he had been told to rest his back whenever it bothered him, which depended on the weather and other factors.  

VA treatment records dated from August 2011 to September 2012 document complaints of low back pain, with the Veteran denying radiation of the pain, in December 2011, March 2012, and August 2012.  An April 2012 MRI of the lumbar spine was negative.  

The Veteran was afforded a VA examination to evaluate his low back disability in November 2012.  The examiner noted that the Veteran had lumbar strain and complained of intermittent low back pain since 1981.  He also reported mild bilateral radiculopathy to the hip area, right more than left.  The Veteran denied that flare-ups impacted the function of his thoracolumbar spine.  Range of motion testing of the thoracolumbar spine revealed flexion to 90 degrees or more, with painful motion beginning at that point.  Extension was to 30 degrees or more, with painful motion beginning at that point.  Right and left lateral flexion and right and left lateral rotation were each to 30 degrees or more, with painful motion beginning at 30 degrees or more.  There was no additional limitation of motion after repetitive use testing.  The examiner commented that the Veteran did have functional loss after repetitive use testing, specifically, pain on movement.  There was no localized tenderness or pain to palpation, nor was there guarding or muscle spasm.  

Muscle strength testing reveled muscle strength to be 5/5 (normal) in all muscles tested.  Deep tendon reflexes at the knees and ankles were normal, bilaterally.  Sensory examination revealed normal sensation to light touch in the upper anterior thighs, thighs/knees, lower legs/ankles, and feet/toes.  The straight leg raising test was negative, bilaterally.  The examiner found that the Veteran did have signs and symptoms due to radiculopathy.  Specifically, he had mild paresthesias and/or dysesthesias in the right and left lower extremities.  There were no other signs or symptoms of radiculopathy, including pain and numbness.  The examiner stated that the nerve involved was the sciatic nerve, both on the right and left, and described the severity of the Veteran's radiculopathy as mild, bilaterally.  There were no other neurologic abnormalities or findings related to the thoracolumbar spine disability.  

The examiner stated that the Veteran did not have IVDS of the thoracolumbar spine, nor did he use any assistive device as a normal mode of locomotion.  The examiner noted that arthritis had not been documented on imaging studies of the thoracolumbar spine.  Indeed, X-ray at the time of examination revealed no acute abnormality, only minimal osteophytes at L5.  The examiner opined that the Veteran's thoracolumbar spine disability did not impact his ability to work.

Considering the pertinent evidence of record in light of the law, a rating in excess of 10 percent for the Veteran's low back disability is not warranted; however, separate 10 percent ratings for radiculopathy affecting the right and left lower extremities are warranted.   

As the foregoing indicates, the service-connected low back disability has not been manifested by forward flexion greater than 30 degrees but not greater than 60 degrees, or combined range of motion not greater than 120 degrees.  Rather, the pertinent evidence reflects forward flexion limited to no less than 85 degrees, as documented on VA examination in June 2009.  Of note, flexion was full on VA examinations in March 2008 and November 2012.  Back range of motion was also full during VA treatment in December 2007 and December 2009 and during the April 2009 evaluation in conjunction with the Veteran's SSA claim.  There is, additionally, no evidence of combined range of motion of the thoracolumbar spine to 120 degrees or less; rather, even considering pain, combined range of motion was 270 degrees on VA examination in March 2008, 235 degrees on VA examination in June 2009, and 240 degrees on VA examination in November 2012.    

The Board has carefully considered the February 2008 treatment record reflecting that forward flexion was reduced by 50 percent with pain, which could, possibly, be interpreted as indicating that the Veteran had only 50 percent of forward flexion (which would equate to flexion to 45 degrees, consistent with the criteria for a 20 percent rating); however, the Board finds that this note, "ff decreased 50% +pain" is more accurately read as reflecting the point at which pain began during range of motion testing-at 50 percent of full range of motion.  The Board's interpretation of this treatment record is supported by the fact that flexion was to 90 degrees on VA examination in March 2008, less than one month later.  

The Board has considered the Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, and recognizes that the Veteran has consistently complained of back pain, and the March 2008 VA examination report documented pain beginning at 85 degrees of flexion, with pain after repetitive use resulting in flexion limited to 85 degrees.  More recently, the November 2012 VA examination report indicates that the Veteran had functional loss after repetitive use testing, in that there was pain on movement; however, there was no additional limitation of motion after repetitive use testing.  As discussed above, pain itself does not rise to the level of functional loss.  See Mitchell, 25 Vet. App. at 38.  

While the above discussed February 2008 VA treatment record indicates that flexion was reduced to 50 percent due to pain on the date of treatment the criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching or stiffness in the area of the spine involved.  Here, as regards functional impairment, forward flexion has not been shown to be limited to 60 degrees or less, as required for the next higher, 20 percent rating.  Of note, the Veteran himself denied fatigue and weakness on VA examinations in March 2008 and June 2009.  The June 2009 VA examination revealed no objective evidence of pain or additional limitations after repetitive motion. 

In addition, there is no evidence of muscle spasm, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal contour.  Rather, the March 2008 VA examiner specifically commented that there was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour.  While mild lumbar tenderness to palpation was noted during VA treatment in February 2009, and examination of the thoracic sacrospinalis during the June 2009 VA examination revealed bilateral tenderness, there was no spasm, atrophy, guarding, pain with motion, or weakness on VA examination in June 2009.  The VA examiner commented that the tenderness was not severe enough to be responsible for an abnormal gait or abnormal spinal contour.  Most recently, the November 2012 VA examination revealed no localized tenderness, guarding, or muscle spasm.  

In light of the foregoing, the Board finds that the criteria for a rating in excess of 10 percent for the service-connected low back disability are not met.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

However, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the service-connected low back disability.  Neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis or neuralgia in proportion to the impairment of motor or sensory function.  See 38 C.F.R. § 4.124a.  

During VA treatment in January 2008, the Veteran described intermittent low back pain which radiated down his legs when exacerbated.  However, he then denied numbness and paresthesias during his March 2008 VA spine examination, and reported at that time that his low back pain did not radiate.  Motor, sensory, and reflex examinations during that VA examination were normal.  He denied paresthesias during VA treatment in January and February 2009.  While he gave a history of numbness during the June 2009 VA examination, he described numbness in his left thumb and index finger, and denied paresthesias and leg or foot weakness.  At the time of that VA examination, motor, sensory, and reflex examinations of the lower extremities were normal.  

Deep tendon reflexes, muscle strength, and sensation were also normal when evaluated during VA treatment in December 2009.  In October 2010, the Veteran reported that his low back pain radiated to the lower extremity.  Strength was intact in the lower extremities, deep tendon reflexes were normal, and sensation was intact.  An April 2011 VA treatment record documents that the Veteran continued to experience back pain radiating to the lower extremities, although the physician noted that lumbar MRI had been reported as normal in the past and there was no weakness or permanent paresthesias.  As was the case in October 2010, strength was intact in the lower extremities, deep tendon reflexes were normal, and sensation was intact.  The Veteran denied radiation of his low back pain during VA treatment in December 2011 and March and August 2012.  

Most recently, during the November 2012 VA examination, the Veteran reported mild bilateral radiculopathy to the hip area, right more than left.  Muscle strength testing, deep tendon reflexes, and sensory examination in regard to the lower extremities were, again, normal, and the straight leg raising test was negative, bilaterally.  Nevertheless, the examiner found that the Veteran did have signs and symptoms due to radiculopathy; specifically, mild paresthesias and/or dysesthesias in the right and left lower extremities.  There were no other signs or symptoms of radiculopathy, including pain and numbness.  

Despite the normal examination findings in regard to muscle strength, reflexes, and sensation in regard to the lower extremities, and the Veteran's differing reports on different dates as to whether or not his low back pain radiates, in light of the November 2012 VA examiner's finding that he does, indeed, have signs and symptoms due to radiculopathy in the lower extremities, with involvement of the sciatic nerve, the Board finds that, resolving any reasonable doubt in the Veteran's favor, separate ratings for these neurological manifestations of the service-connected low back disability are warranted.  

Incomplete paralysis of the sciatic nerve is rated pursuant to Diagnostic Code 8520.  Under this diagnostic code, incomplete paralysis of the sciatic nerve which is mild, moderate, moderately severe, and severe, with marked muscular atrophy, warrants ratings of 10, 20, 40, and 60 percent, respectively.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  

The November 2012 VA examiner described the severity of the Veteran's radiculopathy as mild, bilaterally.  As indicated above, motor examination, muscle strength, sensory examinations, and reflexes in the lower extremities have repeatedly been normal.  Accordingly, the Board finds that, while 10 percent ratings for mild radiculopathy affecting the right and left lower extremities are warranted, as these neurological manifestations are no worse than mild, ratings in excess of 10 percent are not warranted.  38 C.F.R. § 4.124a, Diagnostic Code 8520.   

Further, there is no medical evidence that the Veteran's service-connected low back disability should be rated more than 10 percent disabling pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes.  According to this formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Higher ratings are warranted for incapacitating episodes of longer durations.  For purposes of evaluation, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

The medical evidence does not reflect that the Veteran's service-connected low back disability involves IVDS.  Indeed, the November 2012 VA examiner specifically indicated that the Veteran does not have IVDS of the thoracolumbar spine.  Moreover, even if his disability were to be evaluated pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes, the evidence does not document any bed rest prescribed by a physician, let alone for a total period of at least two weeks during a 12-month period, as required for a higher, 20 percent, rating.  The Veteran himself denied incapacitating episodes of spine disease during the June 2009 VA examination.  The Board acknowledges the Veteran's January 2012 hearing testimony, indicating that he had been prescribed bed rest by his physician.  However, the Veteran went on to clarify that his physician had simply told him to either put heat on his back and lay down or use his heating pad, TENS unit, and stretching machine when his back bothered him.  There is simply no evidence of IVDS requiring physician-prescribed bed rest.  As such, a higher rating is not assignable on the basis of incapacitating episodes.  

Under these circumstances, the Board finds that, resolving all reasonable doubt in the Veteran's favor, the criteria for separate 10 percent ratings, but no higher, for radiculopathy affecting the right and left lower extremities are met, but that the record presents no basis for assignment of a rating in excess of 10 percent for the service-connected low back disability, under the applicable rating criteria. 


Extra-schedular Consideration

The above determinations are based upon consideration of pertinent provisions of VA's rating schedule.  Neither the Veteran's right knee nor his low back disability has been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996).  

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. 
§ 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that the schedular criteria are adequate to rate the service-connected right knee and low back disabilities.  The rating schedule contemplates the described symptomatology of painful and limited motion of the right knee and pain and limited motion of the low back, as well as neurological manifestations of that disability (radiculopathy), and allows for higher disability ratings for worse symptoms.  Significantly, there is no medical indication or argument that the applicable criteria are inadequate to rate the disabilities.  The symptoms of the Veteran's service-connected right knee and low back disabilities are adequately compensated in the disability ratings assigned.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Further, the evidence also does not indicate that either the Veteran's right knee or low back disability, alone, results in marked interference with employment above and beyond that considered by the assigned disability ratings or that there have been frequent periods of hospitalization.  In this regard, in February 2008, the Veteran's physician filled out paperwork regarding the Veteran's claim for short-term disability in which he indicated that the Veteran would need to be absent from work due to osteoarthritis and depression; however, the physician reported that he was able to do light work activity (exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently), for six hours per day four days per week.  The record reflects that the Veteran was terminated from his employment as a truck driver in April 2008 after exhausting his leave.  An April 2009 letter from Dr. H.E.W. reflects that the Veteran had stopped working as a truck driver in December 2007 because of knee, neck, and back pain.  Similarly, the June 2009 VA examiner commented that the Veteran had retired from his work as a truck driver due to his knee and back.  Most recently, the November 2012 VA examiner commented that the Veteran's right knee condition and thoracolumbar spine disabilities did not impact his ability to work.  

For the reasons discussed above, referral for consideration of an extra-schedular rating is not warranted.  

The Board has resolved reasonable doubt the Veteran's favor in determining that a separate 10 percent ratings are warranted for radiculopathy affecting the right and left lower extremities, but finds that the preponderance of the evidence is against assignment of ratings greater than 10 percent for the service-connected right knee and low back disabilities.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

New and material evidence not having been presented, the request to reopen a claim for service connection for a left wrist disorder is denied.

New and material evidence having been presented, the request to reopen a claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, is granted.

New and material evidence having been presented, the request to reopen a claim for service connection for a left knee disorder is granted.

Service connection for a left index finger disorder is denied.  

Service connection for a left thumb disorder is denied.

An increased rating for a right knee disability, diagnosed as chondromalacia of the right knee, currently rated as 10-percent disabling, is denied.

An increased rating for a low back disability, diagnosed as low back injury with residual tenderness in the lumbar spine paravertebral muscle area, also currently rated as 10-percent disabling, is also denied.

However, a separate 10 percent rating is granted for the associated radiculopathy affecting the right lower extremity, subject to the statutes and regulations governing the payment of VA compensation.

A separate 10 percent rating is also granted for the associated radiculopathy affecting the left lower extremity, also subject to the statutes and regulations governing the payment of VA compensation.


REMAND

The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claims remaining on appeal, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration.

In regard to the reopened claim for service connection for a left knee disorder, when a claim which has previously been denied by the RO is reopened by the Board, the Board must not take any action which would prejudice the rights of the veteran.  Bernard v. Brown, 4 Vet. App. 384, 393 (1993).  The RO has not considered the Veteran's claim on the basis of all the evidence, both new and old, in order to determine whether the prior disposition of the claim should be altered.  Therefore, in order to protect the rights of the Veteran, the Board believes that the AMC/RO should be afforded an opportunity to review the Veteran's claim for entitlement to service connection on a de novo basis.  

Further, in light of the above decision reopening the claims for service connection for cervical spine and left knee disorders, on remand, the Veteran should be provided updated VCAA notice pertaining to the reopened claims.  

The Board further finds that medical opinions in regard to each of the claims remaining on appeal are warranted.  

Regarding the claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, as stated above, the Veteran's service treatment records document that he was treated for a muscle spasm in neck in October 1985.  The Veteran has asserted that he injured his neck during parachute jumps in service.  His Form DD 214 documents that his military awards include the Parachute Badge.  The Veteran is competent to report in-service injuries as a result of parachute jumps.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).  The Board finds the Veteran's report of in-service injury as a result of parachute jumps to be credible and consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154(a) (West 2002).  

Post-service VA treatment records document complaints regarding neck pain with diagnoses of DDD of the cervical spine.  Additionally, the Veteran has reported locking of his left thumb and index finger and the February 2013 VA examiner found the Veteran's complaints to be consistent with cervical radiculopathy.  

VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.) 

The Veteran was afforded a VA spine examination in June 2009, at which time he described numbness in his left thumb and index finger as well as constant pain in the neck.  The examiner opined that it was less likely than not (less than a 50/50 probability) that the Veteran's DDD of the cervical spine was caused by or a result of his military service.  In providing a rationale for this opinion, the examiner noted that the Veteran was diagnosed with a muscle spasm of the neck in October 1985 with no complaints of any neck problems on his 1994 Report of Medical History.  The examiner further observed that there was no further complaint of or treatment for a neck problem until 2008, 23 years after the in-service muscle spasm.  Therefore, the examiner concluded that it was less likely than not that the Veteran's current DDD of the cervical spine was caused by or a result of his military service.  He further commented that there was no evidence in the literature which linked soft tissue injuries to the development of arthritis.   

The Veteran has made conflicting statements regarding continuity of symptomatology of his neck pain since service.  In this regard, during VA neurology treatment in October 2010, the Veteran reported that his neck pain had been going on for the last couple of years.  In a form completed for SSA in July 2008, the Veteran described chronic neck pain beginning in January 2008.  In another form completed in January 2010, the Veteran described pain in his neck, beginning in military service.  During VA treatment in April 2012, the Veteran was described as having neck pain with left upper extremity radiculopathy for two years.  

He has also, at times, described symptoms affecting his left thumb and index finger since service.  Although the Veteran denied any current complaints regarding the left thumb on VA examination in March 1994, and described the onset of left index finger pain two weeks earlier on VA general medical examination in August 2000, the Veteran reported during an August 2008 VA PTSD examination that his thumb issue began in service.  He described thumb pain and reported that the thumb locked and had a very decreased range of motion.  More recently, during the January 2012 hearing, the Veteran asserted that his left thumb and index finger locked up because he injured them during service, and he continued to have problems with them. He asserted that his current symptoms of locking in the fingers were caused by his spine injury.  As discussed above, the Veteran's complaints regarding his left thumb and index finger have been determined to be part and parcel of cervical radiculopathy, as determined by the February 2013 VA examiner.  

The Veteran is competent to report a continuity of symptomatology.  Charles v. Principi, 16 Vet. App. 370 (2002).  The report of a continuity of symptomatology suggests a link between his current complaints regarding neck pain and locking of the left thumb and index finger and service.  See Duenas v. Principi, 18 Vet. App. 512 (2004).

In the September 2012 remand, the Board instructed that the Veteran should be afforded a VA examination to determine the nature and etiology of any current left index finger and left thumb disabilities.  As to each disability, the examiner was asked to provide an opinion as to the likelihood that the currently identified disability had its clinical onset during or is related to any in-service disease, event, or injury.  The examiner was instructed to consider and comment on the Veteran's contentions that each disability began during service, with the left index finger and left thumb disabilities being sustained during parachute jumping and continuing to the present time.  

While the Veteran's claimed cervical spine disorder was, thereafter evaluated during VA examination in November 2012; however, the examiner did not provide an etiological opinion and, more recently, the February 2013 VA examiner stated that no opinion had been requested in regard to the Veteran's cervical spine disorder, so none was being provided.  While the February 2013 VA examiner did provide an opinion regarding the etiology of the claimed left thumb and index finger disorders, his opinion that the Veteran's left thumb and left index finger disorders were not related to any in-service injury or event was based on his determination that the complaints regarding the left thumb and index finger were consistent with cervical radiculopathy.  Nevertheless, the examiner did not provide an opinion as to whether that cervical radiculopathy was related to service, nor did he comment on the Veteran's assertions that his symptoms began during service and continued to the present time.  

A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance."  Id.  When VA undertakes to provide a VA examination, the Board must ensure that such an examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007).  The Court has also held that an examination is inadequate if the examiner ignores a veteran's assertions of continuity of symptomatology.  Barr, 21 Vet. App. at 311 (finding error where "the VA examiner did not indicate whether he considered Mr. Barr's assertions of continuity of symptomatology").

While the June 2009 VA examiner provided a negative nexus opinion regarding the relationship between the Veteran's DDD of the cervical spine and service, he did not comment on the Veteran's report of locking of the left thumb and index finger since service.  In light of the Veteran's reports of symptoms affecting the left thumb and index finger since service, which have been found to be part and parcel of his cervical radiculopathy, and considering the Board's September 2012 remand instructions, the Board finds that the claims file should be returned to the February 2013 VA examiner for a supplemental medical opinion.  

Specifically, the examiner should consider and comment on the Veteran's assertions regarding his cervical spine disorder and associated upper extremity radiculopathy and should provide an opinion as to whether the Veteran's current disorder is related to or had its onset in service.  

In rendering the requested opinion, the examiner should consider and address any post-service accidents affecting the neck.  In this regard, during VA treatment in January 2009, the Veteran complained of neck pain and decreased range of motion following a motor vehicle accident four days earlier.  The record reflects that the Veteran was also in a motor vehicle accident in December 2009, after which he reported neck pain.  

As to the reopened claim for service connection for a left knee disorder, as discussed above, service treatment records document complaints regarding and treatment for bilateral knee pain in August 1984 and October 1993.  While clinical evaluation and X-ray of the left knee were normal on VA examination in March 1994, post-service VA treatment records include complaints regarding and treatment for knee pain.  The Veteran has made conflicting statements regarding continuity of symptomatology of left knee pain since service.  In this regard, he reported during VA treatment in August 2007 that he had pain in his knees since 1995 (so a year after separation from service), and, in forms completed for SSA in June and July 2008, he reported that he had pain in his knees which began in December 2007.  During an August 2008 mental status examination completed in conjunction with his claim for SSA benefits, the Veteran again reported that he started having chronic knee pain in December 2007.  However, during an August 2008 VA PTSD examination, the Veteran reported that his knee issues began in service.  In a January 2010 form completed for SSA, the Veteran described pain in both knees, beginning in military service.  

The Veteran's knees were evaluated during VA joints examination in June 2009.  He denied a history of trauma to the joints.  He reported giving way and pain in both knees, but denied deformity, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, effusions, symptoms of inflammation, and flare-ups of joint disease.  On examination, gait was antalgic and there was tenderness of both knees, but there was no crepitation, clicks or snaps, grinding, instability, a patellar abnormality, or a meniscus abnormality.  Range of motion testing revealed normal left knee flexion and extension.  The examiner reviewed the January 2008 MRI of the left knee and found that there was no objective evidence of a left knee condition.  The examiner stated that, in light of the fact that there was no current objective evidence of a left knee condition, he would not give an etiological opinion regarding that claimed disability.  

The Veteran was afforded a VA knee examination in November 2012.  In response to the question of whether the Veteran had or had ever had a knee condition, the examiner responded that he had DJD of the bilateral knees.  The examiner noted that the Veteran complained of intermittent bilateral knee pain over the last few years, with no major trauma.  This examiner did not provide an etiological opinion regarding the claimed left knee disorder.  

The Veteran received treatment for complaints regarding the bilateral knees in service, has current complaints regarding the left knee and has, at least at times, reported knee pain since service.  Because the claim must be remanded for RO adjudication of the reopened claim, on the merits, the Board finds that a medical opinion would be helpful in resolving the reopened claim for service connection.  38 U.S.C.A. § 5103A.  

As regards his claimed bilateral shoulder disorder, service treatment records do not document complaints regarding or treatment for the shoulders; however, post-service treatment records document complaints of shoulder pain.  The record also includes conflicting reports regarding continuity of symptomatology of shoulder pain since service.  During an August 2008 VA PTSD examination, the Veteran reported that his shoulder issues began in service and described daily shoulder pain.  A June 2009 VA treatment record reflects that the Veteran reported that he awoke with right shoulder pain four days earlier, but was unaware of trauma.  In October 2010, the Veteran was evaluated in the neurology clinic for his neck and left shoulder pain, which he described as going on for the last couple of years.  In a form completed for SSA in July 2008, the Veteran described chronic pain in his knee and lower back beginning in December 2007 and stated that it had spread to both shoulders.  In another form completed in January 2010, the Veteran described pain in his shoulder beginning in military service.  

During the January 2012 hearing, the Veteran indicated that his shoulders were injured during parachute jumping in service and testified that his VA physician had stated that his shoulder disorder was related to his time in service and being airborne.  

In September 2012, the Board reopened the claim for service connection for a bilateral shoulder disorder, and remanded the reopened claim to afford the Veteran a VA examination to determine the nature and etiology of any current bilateral shoulder disabilities.  The examiner was asked to provide an opinion as to the likelihood that any currently identified disability had its clinical onset during or is related to any in-service disease, event, or injury.  The examiner was instructed to consider and comment on the Veteran's contentions that each disability began during service, with the bilateral shoulder disability being sustained during parachute jumping and continuing to the present time.  

The Veteran was afforded a VA examination to evaluate his claimed bilateral shoulder disorder in November 2012.  In response to the question of whether the Veteran had or had ever had a shoulder condition, the examiner stated that he had bilateral shoulder pain.  In discussing the history of the Veteran's shoulder condition, he noted that he complained of intermittent pain and decreased range of motion in the bilateral shoulders after activities.  X-ray of the bilateral shoulders taken in conjunction with the examination revealed osteoarthritis of the acromioclavicular joint, bilaterally.  

Because the November 2012 VA examiner did not provide an etiological opinion regarding the Veteran's claimed bilateral shoulder disorder, in February 2013, another VA examiner reviewed the claims file, including the November 2012 VA examination report, and clarified that the Veteran's shoulder diagnoses were bilateral acromioclavicular joint arthritis and bilateral shoulder impingement syndrome.  He stated that there were no imaging findings consistent with a posttraumatic etiology for the Veteran's acromioclavicular arthritis nor were there any findings to link his current disability to any traumatic events or events in the distant past.  He added that, similarly, impingement syndrome was an overuse condition associated with muscle imbalance of the shoulder, not a posttraumatic condition.  The examiner observed that the Veteran claimed injury to his shoulders in service; however, as there was no documentation of such injury and no traumatic etiology to his current shoulder conditions, the examiner opined that it was less likely than not that the Veteran's present shoulder conditions were incurred in service.  

As discussed above, the Veteran is competent to report injuries sustained as a result of parachute jumps in service, and the Board finds such injuries to be credible and consistent with the circumstances of his service.  Nevertheless, the February 2013 VA examiner provided a negative nexus opinion based, at least in part, on the fact that there was no documentation of a shoulder injury in service.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion).  Further, despite the Board's September 2012 instructions, the examiner did not comment on the Veteran's contentions that his shoulder disability had continued since service to the present.  For these reasons, the February 2013 opinion is inadequate and does not satisfy the September 2012 remand directives.  See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311.  Accordingly, the claims file should be returned to the February 2013 VA examiner for a supplemental medical opinion.  

Similarly, a supplemental medical opinion is also needed in regard to the claimed skin disorder.  Service treatment records document complaints regarding and treatment for a fungal infection to the nose in January 1992, a rash due to rabies immunization in April 1992, and for chigger bites in August 1992.  

On VA examination in March 1994, the Veteran reported having a fungal rash on the face in January 1992.  He stated that this rash would occasionally come back and occurred for approximately three to four days approximately once a month.  
Examination of the facial skin was unremarkable.  The pertinent diagnosis was apparent history of intermittent facial rash, unknown type or etiology.  The examiner commented that he could not make a diagnosis without seeing the rash.  
On VA general medical examination in August 2000, the Veteran reported that, since coming back from the Gulf War, he noticed a rash which broke out around his mouth, sometimes extending to the nose, occurring about every two months and lasting about two weeks.  On examination, the skin was normal.  The pertinent impression was recurrent eczema of the perioral area of the face, with no abnormality found on examination.  

On VA examination in December 2000, the examiner noted that the Veteran had a rash like a butterfly rash on his face, which could represent lupus erythematosus.  Various tests were done, and the examiner opined that it was at least as likely as not that the facial rash was a lupus rash.  

During VA treatment in January 2008, the Veteran complained of a rash on his right medial ankle and right bicep for two months.  He reported that the last time he had had a rash was when he returned from Iraq, at which time he had a rash on his face which lingered for seven months, but had not since returned.  

During an August 2008 VA PTSD examination, the Veteran reported that he had an undiagnosed skin condition which manifested as a rash on his legs.  The examiner observed a skin rash on both of the Veteran's lower legs.  The Veteran reported that this rash had been treated with creams to no avail.  

The diagnosis following VA skin examination in June 2009 was dermatitis.  The Veteran reported that this condition began in service and was manifested by intermittent scattered lesions.  The examiner opined that the Veteran's skin condition was not caused by or a result of his military service.  In providing a rationale for this opinion, he stated that, while the Veteran had urticaria as an allergic reaction to a rabies immunization as well as a rash of the lower legs around the ankles secondary to chigger bites during service, both had cleared without complaints or physical evidence at the time of the 1994 examination.  The examiner opined that the Veteran's current condition of dermatitis was not related to either condition which was diagnosed and cleared during service.  

During the January 2012 hearing, the Veteran testified that his skin rash began in service and occurred periodically.  He stated that his rash had continued to come and go since service.  

In September 2012, the Board remanded the claim for service connection for a skin disorder to afford the Veteran a VA examination to determine the nature and etiology of any current skin disability.  The examiner was asked to provide an opinion as to the likelihood that any currently identified disability had its clinical onset during or is related to any in-service disease, event, or injury.  The examiner was instructed to consider and comment on the Veteran's contentions that each disability began during service, with the skin disability being intermittent and subject to flare-ups from service until the present time.  

The Veteran was afforded a VA examination to evaluate his claimed skin disorder in November 2012.  The examiner responded to the question of whether the Veteran had or had ever had a skin condition by stating that he had dermatitis or eczema which was diagnosed in 2011.  The examiner described the medical history of the skin condition, reporting that the Veteran had intermittent eczema to the left lower leg requiring topical steroid cream.  

Because the November 2012 VA examiner did not provide an etiological opinion regarding the Veteran's claimed skin disorder, in February 2013, another VA examiner reviewed the claims file, including the November 2012 VA examination report.  This examiner noted that the January 28, 1994 examination noted no skin findings; therefore, the Veteran's in-service dermatitis had its resolution prior to discharge from service.  The examiner further stated that the Veteran's current skin condition was diagnosed in 2011 as per the November 2012 VA examination report.  Accordingly, the examiner opined that the Veteran's current skin condition was less likely than not related to an in-service injury, event, or exposure.  

The February 2013 VA examiner's opinion was based, at least in part, on the fact that no skin findings were noted on examination in January 1994; however, the Veteran has described his skin condition as intermittent.  Additionally, the February 2013 opinion was based on the fact that the Veteran's current skin condition was diagnosed in 2011; however, the record reflects that the Veteran was diagnosed with skin disorders prior to this time.  For example, a skin rash on the lower legs was observed during VA PTSD examination in August 2008 and a VA treatment record from the following month includes an assessment of dermatitis.  Further, the February 2013 VA examiner did not consider and comment on the Veteran's contentions that his skin disability had been intermittent and subject to flare-ups from service to the present.  For these reasons, the February 2013 opinion is inadequate and does not satisfy the September 2012 remand directives.  See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311.  Accordingly, the claims file should be returned to the February 2013 VA examiner for a supplemental medical opinion regarding this claim as well.  

In rendering the requested opinion, the examiner should also consider and address the Veteran's November 2009 assertion that his skin condition is related to vaccinations he received in service.  

One additional point also worth noting in regard to the Veteran's claims for service connection, however, is that a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013).  Arthritis is amongst the conditions listed in § 3.309(a) as chronic, per se, so subject to this continuity of symptomatology exception, and, to the extent that it is an organic disease of the nervous system, radiculopathy is also subject to this exception.  However, the Veteran's claimed skin disorder, recently diagnosed as dermatitis or eczema, is not a condition identified in § 3.309(a) as chronic, per se, so not the type of condition subject to this continuity of symptomatology exception.

Finally, as regards the claim for an effective date earlier than October 20, 2009 for the grant of a 100 percent rating for PTSD, the Board notes that, in the August 2008 rating decision, the RO granted service connection and assigned an initial 70 percent rating for PTSD, effective January 28, 2008.  In a December 2009 rating decision, the RO granted an increased, 100 percent rating for PTSD, effective October 20, 2009, based on the date of his claim for an increased rating.  The RO noted that, since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination.  

In January 2010, the Veteran filed an NOD.  He stated, "Claim for PTSD 100% effective date October 20, 2009.  Does not provide benefits for family because not permanent rating.  Date was set for August for reevaluation along with the claims pending.  It has been two years since taken out of work December 22, 2007."  The RO responded later that month indicating that it had received the Veteran's NOD in regard to the denial of a permanent 100 percent rating for PTSD.  However, a June 2010 deferred rating decision reflects that the January 2010 statement should not have been accepted as an NOD in regard to the denial of a permanent 100 percent rating for PTSD; rather, it should have been accepted as a claim for entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35.  In an August 2010 rating decision, the RO subsequently denied eligibility to DEA.  The Veteran filed an NOD in regard to this denial and an SOC addressing this matter was issued in September 2011.  The Veteran did not file a substantive appeal in response to this SOC; thus, this matter is not presently before the Board.  See 38 C.F.R. § 20.200 (appeal consists of a timely filed notice of disagreement and, after issuance of a statement of the case, a substantive appeal). 

In an October 2012 rating decision, the AMC implemented the Board's September 2012 grant of service connection for insomnia, and included this disability in the evaluation of the Veteran's service-connected PTSD.  The AMC continued the 100 percent rating for PTSD with insomnia (dysomnia) from October 20, 2009.  In December 2012, the Veteran filed an NOD in which he stated that he disagreed with the effective date of October 20, 2009.  The Board notes, however, that the effective date of October 20, 2009 for the 100 percent rating for PTSD was established in the December 2009 rating decision.  While the RO construed the Veteran's January 2010 statement as a claim for entitlement to DEA under 38 U.S.C. Chapter 35, the Veteran clearly indicated that he was also disagreeing with the effective date of October 20, 2009 for the award of his 100 percent rating.  Indeed, in a December 2010 letter to the Veteran, the RO acknowledged that it had received the Veteran's January 2010 NOD in which he disagreed with the effective date of October 20, 2009 for the award of a 100 percent rating for PTSD.  

By filing a timely NOD with December 2009 rating decision, the Veteran has initiated appellate review on the claim for an effective date earlier than October 20, 2009 for the grant of a 100 percent rating for PTSD; however, the RO has yet to issue an SOC with respect to this claim, the next step in the appellate process.  See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).  Consequently, the claim for an effective date earlier than October 20, 2009 for the grant of a 100 percent rating for PTSD must be remanded for the issuance of an SOC.  Id.  The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202.


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Provide the Veteran and his representative an SOC in response to the January 2010 NOD concerning the claim for an effective date earlier than October 20, 2009 for the grant of a 100 percent rating for PTSD.  Give them time to submit a substantive appeal, VA Form 9 or equivalent statement, in response to the SOC to complete the steps necessary to perfect the appeal of this claim to the Board.  Inform them of the amount of time they have for doing this, i.e., generally speaking, 60 days from the date of receipt of this SOC.  See 38 C.F.R. §§ 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, and 20.306.

2.  Provide the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for service connection for a cervical spine disorder, including associated upper extremity radiculopathy, and his claim for service connection for a left knee disorder, on the merits.  

3.  Forward the claims file to the physician that provided the February 2013 opinions, if still available, for a supplemental medical opinion.  In regard to the claimed cervical spine disorder, including associated upper extremity radiculopathy, the physician should provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any cervical spine disorder, to include associated upper extremity radiculopathy, which has been present at any time since December 2008, had its clinical onset during or is related to any in-service disease, event, or injury.  In rendering this opinion, the examiner must consider and comment on the Veteran's assertions that his disability began in service and he has had symptoms of locking in his left thumb and index finger since service.  

In rendering the requested opinion, the examiner should also consider and address any post-service accidents affecting the neck, including motor vehicle accidents in January and December 2009 (discussed above).  

In regard to the claimed bilateral shoulder disorder, the physician should provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any shoulder disorder which has been present at any time since December 2008 had its clinical onset during or is related to any in-service disease, event, or injury.  In providing this opinion, the physician must consider and comment on the Veteran's contentions that his shoulder disability has continued since service to the present.  

This physician should also provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any left knee disorder which has been present at any time since December 2008 had its clinical onset during or is related to any in-service disease, event, or injury.  In rendering this opinion, the physician should consider and comment on the Veteran's in-service complaints of knee pain (as documented in August 1984 and October 1993).  

In regard to the claims for service connection for a cervical spine disorder, a left knee disorder, and a bilateral shoulder disorder, the physician is advised that the Veteran has reported suffering injuries as a result of parachute jumps in service, and that he is competent to report such injuries and the Board finds his report of these injuries to be credible and consistent with the circumstances of his service.  

In regard to the claimed skin disorder, the physician should provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any skin disorder present at any time since December 2008 had its clinical onset during or is related to any in-service disease, event, or injury.  In providing this opinion, the physician must consider and comment on the Veteran's contentions that his skin disability began in service and has been intermittent and subject to flare-ups from service until the present time.  The physician is also advised that the claims file documents skin conditions diagnosed prior to 2011, to include, for example, a September 2008 VA treatment record which includes an assessment of dermatitis.  

In rendering this requested opinion, the examiner should also consider and address the Veteran's November 2009 assertion that his skin condition is related to vaccinations he received in service.  

In regard to each of the above requested opinions, the complete rationale for all opinions expressed should be set forth in the examination report.

If, for whatever reason, it is not possible to have this same examiner provide these additional comments, then have someone else do it that is qualified to make these necessary determinations.  In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or whether, instead, the necessary additional responses can be provided merely from reviewing the claims file.

If further examination of the Veteran is deemed necessary, arrange for him to undergo this additional examination.  All indicated tests and studies should be accomplished.  All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.
 
4.  Conduct any other appropriate examination and development deemed necessary.  Then readjudicate these claims in light of this and all other additional evidence.  If any claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs