Citation Nr: 1318238	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  10-47 578	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Whether there is new and material evidence to reopen a claim of entitlement to service connection a low back disability.

2.  Entitlement to service connection for a left knee disability.

3.  Entitlement to service connection for a right hip disability.

4.  Entitlement to service connection for a left foot disability.

5.  Entitlement to service connection for a low back disability.

6.  Entitlement to service connection for a cervical spine disability.

7.  Entitlement to service connection for bilateral shoulder disability.

8.  Entitlement to service connection for a psychiatric disability.

9.  Entitlement to service connection for a gastrointestinal disability.

10.  Entitlement to a rating higher than 20 percent a right foot disability.

11.  Entitlement to an initial rating higher than 0 percent, so a compensable rating, for a right ankle disability since July 28, 2009.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from February 1999 to June 2001.

He appealed to the Board of Veterans' Appeals (Board/BVA) from June and September 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

After determining there is the required new and material evidence, the Board is reopening the claim for service connection for a low back disability.  But rather than immediately readjudicating this claim on its underlying merits, the Board is then remanding this claim to the RO, as well as those for a cervical spine disability, bilateral shoulder disability, psychiatric disability, and gastrointestinal disability, because they require further development before being finally decided on appeal.  The Board, however, is instead going ahead and deciding the other claims.



FINDINGS OF FACT

1.  A January 2004 rating decision denied the Veteran's petition to reopen his claim for service connection for a low back disability; he did not appeal that decision or submit new and material evidence within the one-year appeal period.

2.  Additional evidence received since that January 2004 rating decision is not cumulative or redundant of the evidence considered in that decision, relates to an unestablished fact necessary to substantiate this claim, and raises a reasonable possibility of substantiating this claim of entitlement to service connection for a low back disability.

3.  The most competent and credible, so ultimately probative, evidence of record shows the Veteran has not been diagnosed with a left knee disability at any time since the filing of his claim for this disability.

4.  The most competent and credible, so ultimately probative, evidence of record shows that the Veteran has not been diagnosed with a right hip disability at any time since the filing of his claim for this disability.

5.  The most competent and credible, so ultimately probative, evidence of record shows his current left foot disability is not due to his military service, including caused or aggravated by a service connected disability.

6.  At all times during the pendency of this appeal the most competent and credible, so ultimately probative, evidence of record shows his right foot disability is manifested by symptoms tantamount to severe foot injury, especially when taking into account his complaints of chronic or persistent pain.

7.  Since July 28, 2009, the most competent and credible, so ultimately probative, evidence of record shows his right ankle disability is manifested by moderate, but not marked, limitation of motion, especially when taking into account his complaints of pain.


CONCLUSIONS OF LAW

1.  The January 2004 rating decision denying the Veteran's petition to reopen his claim for service connection for a low back disability is a final and binding decision based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012).

2.  But there is new and material since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  A left knee disability was not incurred in or aggravated by his military service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).

4.  A right hip disability was not incurred in or aggravated by his military service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).

5.  A left foot disability was not incurred in or aggravated by his military service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).


6.  The criteria are met for a higher 30 percent rating, though no greater rating, for the right foot disability.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5284 (2012).

7.  The criteria also are met for a higher initial rating of 10 percent, though no greater rating, for the right ankle disability since July 28, 2009.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating claims for VA benefits.  See 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).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete the claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The claimant also must be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain for him.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate claims.  This includes obtaining all relevant evidence adequately identified and, in some cases, affording VA examinations for medical opinions.  38 U.S.C.A. § 5103A. 


In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date.  See also 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

Regarding petitions to reopen previously denied, unappealed, claims, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court indicated that VA must notify the Veteran of the elements of the underlying claim and of the definition of "new and material evidence."  To this end, Kent requires that VA give the Veteran notice of precisely what evidence is necessary to reopen the claim, depending upon the basis of the prior denial.  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.  VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006).

Here, since the Board is reopening the claim for a low back disability, the Board need not discuss whether the Veteran received the type of notice contemplated by Kent because, even if he did not, his claim still is being reopened.  So that failure to provide this required notice, even in this worst case scenario, would at most amount to nonprejudicial, i.e., harmless error.  See 38 C.F.R. § 20.1102.  As the U. S. Supreme Court explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis.  Also, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, aside from this, that it is unduly prejudicial - meaning outcome determinative of his claim.  There simply is no such possibility in this particular instance.


Moreover, since, after reopening this claim for a low back disability, the Board is remanding, rather than immediately deciding, this claim, the Board also need not at this juncture discuss whether there has been compliance with the remaining notice and duty to assist obligations of the VCAA.  This is better determined once the additional development of this claim is completed on remand.

As concerning all other claims being adjudicated in this decision, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether he has Veteran status.

As for his claims for service connection for left knee, right hip, and left foot disabilities and for an increased rating for his right foot disability, a letter dated in July 2008, sent before the June 2009 rating decision, along with a letter dated in July 2010 provided him notice satisfying the provisions of 38 U.S.C.A. § 5103(a), including notice of the laws and regulations governing disability ratings and effective dates upon the granting of service connection, as required by Dingess, supra.  That July 2008 letter, as mentioned, preceded the initial adjudication of these claims, so was in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  But even to the extent he was not provided adequate or complete 38 U.S.C.A. § 5103(a) notice prior to the initial adjudication of the claims in the June 2009 rating decision, one must also consider that providing him the additional notice in July 2010 followed by a readjudication of the claims in the November 2010 statement of the case (SOC) was sufficient to rectify or "cure" the timing defect resulting from inadequate notice or the lack of notice prior to the initial adjudication.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  See also Prickett v. Nicholson, 20 Vet. App. 370 (2006).


As for the claim for an initial compensable rating for the right ankle disability, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability.  In Dingess, supra, the Court held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id, at 490-91; Also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008) and this line of precedent cases and General Counsel's Opinion, VA does not have to provide the Veteran additional VCAA notice concerning this "downstream" disability rating claim.  Instead of issuing an additional VCAA notice letter in this situation concerning this downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement with the initial rating is not resolved, and this occurred in this particular instance.  The Veteran also since has received supplemental SOCs (SSOCs).  The SOC and SSOCs contained citations to the governing statutes and regulations and discussion of the reasons and bases for not assigning a higher initial rating for this disability.  He therefore has received all required notice concerning this claim.

VA also as mentioned has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting him in obtaining relevant records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to the claimant).

As concerning this additional duty to assist, the Board finds that VA has obtained all available and identified pertinent in-service and post-service evidence, including the Veteran's service treatment records (STRs) as well as his post-service records from the Brick VA Medical Center (VAMC) and Barone Chiropractic Center.

As well, in response to his claims of entitlement to service connection for left knee, right hip, and left foot disabilities, he was afforded opportunities for VA compensation examinations but he repeatedly failed to report for the evaluations that were scheduled.  The Board finds that a remand for the additional rescheduling of his VA examinations is not required because, while he provided good cause for not appearing for the first VA examination the RO had scheduled in connection with his appeal, he did not also provide good cause for again failing to show for the two subsequent VA examinations.  See 38 C.F.R. § 3.655(b) (2012) (providing that VA will adjudicate a claim based solely on the evidence already in the claims file when the claimant, without good cause, fails to show for a needed VA examination.); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that, while VA has a duty to assist the Veteran in the development of a claim, this duty is not limitless or a one-way street.  In the normal course of events, it is his burden to keep the VA apprised of his whereabouts.  If he does not, there is no burden on VA to "turn up heaven and earth" to find him).

Further concerning these claims for left knee, right hip, and left foot disabilities, the Board finds that a remand for the rescheduling of a VA examination also is not required because the Federal Circuit Court has addressed the appropriate standard to be applied in determining whether an examination is warranted under the statute.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit Court held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming entitlement to service connection, so merely as a matter of course rather than as meeting the specific and craftily tailored requirements for when an examination and opinion are required.  Waters, 601 F.3d at 1278-1279.  See also Duenas v. Principi, 18 Vet. App. 512, 519 (2004).

Given this enunciated standard, the Board finds that a remand for a VA examination is not required in this instance because the Veteran's STRs are entirely unremarkable for these claimed disorders and/or the post-service record is negative for the claimed disorders for many years after his separation from military service, if ever.  The lay statements from him and others regarding a potential nexus between the alleged current disabilities and his service are not competent and credible because, as will be explained in more detail below, they do not have the required medical expertise.  Moreover, the Board does not find the lay statements from the Veteran and others regarding continuity of symptomatology since service both competent and credible because, as will also be explained in more detail below, the Board finds more credible the medical evidence in the claims file and because 38 C.F.R. § 3.303(b) does not apply to these claims inasmuch as they are not amongst the conditions identified in § 3.309(a) as chronic and, therefore, subject to this proof and pleading alternative.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Also see 38 U.S.C.A. § 5103A(d); Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service when the Board does not find the Veteran's statements concerning same credible); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As for the rating claims, the Veteran had VA examinations in March and September 2009, which the Board finds are adequate for rating purposes because the examiners, after reviewing the record on appeal and performing comprehensive evaluations of the Veteran, provided medical opinions regarding the severity of his disabilities allowing the Board in turn to appropriately rate them under all potentially applicable rating criteria.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, even if not statutorily obligated to, it must ensure the examination or opinion is adequate, else, notify the Veteran why an adequate examination and opinion cannot be provided).


Moreover, neither the Veteran nor his attorney has voiced any challenge to the adequacy of those VA examinations.  Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  But even when this is called into question, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

There is no obligation to have the Veteran reexamined simply as a matter of course or merely because of the passage of time since an otherwise adequate examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995).

As well, VA offered him an opportunity to present additional evidence and argument at a hearing, but he elected not to have one, including before the Board.  38 C.F.R. §§ 20.700, 20.702, 20.704.


In sum, he has received all essential notice, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  He has not identified any outstanding evidence that would tend to support these claims being decided, and there is no suggestion of any VA error in notifying or assisting him in developing these claims that could result in undue prejudice to him in deciding these claims or that could otherwise affect the essential fairness of the adjudication of these claims.

In deciding these claims, the Board has reviewed all of the evidence in his claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  He therefore must not assume the Board has overlooked 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 the Veteran).

The Claim to Reopen

The Veteran and his attorney contend the Veteran's low back disability was caused by his military service and/or his service-connected right foot disability.

His claim therefore is predicated on theories of direct, presumptive, and secondary service connection, and the Board must consider all potential bases of entitlement.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court (CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).

The RO most recently denied the Veteran's petition to reopen his claim for service connection for a low back disability in a January 2004 rating decision.  He did not appeal that January 2004 rating decision.  Moreover, the record does not show that, following that rating decision, he submitted any medical documentation, lay statements, or other evidence constituting new and material evidence within the one-year appeal period.  38 C.F.R. § 3.156(b) (2012).  There equally were not official service department records that had not been previously considered.  38 C.F.R. § 3.156(c).  Therefore, that rating decision is final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012).

As to reopening a prior finally denied claim, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed.  38 U.S.C.A. § 5108.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing 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 prior 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 held that, in determining whether evidence is new and material, the credibility of the newly-presented evidence is to be presumed - albeit only for the initial purpose of making this threshold preliminary determination.  Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept as true assertions that are beyond the competence of the person making them).

The Board is required to give consideration to all of the evidence received since the last final and binding denial of the claim, irrespective of whether it was a denial on the underlying merits or, instead, a prior petition to reopen the claim.  See Evans v. Brown, 9 Vet. App. 273, 284 (1996),  So in this particular instance the Board must consider the evidence submitted since the January 2004 rating decision in light of the totality of the record.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).

The January 2004 rating decision denied the prior petition to reopen this claim for service connection for a low back disability, in part, because the Veteran continued to have no diagnosed low back disability other than pain.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.").

During the years since that January 2004 rating decision, however, the Veteran's more recent medical records show his continued complaints of and treatment for a low back disability variously diagnosed as, among other things, spinal stenosis and a bulging disc.  See, for example, lumbosacral spine magnetic resonance imaging (MRI) evaluations dated in October 2003 (received by VA in November 2009) and July 2008 (received by VA in August 2008).


The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); 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).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997). 

Therefore, the Board finds the treatment records, the credibility of which must be presumed (see Kutscherousky and Justus, supra), which show for the first time underlying diagnoses accounting for the Veteran's complaints of pain to be both new and material evidence as defined by VA regulation.  See 38 C.F.R. §§ 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of the 
post-VCAA version of 38 C.F.R. § 3.156(a) created a low threshold for reopening a claim, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  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."); Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (indicating new evidence may be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim).

This claim of entitlement to service connection for a low back disability therefore is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

The Service-Connection Claims

The Veteran contends that he has current left knee, right hip, and left foot disabilities attributable to his military service.  In the alternative, he claims these disabilities are secondarily related to his service since caused or aggravated by his service-connected right foot disability. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby beyond the condition's natural progression.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  If a condition noted during service is not shown to be chronic, then a showing of continuity of symptomatology since service is required to support the claim for service connection.  38 C.F.R. § 3.303(b).  Showing continuity of symptomatology since service, however, to alternatively establish the required linkage between current disability and service, is only available under § 3.303(b) for the conditions specifically identified as chronic under § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  That said, service connection may be granted on the basis of a post-service initial diagnosis of a disease if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including a psychoses and arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within the first year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  This presumption, however, is rebuttable by affirmative evidence to the contrary.


Service connection also may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

a.  The Left Knee and Right Hip Disabilities

As already explained, most fundamental to these claims is first establishing the Veteran has these alleged disabilities, else, there necessarily cannot be valid claims since there is no present disability to relate or attribute to his military service, either directly, presumptively, or secondarily.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).

An undated STR documented his complaints of and treatment for knee swelling.  
Post-service, he reported a history of swollen/painful joints during a November 2001 examination.  A VA treatment record dated in August 2008 also documents his complaints of and treatment for right hip pain.  Furthermore, the Board finds that he is both competent and credible to report on what he can see and feel such as observable symptoms of left knee and right hip disabilities (e.g., pain and consequent limitation of motion), both while on active duty in the military and during the several years since even when not documented in his contemporaneous medical records because these symptoms come to him through his senses.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009).  See also Washington v. Nicholson, 19 Vet. App. 363 (2005) (indicating lay testimony is competent when concerning firsthand knowledge of a factual matter).

But as to the in-service medical evidence, the Board sees that none of the STRs, including a February 2000 examination, a December 2000 Medical Board Evaluation and examination, and a January 2001 examination, actually diagnosed him with an underlying left knee and/or a right hip disability.  In fact, to the contrary, the January 2001 examiner explained that the Veteran's lower extremities were normal except for his right foot.


As for the post-service medical records, some treatment records document the Veteran's complaints of left knee and right hip pain.  See VA treatment records dated in September 2001 and August 2008.  However, to reiterate, the Court has explained that mere pain, alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted.  See again Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  Moreover, 
the post-service medical record is unremarkable for diagnoses of chronic, meaning permanent, left knee or right hip disabilities.  And service connection is predicated on the notion the Veteran has lasting disability, meaning even to this day or, at the very least, at least at the time of filing of his claims.  McLendon, supra.

It is worth repeating that the most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); 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).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997). 


As for the lay statements from the Veteran and his attorney, while they are competent to comment on the Veteran's symptoms of left knee and right hip disabilities because this requires only their personal knowledge, not medical expertise, they are not also competent to ascribe symptoms to a particular underlying diagnosis and, aside from that, to attribute said diagnosis to a disease, injury or event that occurred during military service - at least not as specifically concerning the type of disabilities being alleged that do not fall within the purview of "simple" conditions, rather, are more complex.

Establishing entitlement to service connection requires competent and credible evidence showing:  (1) the Veteran has the claimed disability or, as mentioned, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury in service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

The evaluation of evidence generally involves a three-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 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible).  Only if evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994). (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

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.  38 C.F.R. § 3.159(a)(2).  So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).

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).


In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable 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 equally have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also 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 obtain a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay 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 at 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").

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

Here, the Board finds that the most competent and credible, so ultimately probative, evidence of record shows the Veteran has not been diagnosed with left knee and right hip disabilities at any time since the filing of these claims.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); also see McClain, supra.

Accordingly, since a condition precedent for establishing entitlement to service connection on a direct, presumptive, or secondary basis is the diagnosis of a disability during the pendency of the claim, and the Veteran does not have such diagnoses referable to his left knee and right hip, the Board finds that entitlement to service connection for disabilities claimed to be affecting these areas of his body must be denied.  Rabideau, supra; also see McClain, supra; Hickson, supra.  

b.  The Left Foot Disability

As to a current disability involving his left foot, a review of the post-service records documents the Veteran's complaints of and treatment for left foot disabilities diagnosed as pes planus (flat feet), hallux valgus, a plantar spur, and a bunion.  See, for example, the report of the VA examination dated in April 2001; VA treatment records dated in July 2008.

Resolution of this claim therefore turns instead on whether this current disability in the way of these various diagnoses is related or attributable to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

As to service incurrence under 38 C.F.R. § 3.303(a), an April 2001 left foot X-ray taken by Medical Support Services showed a loss of normal longitudinal plantar arch in the left foot.  During a subsequent November 2001 examination, the Veteran reported a history of swollen/painful joints.  The Board also finds that he is both competent and credible to report on what he can see and feel such as observable symptoms of his left foot disability (i.e., pain and resultant limitation of motion) while on active duty and since that time even when not documented in his medical records because these symptoms come to him through his senses.  See Davidson, supra.  

But as to the medical evidence, the Board notes that while the April 2001 left foot X-ray taken by Medical Support Services showed a loss of normal longitudinal plantar arch in the left foot, in other words a flat foot, there was no attribution of this pes planus to his military service.  Moreover, the Board sees that none of the STRs, including his earlier February 2000 examination and December 2000 Medical Board Evaluation and examination as well as the January 2001 examination, document complaints, diagnoses, or treatment for a chronic left foot disability attributable to his service.  In fact, the January 2001 examiner specifically opined that examination of the lower extremities was normal except for problems with the already service-connected right foot.  Therefore, the Board finds, as the February 2000, December 2000, and January 2001 examiners apparently found, the Veteran did not have a chronic left foot disability while on active duty or originating from or as a consequence of his military service.

As to the lay statements from the Veteran, while he is competent to report on his symptoms of left foot disability because this requires only his personal knowledge, not medical expertise, as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of a chronic disability because such an opinion requires medical expertise that he does not have or portend to.  See Davidson, supra.  Therefore, the Board finds more compelling his STRs which are unremarkable for continued complaints of this now claimed disability as well as the normal February 2000, December 2000, and January 2001 examinations, that is, in comparison to his assertions that he had problems with a chronic left foot disability while on active duty and has continued to since.

Accordingly, the Board finds that the most competent and credible evidence is against his claim of entitlement to service connection for a left foot disability.  Therefore, service connection must be denied based on in-service incurrence despite the X-ray evidence of a left foot arch problems noted during service and his claims regarding having had problems with observable symptoms of this disability while on active duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. § 3.309(a), the record does not show a diagnosis of arthritis of the left foot in the first post-service year.  In fact, the record does not ever show a diagnosis of arthritis.  Arthritis, including if due to trauma (i.e., post-traumatic), must be objectively confirmed by X-ray.  38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010.  This means a Veteran's mere lay assertions are insufficient to show the initial manifestation of arthritis within the time specified or even, for that matter, more recently.  Accordingly, the Board finds that entitlement to service connection for a left foot disability must be denied on a presumptive basis as well.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Veteran's left foot disabilities (i.e., pes planus, hallux valgus, a plantar spur, and a bunion) are not specifically listed disabilities found at 38 C.F.R. § 3.309(a).  Accordingly, 38 C.F.R. § 3.303(b) is not applicable to this claim, meaning he cannot in turn establish the required linkage or correlation between these conditions and his military service merely by showing continuity of symptoms since service.  See Walker, supra.  (Parenthetically, the Board notes that while all arthritis is a subset of arthropathy, not all arthropathy is arthritis.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY p. 140 and p. 141 (28th ed. 1994)).  Therefore, entitlement to service connection for a left foot disability based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(b).


As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the record is negative for a competent and credible opinion finding a causal association or link between the Veteran's current left foot disabilities and an established injury, disease, or event of service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); Rabideau, supra.  Moreover, because he failed to show for the VA examination that was scheduled in connection with this claim, the Board is compelled to adjudicate it based on the evidence found in the claims file, which unfortunately does not include medical nexus evidence of such a cause-and-effect link or correlation.  See 38 C.F.R. § 3.655.  

As to the various lay statements from the Veteran and his representative found in the record regarding the claimant's left foot disability being caused by his military service, the Board finds that diagnosing this disability requires special medical training that these lay persons do not have or profess to and, therefore, the presence of the disorder is a determination "medical in nature" and not instead readily capable of mere lay observation.  See Davidson, supra.  Therefore, since laypersons are incapable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disability was caused by service is not competent evidence, much less credible or persuasive evidence.  Id.

Therefore, the Board finds that the most competent and credible evidence of record does not show the Veteran's left foot disability was caused by his military service, either directly or presumptively.  Accordingly, because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disability and an established injury, disease, or event of service origin the Board finds that the claim must be denied based on the initial diagnosis of the disability after service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d).

As for service connection based on the disability being secondary to the Veteran's service-connected disabilities - including his right foot disability under 38 C.F.R. § 3.310, the Board notes that the record is negative for a competent and credible opinion finding the Veteran's left foot disability was caused or aggravated by any service-connected disability.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310; Allen, supra.  Moreover, because he failed to show for the VA examination that was scheduled in connection with this claim, the Board is compelled to adjudicate it based on the evidence found in the claims file which does not include medical evidence of such a link.  See 38 C.F.R. § 3.655.  Supporting medical nexus evidence generally is needed to associate a claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); and Velez v. West, 11 Vet. App. 148, 158 (1998).

As to the various lay statements from the Veteran and his representative found in the regard regarding the claimant's left foot disability being due to the claimant's service-connected disabilities - including especially his service-connected right foot disability, the Board finds that diagnosing this disability and establishing such a cause-and-effect correlation requires special medical training that these laymen do not have or profess to and, therefore, the presence of the disorder is a determination "medical in nature", as is its contended relationship to a service-connected disability, thus incapable of mere lay observation alone.  See Davidson, supra.  Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disability was caused or aggravated by a service-connected disability is not competent evidence, so does not have any probative weight.  Id.

Therefore, the Board finds that the most competent and credible evidence of record does not show the Veteran's left foot disability was caused or aggravated by a service-connected disability.  Accordingly, because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disability and an already service-connected disability the Board finds that the claim must be denied based on this alternative theory of secondary service connection.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310; Allen, supra.

Accordingly, all told, the Board must conclude that entitlement to service connection for a left foot disability must be denied on a direct, presumptive, and secondary basis because the weight of the evidence is against the claim.  See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.  


The Rating Claims

The Veteran asserts that his right foot and right ankle disabilities meet the criteria for higher evaluations.  

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Court has held 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, actually from one year prior, until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (initially applying this practice only in the context of initial-rating, rather than established-rating, claims).

Regulations also require that, where there is a question as to which of two evaluations is to be applied, the higher evaluation 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.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.


When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain).  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id. at 206.

Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations:  (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).  (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).  (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).  (d) Excess fatigability.  (e) Incoordination, impaired ability to execute skilled movements smoothly.  (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  For the purpose of rating disability from arthritis, the spine is considered a major joint.

Furthermore, 38 C.F.R. § 4.59 provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

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).  The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts.  Burton v. Shinseki, 25 Vet. App. 1 (2011).


Pain and painful motion must be objectively confirmed, however, such as by visible expression, and if a Veteran already has the maximum rating assignable based on limitation of motion, it is not necessary to consider these provisions.  Johnston v. Brown, 10 Vet. App. 80 (1997).  Moreover, the Court has clarified that, although pain may be a cause or manifestation of functional loss, pain itself does not constitute functional loss.  See 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.  Id.; see 38 C.F.R. § 4.40.

a.  The Right Foot Disability

The June 2009 rating decision confirmed and continued a 20 percent rating for the Veteran's right foot disability under 38 C.F.R. § 4.71a, Diagnostic Code 8799-5284.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5284, a 20 percent rating is warranted for a "[m]oderately severe" foot injury and a 30 percent rating for "severe" foot injury.

The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012).

The Board also notes that the term "severe" as used in Diagnostic Code 5284 is not defined by regulation.  However, the overall regulatory scheme relating to the feet and toes contemplates 30 percent ratings in cases where problems include such difficulties as severe bilaterally flat feet and pronounced unilateral flat foot.  See e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5276.  A 30 percent rating may also be assigned when there is bilateral claw foot with all toes tending to dorsiflexion or marked unilateral claw foot.  See e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5278.  A 30 percent rating may be assigned as well when there is severe malunion or nonunion of the tarsal or metatarsal bones.  See, e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5283.  Moreover, for the reasons and bases discussed below, the record supports finding that the Veteran's right foot disability approximates such a degree of severity.

Specifically, during his March 2009 VA examination he complained of a painful right toe with increased pain with standing and waking as well as foot swelling, heat, redness, stiffness, fatigability, and lack of endurance.  He also complained of weekly or greater flare-ups that last 1 to 2 days.  He also reported that he treated his pain with Advil with fair results.  On examination, there was evidence of pain, swelling, instability, tenderness, weakness, abnormal weight bearing, and painful great toe dorsiflexion and plantar flexion.  The right great toe also had severe tenderness to light touch and guarding.  It was also noted that strength was +4/5 and there was an unusual shoe wear pattern.  The right great toe joint had a mild valgus deformity of 12 degrees.  The range of motion of the right great toe was dorsiflexion to 25 degrees with pain and plantar flexion to 10 degrees with pain.  He had flat feet.  There was no evidence of claw foot, malunion or nonunion of the tarsal or metatarsal bones, muscle atrophy, or foot deformity. 

VA treatment records also document his complaints of and treatment for right foot pain, including a July 2008 VA treatment record noting he had severe pes planus.  However, nothing in these records show his adverse symptomatology to be worse than what was reported during the above VA examination.  See Colvin, supra.

In summary, the record shows his right foot disability is manifested by objective evidence of severe tenderness to light touch along with swelling, instability, weakness, and abnormal weight bearing as well as lost motion, guarding, +4/5 strength, an unusual shoe wear pattern, a mild valgus deformity of 12 degrees.  Given the above, and when considering his complaints of pain in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca, supra, the Board finds that his disability more closely resembles the criteria for a "severe" foot injury than it does a "moderately severe" foot injury.  Accordingly, the Board finds that an increased rating is warranted under Diagnostic Code 5284.  See 38 C.F.R. § 4.71a.  This is true at all times during the pendency of the appeal and therefore the Board need not consider staging this rating.  Hart, supra.

As to rating the Veteran's right foot disability under another rating code, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  

In this regard, the Board notes that Diagnostic Code 5284 pertains specifically to the disability at issue - an injury to one foot caused by the surgical removal of a bunion.  Moreover, the Board cannot identify any evidence suggesting another diagnostic code would be more appropriate and the Veteran has not suggested that an alternative diagnostic code be employed.  Furthermore, the Board finds that while a higher rating is available for foot disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5278 (acquired claw foot), the Board also finds that this rating criteria is inapplicable to the current claim because the record, including the March 2009 VA examination, is negative for such diagnosis.  See Butts, supra.  Likewise, the Board does not find that 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flat foot) is applicable to the current claim even though the record shows the Veteran has what amounts to severe bilateral pes planus, because nothing in the file shows that his service-connected right foot disability includes pes planus.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  This is true at all times during the pendency of the appeal and therefore the Board need not consider staging the rating.  Hart, supra.


b.  The Right Ankle Disability

The September 2009 rating decision granted service connection for a right ankle disability and assigned it a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271, effective from July 28, 2009.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, limitation of motion of the ankle is rated as 10-percent disabling if moderate and 20-percent disabling if marked.  Normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  See 38 C.F.R. § 4.71a, Plate II (2012).  

The record shows the Veteran's consistent reports of pain in connection with movement of his right ankle.  See, for example, VA treatment records dated in July 2008, and August 2008; VA examinations dated in March 2009 (severe ankle pain with motion) and September 2009.  The Board finds that his documented complaints of right ankle pain with motion, even in the absence of any lost motion, equates to moderate limitation of motion of the right ankle with application of 38 C.F.R. § 4.59.  See Burton v. Shinseki, 25 Vet. App. 1 (2011); DeLuca, supra.  Therefore, the Board finds that under Diagnostic Code 5271 the Veteran is entitled to the minimum 10 percent rating assignable for his right ankle disability.  See 38 C.F.R. § 4.71.  This is true at all times since July 28, 2009, and therefore the Board need not consider staging this rating.  Fenderson, supra.

As to a rating in excess of 10 percent, the Board notes that at the September 2009 VA examination the Veteran complained of daily ankle pain worse with standing and walking with a feeling of giving way on uneven ground but no flare-ups, incapacitating episodes, or work impairment.  On examination, the right ankle had pain over the joint lines and range of motion was dorsiflexion to 20 degrees and plantar flexion to 45 degrees with complaints of pain at end ranges of motion.  After repetitive motion, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance.  There was no swelling, deformities, or instability.  He could go up on his heels and toes.  X-rays were negative.  The diagnosis was chronic right ankle sprain/strain.

While VA treatment records document his complaints of and/or treatment for right ankle pain, nothing in these records shows his adverse symptomatology to be worse than what was reported during the above VA examination.  See Colvin, supra.

Consequently, the Board finds that even when considering his complaints of pain in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in DeLuca, supra, the clinical evidence of record, which shows the range of motion of the right ankle to be normal with dorsiflexion to 20 degrees and plantar flexion to 45 degrees, does not demonstrate that his adverse symptomatology equates to marked limitation of motion of the ankle.  Accordingly, a higher evaluation is not warranted under Diagnostic Code 5271.  See 38 C.F.R. § 4.71a.  This is true at all times since July 28, 2009, and therefore the Board need not consider staging this rating.  Fenderson, supra.

As to rating the Veteran's right ankle disability under Diagnostic Codes 5270 and 5272, the Board notes that the record, including the findings at the September 2009 VA examination, is unremarkable for suggestion of ankylosis.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because the Veteran has retained some measure of range of motion of his ankle on both flexion and dorsiflexion, indeed, even despite his complaints of pain, his ankle by definition are not ankylosed.

As to rating his right ankle disability under one of the other Diagnostic Codes for the ankle, the Board notes that the record, including the findings at the September 2009 VA examination, is negative for problems similar to malunion of the os calcis or astragalus or astragalectomy.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5273 and 5274 (2012).  In the absence of such adverse symptomatology, the Board will not rate his service-connected right ankle disability as one of these other disabilities.  See 38 C.F.R. § 4.20; Butts, supra.  Therefore, the Board finds that Diagnostic Codes 5273 and 5274 are not applicable to the current appeal.  This is true at all times from July 28, 2009, and therefore the Board need not consider staging the rating.  Fenderson, supra.

Conclusion

As to the Veteran's claim that his disabilities are worse than rated, under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.


The Board further observes that, even if the available schedular evaluations for the disabilities are inadequate (which they are not), he does not exhibit other related factors such as those provided by the regulations as "governing norms."  In this regard, at the March 2009 VA examination he reported that his right foot disability had not caused him to lose any time from work in the last 12 month despite the examiner opining that it caused a significant occupational effect.  Similarly, at the September 2009 VA examination the Veteran reported that his right ankle disability did not affect employment.  Therefore, there simply is no objective evidence that either of his above disabilities, acting alone, result in marked interference with employment or frequent periods of hospitalization, meaning over and above that contemplated by his existing schedular ratings for these disabilities.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the schedular rating criteria.

In short, there is nothing in the record indicating the service-connected disabilities cause impairment with employment over and above that which is contemplated in the assigned schedular ratings.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is unwarranted.  Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995), and VAOPGCPREC 6-96 (August 16, 1996).


In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record.  In this regard, the Veteran is credible to report on what he sees and feels such as pain and lost motion and he and others are equally competent to report on what they can see and experience personally.  See Davidson, supra.  However, the Board finds more competent and credible the medical opinions as to the severity of his disabilities provided by the experts at the VA examinations than these lay assertions.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . .").  Many of the criteria used to rate the disabilities are objective, rather than subjective, so as an example are based on the results of specific testing and evaluation, not instead mere lay opinion.

In adjudicating this appeal for higher evaluations, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam), that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work because of the service-connected disability being rated.  So when this occurs, a TDIU claim is not a claim separate or distinct from an underlying increased-rating claim.  See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran:  (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability)).  


Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD).  Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim.

But there must be cogent evidence of unemployability in the record.  See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  Moreover, as explained in Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009), an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met.  And this was not the situation here inasmuch as the Veteran has never claimed that either of the above disabilities being rated prevents him from obtaining and/or maintaining substantially gainful employment.  Therefore, the Board finds that this decision need not additionally consider whether he is entitled to a derivative TDIU.

The Board also has considered the doctrine of reasonable doubt and, where warranted, used it partly as grounds for assigning a higher ratings.  However, in all other respects, as the preponderance of the evidence is against the Veteran's claims, this doctrine has not further application.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102 and 4.3.  See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  



ORDER

New and material evidence having been submitted, the Veteran's claim of entitlement to service connection for a low back disability is reopened, and to this extent only the appeal of this claim is granted.

The claim of entitlement to service connection for a left knee disability is denied.

The claim of entitlement to service connection for a right hip disability is denied.

The claim of entitlement to service connection for a left foot disability is denied.

However, an increased, 30 percent, rating for the right foot disability is granted, subject to the statutes and regulations governing the payment of VA compensation.

Also, a higher initial rating of 10 percent is granted for the right ankle disability retroactively effective from July 28, 2009, also subject to the statutes and regulations governing the payment of VA compensation..


REMAND

As to the newly-reopened claim for service connection for a low back disability, the record contains opinions from healthcare providers to the effect that the Veteran's service-connected right foot disability is causing his low back pain, presumably by him having to compensate for it, such as when standing or walking, etc..  See, for example, VA joints examination dated in July 2002; VA treatment records dated in August 2008; and Dr. Barone letter dated in October 2007.  However, mere pain without an underlying disease process is not a disability.  See Sanchez-Benitez, supra.  Moreover, while the RO obtained a VA opinion as to the relationship between the Veteran's underlying low back disability and his service-connected right foot disability in February 2009, the Board does not find the opinion adequate because the examiner did not provide an opinion as to whether the Veteran's underlying disease process of the low back (i.e., spinal stenosis and bulging disc) was either caused or aggravated by his service-connected right foot disability.  See 38 C.F.R. § 3.310; Allen, supra.  Therefore, the Board finds that a remand is required to obtain supplemental medical comment concerning this.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).

Similarly, as to the claim for service connection for a cervical spine disability, the record contains opinions from VA healthcare providers that the Veteran's service-connected right foot disability is causing cervical spine.  See, for example, VA treatment records dated in July 2008 and August 2008.  However, as noted above, pain without an underlying disease process is not a disability.  See Sanchez-Benitez, supra.  Therefore, the Board finds that this issue should be remanded to obtain a medical opinion as to whether the Veteran has any underlying disease process of the cervical spine and, if so, whether this underlying disease processes was caused or is being aggravated by his service-connected right foot disability.  See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); also see 38 C.F.R. § 3.310; Allen, supra.

As to the claims for service connection for bilateral shoulder disability, a psychiatric disability, and a gastrointestinal disability, the Veteran has claimed, in substance, that he has had symptoms of these disabilities (i.e., shoulder pain and limitation of motion; depression; and nausea and vomiting) both in service and since.  He is competent to make this proclamation.  See Davidson, supra.  Therefore, the Board finds that these claims also should be remanded to obtain a medical nexus opinion regarding his underlying disease processes and their relationship, if any, to his military service and/or an already service-connected disability.  Id.

In anticipation of these additional examinations, he should be notified that if he fails to once again show for his scheduled VA examinations, without good cause, VA will decide his claims based on the evidence of record.  See 38 C.F.R. § 3.655(b).

The record shows he receives ongoing treatment at the Burke VAMC and from Dr. Burton.  However, his post-February 2009 VA treatment records and post-July 2008 private treatment records are not in the claims file.  Therefore, while the appeal is in remand status an attempt should be made to obtain and associate these additional medical records with the claims file.  See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). 

Accordingly, these remaining claims are REMANDED to the RO for the following additional development and consideration:

1.  The RO should obtain and associate with the record the Veteran's post-February 2009 records from the Burke VA Medical Center.  All actions to obtain the requested records should be documented fully in the claims file.  If they cannot be located or no such records exist, the Veteran should be notified in writing.  

2.  The RO, after obtaining needed authorizations from the Veteran, should obtain and associate with the record all of his post-July 2008 treatment records from Dr. Burton.  All actions to obtain the requested records should be documented fully in the claims file.  If they cannot be located or no such records exist, the Veteran should be notified in writing.  

3.  After undertaking the above development to the extent possible, the RO should provide the Veteran with an orthopedic examination by an appropriate doctor to obtain medical opinions as to the diagnoses and/or origins of his low back, cervical spine, and bilateral shoulder disabilities.  The notice of the VA examination must be placed in the claims file and must notify the Veteran that if he fails to once again show for his VA examinations without good cause VA will decide his claims based on only that evidence already found in the claims file.  The claims file should be provided to the examiner in connection with the examination.  The examiner should conduct all indicated tests and studies deemed appropriate including X-rays and all clinical findings should be reported in detail.  After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions:

a.  Does the Veteran have an underlying disease process causing his cervical spine pain and, if so, what is its diagnosis? 

b.  As to each diagnosed low back, cervical spine, and shoulder disability, is it at least as likely as not (50 percent probability or more) that it was caused by his active duty or has continued since service?

c.  As to any arthritis of the low back, cervical spine, and/or shoulders, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year?

d.  As to each diagnosed low back, cervical spine, and shoulder disability, is it at least as likely as not (50 percent probability or more) that it was caused by any of his service-connected disabilities including his right foot disability?

e.  As to each diagnosed low back, cervical spine, and shoulder disability, is it at least as likely as not (50 percent probability or more) that it was aggravated by any of his service-connected disabilities including his right foot disability?

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disabilities (i.e., pain and limitation of motion) even when his records are negative for symptoms of or a diagnosis of a chronic disability and pain alone is not a disability.

If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. 

In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

4.  After undertaking the above development to the extent possible, the RO should provide the Veteran with a psychiatric examination by an appropriate doctor to obtain a medical opinion as to the diagnoses and origins of his psychiatric disability.  The notice of the VA examination must be placed in the claims file and must notify the Veteran that if he fails to once again show for his VA examinations without good cause VA will decide his claims based on only that evidence already found in the claims file.  The claims file should be provided to the examiner in connection with the examination.  The examiner should conduct all indicated tests and studies deemed appropriate and all clinical findings should be reported in detail.  After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions:

a.  Does the Veteran have a psychiatric disability and, if so, what is its diagnosis? 

b.  As to each diagnosed psychiatric disability, is it at least as likely as not (50 percent probability or more) that it was caused by his active duty or has continued since service?

c.  As to any psychosis, is it at least as likely as not (50 percent probability or more) that it manifested itself to a compensable degree in the first post-service year?

d.  As to each diagnosed psychiatric disability, is it at least as likely as not (50 percent probability or more) that it was caused by any of his service-connected disabilities including his right foot disability?

e.  As to each diagnosed psychiatric disability, is it at least as likely as not (50 percent probability or more) that it was aggravated by any of his service-connected disabilities including his right foot disability?

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disability (i.e., depression) even when his records are negative for symptoms of or a diagnosis of a chronic disability.

If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. 

In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

5.  After undertaking the above development to the extent possible, the RO should provide the Veteran with a gastrointestinal examination by an appropriate doctor to obtain a medical opinion as to the diagnoses and origins of his gastrointestinal disability.  The notice of the VA examination must be placed in the claims file and must notify the Veteran that if he fails to once again show for his VA examinations without good cause VA will decide his claims based on only that evidence already found in the claims file.  The claims file should be provided to the examiner in connection with the examination.  The examiner should conduct all indicated tests and studies deemed appropriate and all clinical findings should be reported in detail.  After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions:

a.  Does the Veteran have a gastrointestinal disability and, if so, what is its diagnosis? 

b.  As to each diagnosed gastrointestinal disability, is it at least as likely as not (50 percent probability or more) that it was caused by his active duty or has continued since service?

c.  As to each diagnosed gastrointestinal disability, is it at least as likely as not (50 percent probability or more) that it was caused by any of his service-connected disabilities including his right foot disability?

d.  As to each diagnosed gastrointestinal disability, is it at least as likely as not (50 percent probability or more) that it was aggravated by any of his service-connected disabilities including his right foot disability?

In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disability (i.e., nausea and vomiting) even when his records are negative for symptoms of or a diagnosis of a chronic disability.

If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies).  If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. 

In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the contended causal relationship; less likely weighs against the claim. 

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.

6.  The RO should thereafter readjudicate the claims.  If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided another SSOC.  The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issues remaining on appeal including 38 C.F.R. § 3.655(b).  A reasonable period of time should be allowed for response before the file is returned to the Board for further appellate consideration of these remaining 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs